House of Lords

Thursday 6th July 2023 Lords Chamber

Thursday 6 July 2023

11:00

Prayers—read by the Lord Bishop of Exeter.

International Anti-corruption Court

Thursday 6th July 2023 Lords Chamber

Question

11:06

Asked by

[Lord Hain]

To ask His Majesty’s Government what assessment they have made of proposals for an International Anti-Corruption Court.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, this Government are fully committed to ensuring that those responsible for the most egregious acts of corruption are held to account. We have considered the idea of an international anti-corruption court, including with 40 international partners in November last year. Together with them, we concluded that now is not the time to endorse a new, bespoke institution of this nature. However, the Government will set out their plans for combating transnational grand corruption in the second UK anti-corruption strategy later this year.

[Lord Hain (Lab)]

My Lords, I thank the Minister for his reply, but it is very disappointing. Money laundering represents over 5% of global GDP, or $2 trillion each year, yet there is no effective mechanism to prosecute kleptocrats, corrupt businesspeople, oligarchs or their professional enablers. Canada, the Netherlands, Ecuador, Moldova, Nigeria and the European Parliament have recently called for the establishment of an international anti-corruption court, as have over 300 leaders from over 80 countries, over 45 former Presidents and Prime Ministers and 30 Nobel laureates. A group of leading international jurists and other experts is now drafting a model treaty. Will the Government join with them now to tackle this terrible international scourge?

[Lord Ahmad of Wimbledon (Con)]

My Lords, while I appreciate the long-standing commitment and work of the noble Lord, where I disagree with him is that I believe that much has been achieved and is being done. As I said, we have consulted on this issue extensively; we continue to engage with the countries the noble Lord listed that are involved in the development of this concept. At the same time, as he and other noble Lords may be aware, the UK’s international corruption unit is a world-leading capability; it was set up in 2017 alongside the Five Eyes plus others. Much has been achieved: since 2017, the unit has received 247 referrals of grand corruption from over 40 countries and, as a result, has disseminated 146 intelligence reports, identified £1.4 billion-worth assets, and supported the freezing of £623 million-worth of assets and the forfeit and confiscation of £74 million. As I have said, our work continues. In 2022 alone, intelligence collated across these jurisdictions supported the identification of a further £380 million in stolen assets. We are working, and we are working in co-ordination. I appreciate the strong work the noble Lord has done in this area, but, as I have said, an international institution can be set up, as he will know from his own ministerial experience, only with the support of a broad range of partners. The Five Eyes partners are crucial, and we are working very closely with them.

[Lord Oates (LD)]

My Lords, in his speech at Chatham House earlier this year, the Development Minister, Andrew Mitchell, pledged that the Government would

“bear down on … the flows of dirty money which … represent money stolen particularly from Africa and African people”.

Can the Minister tell the House what steps the Government are taking to achieve that objective? Would not the establishment of an IACC play a key role in such efforts? The Minister said that world opinion is not in the right place, so could he tell us what he and the Government are doing to lead on this issue to ensure that we get to a point where world opinion is in the right place?

[Lord Ahmad of Wimbledon (Con)]

My Lords, this is an ever-evolving challenge, and I fully accept the principle that more needs to be done; we continue to work on that. The noble Lord raised issues about Africa, so I will give examples of the international corruption unit’s success. In March 2021, the first £4.2 million of assets stolen by James Ibori, the former governor of Delta state, were returned to Nigeria. In Malawi, the dual UK-Malawian national Zuneth Sattar is alleged to have defrauded the Malawian Government of billions of kwacha. The ICU has seized 19 properties in the UK, as well as cars, including a Lamborghini and a Bentley, owned by Mr Sattar. Those are two examples; in Angola and Nigeria, the Government and this unit have seen other successes. I assure all noble Lords that we continue to be very seized of these and are working very closely with our key partners. We have seen results since the establishment of the unit in 2017.

[Lord Kamall (Con)]

My Lords, given that the Government are not in favour of the proposal outlined by the noble Lord, Lord Hain, could the Minister say whether the Government are working via any of the international or intergovernmental organisations to tackle this issue of corruption and money laundering? Does he see that as a useful alternative to a new body such as a new court?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I assure my noble friend that we are. For example, there is a UN instrument of which we have been very supportive; it needs to be further strengthened, and we are working with key partners in the UN context to ensure that. I know of my noble friend’s interest in the Commonwealth; we are also looking at aiding and funding support structures in the Commonwealth. Going back to the previous question, a particular focus on Africa is a key part of our work in this respect.

[Baroness Whitaker (Lab)]

My Lords, I declare an interest as a former member of Transparency International UK’s council, and that my daughter works in this field. I put it to the Minister that a recent survey showed that 70% of those recently polled across the G7 and BRICS countries—whose populations account for the majority of the world—support the establishment of an international anti-corruption court to deal with cases that national Governments and their tribunals either will not or cannot handle. Could not the Minister, whose approach to this is welcome, use this fact to persuade his own officials that this is really worth backing?

[Lord Ahmad of Wimbledon (Con)]

My Lords, if I may be clear, the noble Baroness talks of the majority of the world’s population, but obviously the G7 does not include countries such as India. We remain focused on ensuring that we work with Governments to tackle issues of corruption. On the particular point that the noble Baroness raises, I too know of the vital work that institutions such as Transparency International, and the FCDO works very closely with them. Such bodies do inform our decisions but, as I said, we have considered this with other partners, including 40 other countries, and setting up a new international structure at this time is not something that has been supported. It needs that level of broad support. It does not mean it is totally off the table; it means that we continue to work in a co-ordinated fashion on some of the instruments that I have already highlighted. As I am sure the noble Baroness will accept, we are seeing real delivery and real results in terms of the seizure of assets and penalties imposed on those who commit these crimes.

[Lord Collins of Highbury (Lab)]

My Lords, I will pick up the point made by the noble Lord, Lord Kamall, on how we change world opinion on this subject. The president of ECOSOC recently said this accounts for 5% of global GDP—as my noble friend said—and that has a huge impact on sustainable development goals. We will not be achieving them because of this level of corruption. What assessment have the Government made of working within the UN to raise the profile of this issue? In particular, have they considered steps to promote a UN Convention against Corruption as a means of tackling this issue, so that we win world opinion?

[Lord Ahmad of Wimbledon (Con)]

My Lords, as I said in response to my noble friend, the UNCAC is one such instrument. In terms of its effectiveness, that is something that needs to be bolstered further; it needs to be adapted and reflective of some of the challenges that we are all aware of—the use of technology, for example, that feeds some of these crimes. I assure the noble Lord that we are working through all the existing structures. He is right: we need to ensure that those that have a transnational approach, particularly the UN structures, are further bolstered. There are, I think, further meetings planned for later this year. As the Minister responsible for this area in the FCDO, I am working not just with key partners within the Five Eyes, as I have illustrated, but also further afield, including in areas such as the Gulf.

[Lord Alton of Liverpool (CB)]

My Lords, in proceedings on the economic crime Bill, the Minister’s noble friend Lord Sharpe of Epsom kindly agreed to the principle of the all-party amendment to that Bill on what to do about sanctioned assets—a point the noble Lord, Lord Hain, was raising. The noble Lord, Lord Sharpe, agreed to bring forward secondary legislation before the end of this calendar year. Given what the Minister has said about the importance of departments working with one another, can he give us an assurance that the FCDO will be co-operating regularly with the Home Office to bring forward that secondary legislation? Will he look again at the parliamentary oversight of things such as the Magnitsky sanctions, so we can understand the rather opaque way in which some of those are decided?

[Lord Ahmad of Wimbledon (Con)]

My Lords, on the noble Lord’s second point about Magnitsky sanctions, I am very proud of the fact that we have strengthened our work in that respect. Later today, we will also be discussing, through a Statement, some of the additional steps we have taken using those very levers. The important thing about the sanctions that the United Kingdom deploys is that there is legal oversight. There is a real robustness for those institutions, organisations and individuals that may feel that they have been unjustifiably sanctioned, and that is a strength of the UK law. On the noble Lord’s earlier point, the noble Lord to whom he referred is not only a noble friend but also a dear friend, and I assure the noble Lord that there is full co-operation across all government departments.

Gross Domestic Product: Wales and the UK

Thursday 6th July 2023 Lords Chamber

Question

11:16

Asked by

[Lord Wigley]

To ask His Majesty’s Government what are their latest figures for the gross domestic product per head of population for (1) Wales, and (2) the United Kingdom.

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

My Lords, the latest Office for National Statistics data show that in 2021 gross domestic product—GDP—per head, at current prices, was £25,665 for Wales and £33,745 for the UK. The UK Government have made significant interventions aimed at boosting GDP in Wales and across the UK, including the £4.8 billion levelling-up fund, the £2.6 billion UK shared prosperity fund and delivering on investment zones and freeports.

[Lord Wigley (PC)]

My Lords, do these figures not speak volumes? They underline the failure of successive Governments to close the gap between Wales and England. With the relevant economic levers being shared between Whitehall and Senedd Cymru, is it not essential that the two co-operate on these economic matters? Does the Minister appreciate how much this is undermined by the refusal of the Chief Secretary of the Treasury to attend the Senedd’s finance committee? Is she aware that her colleague, the noble Lord, Lord Bourne, told that committee in Cardiff last week that a duty should be placed on the Chief Secretary to attend such committees when required? He said that

“if it needs putting on a statutory basis … that needs to happen”.

Does she agree?

[Baroness Penn (Con)]

My Lords, perhaps I can provide a little reassurance to the noble Lord. Yes, the gap between GDP per head in Wales and the rest of the UK is too large, but Wales has had the highest growth in GDP per head since 2010 of all regions and nations across the UK, increasing by 15.7% compared with 6.9% across the UK. He talked about the Welsh Government and the UK Government working together. That is something that we have done successfully on city and growth deals across Wales that were developed jointly by the UK Government and the Welsh Government. This included £500 million for the Cardiff capital region and over £100 million in north Wales and Swansea. On his point about the Chief Secretary to the Treasury, he works hard and closely with the devolved Administrations—I know that is something he is very committed to—but I will take the noble Lord’s specific point away.

[Lord Anderson of Swansea (Lab)]

My Lords—

[Lord Browne of Ladyton (Lab)]

My Lords—

[Baroness Williams of Trafford (Con)]

My Lords, I think that noble Lords need to decide between them which one of them will speak.

[Lord Anderson of Swansea (Lab)]

May I invite the Minister to examine all the relevant indices of poverty and deprivation? She will find that Wales is mostly at the bottom, with 75% of the average, whereas the Government in levelling up concentrates simply on north-south. Should not the Government by contrast look also at the east-west divide?

[Baroness Penn (Con)]

I reassure the noble Lord that levelling up is not viewed through the prism that he says it is. When it comes to the looking at the needs in Wales and the funding to be matched to them, that is what we do through the Welsh fiscal framework. In the 2021 spending review, the largest annual block grant in real terms was assigned to Wales since the devolution Acts were passed.

[Baroness Humphreys (LD)]

My Lords, for around 20 years, west Wales and the valleys qualified for EU Objective 1 funding, precisely because our GDP was among the lowest in the EU. With the figures for Wales published in May showing a decrease of 2.1% in GDP over the longer term in Wales, compared with the figures for the rest of the UK showing an increase of 2%, are we in Wales, in the Minister’s opinion, facing a short-term blip, or are we heading for a gradual return to our pre-Objective 1 status, as a result of the loss of EU funding?

[Baroness Penn (Con)]

The statistics that the noble Baroness refers to are more experimental than the ones that I used in my Answer, but they are being refined all the time and they can be subject to greater volatility due to the smaller size that they represent. However, the Government are delivering on their commitment to replace European funding in Wales. As I set out in my earlier Answer, that is just one of the UK Government’s investments in Wales that recognise its great potential to grow even further.

[Lord Browne of Ladyton (Lab)]

My Lords, talking of figures speaking volumes, the Minister will be aware that last month the annual fraud indicator for the United Kingdom, which of course includes Scotland and Wales as well as England and Northern Ireland, assessed it at £219 billion. Are those fraudulent transactions, the muling of that money and the transfer of it from shell company to shell company, and the export of it in crypto assets, counted as economic activity and therefore aggregated into GDP? When the money comes back into the country to buy houses and land, works of art and other things, is it counted as inward investment?

[Baroness Penn (Con)]

The classification of these matters is for the ONS, and I shall get the ONS to write to the noble Lord.

[Lord Livermore (Lab)]

My Lords, the Government’s approach to levelling-up funding has forced local authorities throughout the UK to compete in a process that lacks any published criteria. In the second round of allocations earlier this year, local communities across each of the four nations of the UK, including Wrexham, Moray, Bolsover and Belfast, each had bids rejected without any public explanation. Ahead of the third round of levelling-up funding, will the Minister work with ministerial colleagues, the devolved Governments and local authorities to improve the transparency of the bidding process so that cities, towns and villages across the UK can have access to funding that is both fair and seen to be fair?

[Baroness Penn (Con)]

Just to reassure the noble Lord with regard to Wales, in the first two rounds of the levelling-up fund, £330 million has been invested so far. That exceeds the commitment that 5% of those funds would be invested in Wales, but we always seek to improve our processes around those issues, and I shall happily commit to working with colleagues in the Department for Levelling Up to make sure that we build on the success that we have had so far with this fund.

[Lord Berkeley (Lab)]

My Lords, will the Minister take forward with much more vigour the idea of Celtic Sea offshore wind, which can only really be built in places such as Port Talbot, where there is deep water and lots of land? That might help redress some of the economic disasters that other noble Lords have spoken about.

[Baroness Penn (Con)]

My Lords, the UK has an excellent track record in delivering offshore wind, and I am sure that that will continue. As I have said, we are investing across Wales, and that includes two freeports in Wales—the Celtic Freeport and the Anglesey Freeport, which will both be backed by policy and planning permissions, as well as up to £26 million in funding in each area.

[Lord Bird (CB)]

My Lords, as long as there is a situation in government where most of the money spent is on emergency situations and coping with poverty and very little is spent on prevention of poverty and skilling people away from poverty, we will continue arguing about GDP and whether it is high or low in Wales or England. We do not spend money on dismantling poverty—we spend it on making the poor as comfortable as possible.

[Baroness Penn (Con)]

My Lords, I agree with the noble Lord about the importance of investing in prevention. That is why we have invested in our education system, and we have seen our educational outputs improve under this Government. It is why we are investing in prevention in our NHS. We also need to capture the importance of other aspects that contribute to our country when we look at these matters. That is why we are looking at incorporating measures when it comes to well-being, for example, and not just looking at the narrow measures of GDP.

[Lord Hain (Lab)]

My Lords, if the positive economic figures that the Minister cited for Wales are correct, is that because we have a Welsh Labour Government?

[Baroness Penn (Con)]

It is hard to tell from the other side whether there is a success story or not when it comes to Wales. I think that the best success comes when the UK and Welsh Governments work together in the interests of the people of Wales, and the record that we can see is testament to that.

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

My Lords, can I ask a question where I think, for once, the noble Baroness, who is an excellent Minister, might be able to give me a positive answer? The Advocate-General for Scotland has agreed, at my request, to instruct his officials to investigate ultra vires expenditure by the Scottish Government. That is a great step forward. Can the Minister give an assurance that her officials in the Treasury will work co-operatively with the Advocate-General’s officials?

[Baroness Penn (Con)]

I can give the noble Lord that assurance.

Zimbabwe

Thursday 6th July 2023 Lords Chamber

Question

11:27

Asked by

[Lord Oates]

To ask His Majesty’s Government what representations they have made to the government of Zimbabwe regarding the detention of opposition Deputy Chairperson and Member of Parliament Job Sikhala, who has been incarcerated for over a year in Chikurubi Maximum Security Prison and denied bail on 15 occasions.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, the United Kingdom is concerned by the ongoing detention of government critics in Zimbabwe, including Job Sikhala MP. The Minister of State for Development and Africa raised these concerns, and the case of Job Sikhala specifically, with Zimbabwe’s President Emmerson Mnangagwa, when they met in the margins of His Majesty the King’s Coronation last month.

[Lord Oates (LD)]

My Lords, I thank the Minister for that Answer. I welcome to the Public Gallery Steven Van Zandt and Jerry Dammers, musicians and songwriters who have done so much to campaign for freedom and justice in southern Africa. Does the Minister agree that today freedom and justice are under vicious assault in Zimbabwe? Will he and his ministerial colleagues work with SADC Ministers and the Commonwealth to make it clear to ZANU-PF that there can be no return to normal relations until Job Sikhala and all political detainees are released, political violence stops, and genuinely free and fair elections take place?

[Lord Ahmad of Wimbledon (Con)]

My Lords, first, I acknowledge the noble Lord’s insights and expertise on all issues to do with Zimbabwe. He knows the country very well, and I appreciate his tabling of the Question. With regard to the specific issue of human rights and the importance of progressing on human rights before the elections on 23 August, I assure the noble Lord that we are engaging with all key partners. As he is aware, Zimbabwe is very keen to progress its membership of the Commonwealth, and human rights are a pertinent part of that assessment. I know that we are working very closely with the secretariat in that respect. Ultimately, if Zimbabwe rejoins the Commonwealth, it will be a matter for all members of the Commonwealth, so it needs a cross-Commonwealth approach.

I assure the noble Lord also that we are fully seized with the different abuses of human rights, which regrettably and tragically continue to happen. Even this morning, I have heard of further arrests in that respect. The information is still coming through, but I am aware of further arrests that have been made. We have called for full transparency and the release of those being held in an arbitrary fashion and, indeed, when cases are being pressed, that those court cases are held in a transparent form.

[Lord Bellingham (Con)]

My Lords, I am grateful to the Minister for his reply about Job Sikhala but it is not just Job Sikhala who has been arrested: six students have been arrested for doing nothing more than protesting against politicians being arrested. Emmanuel Chitima, Comfort Mpofu, Lionel Madamombe, Benjamin Watadza, Darlington Chigwena and Gamuchirai Chaburumunda may have exotic names but they are not being kept in exotic conditions. They are in prison for protesting, perfectly legally and freely. We must wake up to the fact that Emmerson Mnangagwa is actually more of the same after the evil Mugabe.

[Lord Ahmad of Wimbledon (Con)]

My Lords, my noble friend raises a number of cases and I assure him that we are fully aware of them. We remain deeply concerned by the failure to address the allegations of abduction and abuse of opposition members. There are also the cases of Joana Mamombe—which he has raised—Cecilia Chimbiri and Netsai Marova. I assure noble Lords that we have raised our concerns with the Government and have publicly called for full investigation into these allegations. If Zimbabwe wishes to be counted among those countries that are recognised for progression not just bilaterally but, importantly, within multilateral organisations, it is vital that it stands up and ensures transparency of justice systems. It must also ensure that those who are taken and arrested are done so on transparent charges and that if they are not held on any substantial charges, they are released. Freedom of speech, freedom of the press and freedom of protest are key parts of any progressive democracy.

[Baroness Hoey (Non-Afl)]

My Lords, many of us warned for many years that Mnangagwa would be worse than Mugabe, particularly because of his years of repression and what happened in Matabeleland. He is clearly not going to change and, sadly, things such as an invitation to the Coronation do not help—they help him in Zimbabwe. Does the Minister accept that it is very unlikely that there will be genuinely free and fair elections in Zimbabwe in August? We saw just last night a very well-respected human rights lawyer, Obey Shava, being beaten almost to death by ZANU-PF thugs. Is it not time for us to stop pandering to Mnangagwa and to condemn what is happening right throughout the country loudly and clearly to the international world?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I also welcome the noble Baroness’s deep insights and expertise on Zimbabwe. I am aware of the case this morning—as I sat down, I got an update on the alleged attack on the lawyer. I am in the process of getting further information on that attack and will update the House and the noble Baroness accordingly. I agree with her that the actions we have seen from the President of Zimbabwe and his Government, particularly on areas of legislative change which they are also bringing into force, are of deep and alarming concern because they mean the suppression of civil society within Zimbabwe. As I said, these are key tenets of any democratic reform and an open and vibrant civil society is a key part of that. I assure noble Lords that we want to work very constructively on this agenda. There is a lot of expertise in your Lordships’ House and we want to leverage that to ensure that we can continue to make the case pertinently and forcefully and, one hopes, ensure progression on the ground.

[Lord Collins of Highbury (Lab)]

My Lords, on that final point, the Minister knows that I have stressed the importance of civil society. When states fail their citizens, it is civil society that stands up for human rights. I have urged the Minister to support civil society in the broadest terms, including trade unionists who have been under attack in Zimbabwe. What are the Government and the FCDO doing to contact global trade union institutions so that it is not just our voice but voices throughout the world that condemn this action and can promote a free and fair election? Will the Minister assure me that he will contact international trade union institutions?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I can give the noble Lord that assurance and as he will have extensive contacts in this respect, particularly with a focus on Zimbabwe, I would welcome his insights into the key components, organisations and individuals. I assure the noble Lord that we have engaged directly with the Government of Zimbabwe, particularly on the PVO amendment Bill and the so-called patriotic amendments. That Bill would extend state control over civil society organisations, the whole point of which is to challenge Governments. We are making that point very forcefully to the Zimbabwean Government directly.

[Lord St John of Bletso (CB)]

My Lords, ahead of the general election in Zimbabwe on 23 August this year, what assurances have His Majesty’s Government been given on international election observers for this election and an updated election register?

[Lord Ahmad of Wimbledon (Con)]

My Lords, ultimately, of course, it will be for the people of Zimbabwe to choose their Government in August. My right honourable friend the Minister for Development and Africa reiterated these points in the meeting he had with the President of Zimbabwe on 5 May. There has been some progress; for example, the announcement by Zimbabwe that invitations have now gone out to observer missions for the elections. It is important that international and domestic observer missions, including those of SADC, the EU and the AU, are able to independently observe the 2023 elections. We are also talking to the Commonwealth about its role within the context of the elections. We are also aware of a petition submitted to Ministers calling for Zimbabweans in the diaspora to be granted the right to vote in the elections to ensure greater engagement and direct involvement of Zimbabweans across the world. I will continue to update the House but I assure all noble Lords that the onus is very much on the Government of Zimbabwe to ensure that all citizens can vote. The UK continues to press that point to them.

[Lord Purvis of Tweed (LD)]

My Lords, the Minister referred to Zimbabwe’s desire to re-enter the Commonwealth. Further to the questions from the noble Lord, Lord Bellingham, and my noble friend regarding political detention, will the Government outline in clear terms in advance of the elections the criteria we would set for the UK Government to consider what the human rights record should be, especially for political prisoners?

[Lord Ahmad of Wimbledon (Con)]

My Lords, the noble Lord will be aware that the criteria for readmission to the Commonwealth are not just for the UK Government to set; it is for all Commonwealth countries. There are 56 in total and the decision on whether Zimbabwe rejoins the Commonwealth is for all Commonwealth members. I assure the noble Lord that the UK will support readmission if Zimbabwe meets the admission requirements, which are very focused on human rights, and complies with the values and principles set out in the Commonwealth charter.

Hong Kong: Bounties for Exiled Pro-democracy Activists

Thursday 6th July 2023 Lords Chamber

Question

11:37

Asked by

[Lord Alton of Liverpool]

To ask His Majesty’s Government what action, if any, they have taken in response to the issuing of arrest warrants, including offers of bounties, by police in Hong Kong for eight self-exiled pro-democracy activists.

[Lord Alton of Liverpool (CB)]

My Lords, in begging leave to ask the Question standing in my name on the Order Paper, I declare a non-financial interest as the patron of Hong Kong Watch.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, as my right honourable friend the Foreign Secretary said, we will not tolerate any attempts by the Chinese authorities to intimidate individuals in the United Kingdom. Let me be absolutely clear: Hong Kong’s national security law has no jurisdiction here. As the noble Lord will be aware, we suspended our extradition agreement with Hong Kong indefinitely in 2020. We continue to call on Beijing and Hong Kong to end the targeting of those who stand up for freedom and democracy.

[Lord Alton of Liverpool (CB)]

My Lords, as always, I am grateful to the Minister for his response. But with bounties of 1 million Hong Kong dollars now on the heads of eight exiled Hong Kongers, 1,200 pro-democracy activists and advocates incarcerated in Hong Kong, including the British citizen Jimmy Lai, and seven parliamentarians—two from your Lordships’ House—sanctioned by the Chinese Communist Party, how can the Minister justify the Government’s decision to send a Trade Minister from your Lordships’ House recently to Hong Kong to deepen business ties? How does he respond to the calls last night from his noble friend, the noble Lord, Lord Patten of Barnes, and the noble and learned Lord, Lord Falconer of Thoroton, calling on the remaining British judges to withdraw from the Hong Kong courts rather than giving them the thin veneer of respectability?

[Lord Ahmad of Wimbledon (Con)]

My Lords, on the noble Lord’s second point, he will be aware that we have been very critical of the fact that the justice systems in Hong Kong are not as per the agreement signed with the United Kingdom Government when we ceased our control of Hong Kong. Many individual judges have made key decisions and we hope that those who are still operating in Hong Kong will continue to consider their own status and professional standing in light of decisions they make for the future.

On his first point, of course we recognise the issue of those who have been sanctioned: that is why my right honourable friend the Foreign Secretary recently met those British parliamentarians who have been sanctioned, and those meetings will continue. We are also aware that the noble Baroness, Lady Kennedy, has highlighted the recent warrants issued to people within the United Kingdom. That is why it is important to emphasise the suspension of that extradition treaty.

On the third element, the Trade Minister’s visit, of course we have relations with China; we continue to have diplomatic relations. I have said before from the Dispatch Box that we have many disagreements with China; I am the Human Rights Minister. We have campaigned and led the charge, for example, on statements on Xinjiang, which I am very grateful for the noble Lord’s input into, but equally we recognise that there are key global issues where China has a role to play and where engagement is important. When we have engagement on the trade side, my noble friend Lord Johnson also raised the important issue of human rights directly and publicly during his visit.

[Lord Howell of Guildford (Con)]

My Lords, I think it probably is time for the remaining British judges to withdraw from Hong Kong—I think that is in the Minister’s mind as well. Although the British never offered full democracy to Hong Kong, at least we did not go around hunting distinguished pro-democracy campaigners, putting bounties on their heads and trying to arrest them in the middle of the night. Will he nudge his colleagues to remind their Chinese counterparts again that if China ever wants to be treated seriously as a civilised nation, it has to behave in a much more civilised and less thuggish way?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I agree with my noble friend. It is important that, if China wishes to sustain and strengthen the position of Hong Kong on the global stage, it not only adheres to what it was a signatory to but recognises that there are important elements in recognising the vibrancy of any financial centre. I spent 20 years in the financial services sector and dealt extensively with areas in China and Hong Kong. One of the points we need to emphasise as a Government is that the vibrancy of a financial centre is protected through the transparency of justice systems and the very transparent application of laws. The national security law in China is set up to intimidate, prosecute and arrest and detain innocent individuals, Jimmy Lai being just one example. I assure my noble friend that we will continue to make that case forcefully, directly and bilaterally, to the Chinese Administration as well as to those in authority in Hong Kong.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, as your Lordships know, along with the noble Lord, Lord Alton, I have been sanctioned by the Chinese, and it is not just me but my whole family. The long arm of China is something we have to be very conscious of. It is now described by lawyers internationally as transnational suppression. Many nations are now doing this: their reach goes beyond their own borders when they oppress their citizens. We have seen it with Russia and Iran and we are seeing it with China. What concerns young Hong Kongers who live in this country is that they might not be able to travel. They are fearful that, in transit, they will be arrested by less hospitable, less human rights-concerned nations and transported back to either Hong Kong or China to be prosecuted.

The threat to the safety of those who have had these bounties placed on their heads is very serious and real. We have to remember that a police station was set up in Glasgow where arrests could be made and intimidation applied to people who have settled in this country because of their fears. I ask the Minister, who I know is very sensitive to all this, what the Government are doing in their conversations with China and with the leaders in Hong Kong. Why are more of them not put on targeted Magnitsky sanctions lists? I want to hear what the Government do when they meet Chinese officials.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I know these things directly from our conversations and I am grateful to the noble Baroness for her valuable insights. Equally, I know the great challenges imposed on many colleagues, both in this House and in the other place. Indeed, there are members of His Majesty’s Government who are now Ministers and are subject to the sanctions she listed. On the issue of future Magnitsky sanctions, I am proud of our record across the piece. We continue to look at all our levers to ensure that those who commit egregious abuses of human rights are held to account.

On the specific transnational issues, my right honourable friend the Security Minister, Tom Tugendhat, who has himself experienced the impact of sanctions, has been directing the Defending Democracy Taskforce to review our UK approach to transnational repression, specifically with China and Hong Kong. Let me be very clear: there are three major things we ask consistently. We call on Beijing to remove the national security law; that has to happen. We consider China to be in an ongoing state of non-compliance with the Sino-British joint declaration, which is why we suspended our extradition agreement. We continue to work with other partners, including agencies such as Interpol, to ensure that there are no abuses of these international agencies as well.

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, the noble Baroness, Lady Brinton, is participating remotely.

[Baroness Brinton (LD) [V]]

[Inaudible.]

[The Lord Speaker (Lord McFall of Alcluith)]

I think we will proceed otherwise.

[Baroness Meyer (Con)]

My Lords, what specific steps will the Government take to work with our international partners to protect those eight individuals?

[Lord Ahmad of Wimbledon (Con)]

My Lords, we do work with our international partners, but we also ensure that particularly those under UK jurisdiction are fully protected. Individuals who may be at heightened risk are provided full support, including protective security guidance and other measures where necessary. I will not go into the specific details, but I assure my noble friend that we work with key partners to ensure that these protections are afforded not just in the United Kingdom but, as has been indicated by two noble Lords with their own concerns and those of their families, when they travel internationally.

[The Lord Bishop of Exeter]

My Lords, I thank the Minister for his answers, but does he not agree that this case is yet further evidence for the revisionist tendencies of the Chinese Government when it comes to human rights? This tendency will only intensify as China tries to use its economic and political muscle to mute its critics, so does it not underscore the importance of His Majesty’s Government working tirelessly to revive the spirit of universality that originally inspired the human rights project in upholding core rights and freedoms?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I agree with the right reverend Prelate. China is a member of many international organisations, including as a P5 member of the United Nations. It continues to subscribe to many of the key charters of these organisations, including the UN, and what he has related is very much part of its alignment with them. We need to keep making the case. The economic dependence of many countries across the world is very clear. That economic dependency extends not just to a five-year or 10-year period but is often across a generation, and we need to ensure that there are alternatives. It is not enough just to say that we are standing up for the principles against the sometimes disabling effect of some of the quite eye-watering deals that are done; we need to ensure that we work with key partners to offer co-ordinated alternative responses for long-term infrastructure and development in key parts of the world.

Ukraine: Zaporizhzhia Nuclear Power Plant

Thursday 6th July 2023 Lords Chamber

Private Notice Question

11:49

Asked by

[The Lord Bishop of St Albans]

To ask His Majesty’s Government (1) what assessment they have made of recent developments at the Zaporizhzhia Nuclear Power Plant and (2) what contingency plans are being made in the event of the power plant being damaged.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, we remain gravely concerned about the implications of Russia’s illegal invasion of Ukraine for nuclear safety, security and safeguards. We take President Zelensky’s concern about possible Russian threats to the Zaporizhzhia nuclear plant, which is currently under illegal Russian control, extremely seriously. We are in regular contact with Director-General Grossi of the International Atomic Energy Agency and with the highest levels of the Government of Ukraine regarding the situation at the nuclear power plant. Working with our international partners, we continue to call for Russia to grant the IAEA full access to the nuclear plant, as called for by Director-General Grossi on 5 July. It is vital that IAEA staff have full access to the nuclear plant in order to monitor the safety and security of the site. Let me assure the right reverend Prelate that the Government also have well-developed and tested contingency plans to cover a range of eventualities.

[The Lord Bishop of St Albans]

I thank the Minister for his reply. Obviously, anything we can do to work with our international partners to put pressure on Russia to allow the IAEA access to the site, as it has requested, is now of utmost importance. I hope that the Minister will do all he can in talks with our international partners to put that pressure on Russia. Can he give any more information about our own domestic contingency plans, in the event of a nuclear disaster of some sort taking place on the site?

[Lord Ahmad of Wimbledon (Con)]

My Lords, first, as the right reverend Prelate may be aware, much of the site has been scaled down, in terms of its direct energy provision. There is currently only one operating generator on the site, and even that has been scaled down sufficiently and specifically for this purpose. Of course, the risk remains very high, but we have been assured by the IAEA that there is no immediate threat. I caveat that by saying that Director-General Grossi’s requirements and requests for full access to the site are important, and we are working through those with international partners, including countries with key influence over Russia, because that is vital in order to reassure people not only in Ukraine, but across the wider area and region.

[Lord Collins of Highbury (Lab)]

My Lords, I very much welcome the Minister’s response; obviously, it is key to get proper access for full inspections. The United Kingdom now assumes the presidency of the Security Council—I know the Minister will be going to New York shortly. What are the opportunities to raise this question directly with counterparts at the Security Council? This is a danger with no limitation in terms of country boundaries; it could spread throughout the world and cause untold damage. It is essential that we take action at the Security Council.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I assure the noble Lord that we are doing just that. It will be of no surprise to your Lordships’ House that this is one of the key priorities, if not the number one priority, regarding Ukraine as a whole. My right honourable friend the Foreign Secretary has engaged quite directly; for example, he met Director-General Grossi during the Ukraine Recovery Conference to ensure that the exact requirements are fully understood. The noble Lord raises a valid point about our presidency of the UN Security Council and my right honourable friend the Foreign Secretary himself will be presiding over the session on Ukraine.

Unfettered access is key, particularly when we think about events that have damaging effects reaching far beyond the illegal war that Russia continues to wage. We have already seen, following the destruction of the dam, the damage caused by floating mines and the damage to agricultural land by pollutants. The effects of this war will be long lasting. I assure the noble Lord that we will engage on all these key elements during our presidency of the UN Security Council.

[Lord Hannay of Chiswick (CB)]

My Lords, does the Minister recognise that, since Russia illegally seized control of the Zaporizhzhia nuclear plant, its behaviour has not been consistent with even the rather feeble international protocols that deal with nuclear plants in zones of conflict? Does he agree, therefore, that we should be thinking of strengthening those international protocols? If there are to be more nuclear power stations around the world—which is something that many of us would support—some of them will end up in conflict zones and stronger protocols will be needed to safeguard them. Can the Minister also give the thanks of this House to the director-general of the IAEA for the work that he has been doing to keep things more or less under control?

[Lord Ahmad of Wimbledon (Con)]

I assure the noble Lord that, on his second point, we will relay that to the director-general. On his first point, the missile attack on 9 March, which cut off the power supply to the Zaporizhzhia plant, has meant that contingency plans have been put in place, such as back-up generators. There are also now IAEA monitoring missions at all Ukrainian nuclear power plants across the country, and the United Kingdom is providing technical support to help the IAEA to fill, or backfill, any positions to keep all its priorities on track.

[Lord Purvis of Tweed (LD)]

My Lords, the concern that the IAEA has raised, in the very careful statement referred to by the Minister, brings the need for urgent talks through the review committee mechanisms of all the nuclear powers. At the end of this month there is due to be a preparatory committee meeting in Vienna, leading to the 2026 review committee of the NPT of all the nuclear powers. Does the Minister agree that there is a case for bringing forward that review conference quite urgently? The use of nuclear weapons, as well as the Government’s approach on domestic energy production by nuclear powers, is now an urgent matter, given the concerns. Bringing forward the conference would allow some of the discussions, as the noble Lord, Lord Hannay, suggested, to take place.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I note what the noble Lord has said about the NPT, which I will certainly take back to the department. The noble Lord will be acutely aware that one party to the NPT happens to be a country called Russia. Let us not forget that, when the invasion started in February last year, Mr Putin himself had signed the NPT just before on 4 January, yet his rhetoric—thankfully not his actions—has since followed a very different trajectory. While I agree with the noble Lord about the importance of co-operation, we must keep the NPT at the forefront of our minds; Russia is a signatory, but it is not just about signing documents, it is also about abiding by them.

[Lord Cormack (Con)]

My Lords, we all remember Chernobyl. Is there not a case, following something that my noble friend said a few moments ago, to call in Commonwealth countries and discuss with countries such as South Africa and India—which for reasons entirely beyond me are giving succour and support to Russia—that this could indeed be an international disaster beyond limit? If this wretched plant erupts in the way that Chernobyl did, who knows when the end will come.

[Lord Ahmad of Wimbledon (Con)]

My Lords, first, on the plant itself, I reiterate my earlier point: from the indications in the IAEA’s assessment reports, there is no imminent threat or challenge. That is why it is important that the IAEA is given full and unfettered access to make a comprehensive assessment. The nuclear plant has been much dialled down in terms of its capacity and energy production.

My noble friend talks about other key international partners. It is important to reflect that, in votes this year at the United Nations, which I have been involved with indirectly, we have seen a consistent level of 140-plus countries voting. With 193 countries in the UN, that is a very positive voting result for Ukraine’s position. On the countries mentioned by my noble friend, I note that, while they have long-standing relationships with Russia—the likes of India have historically had a strong military reliance on Russia—their abstentions should be put in context. They have not supported Russia’s position but have sought to abstain. Of course, we are aware of some of the meetings and diplomacy being undertaken currently by Russia, and I assure my noble friend that, in the context of bigger countries such as South Africa and India, we make a very strong case that the war on Ukraine cannot be underestimated; it is an illegal war on a sovereign territory, which is now being occupied by Russia, a P5 member of the United Nations.

That is compounded by the issue we are now talking about—the nuclear power plant. The direct results are not just an energy crisis in Europe, but a global food security crisis. We have seen the environmental damage caused by the pollutants that are now affecting the Dnipro river; the Black Sea grain initiative is also being impeded and the economies of countries in Europe and North Africa in particular are being directly challenged. The reality of this war is not limited to two countries or to a continent; it is a global challenge and we need to address it collectively.

[Lord Wigley (PC)]

My Lords, does the Minister accept that the first priority must be ending this war and safeguarding that nuclear plant in Ukraine? Does he recall that, following the Chernobyl disaster, a radioactive cloud was blown over the UK and deposited radioactive fallout on to the Welsh hills? That led to sheep being held back from the food chain for many months, undermining agriculture. Could he therefore give an assurance that, in looking at these implications, he will consult the farming unions to see what steps could be held in reserve in case this happens again?

[Lord Ahmad of Wimbledon (Con)]

My Lords, of course I will listen to the wise counsel of the noble Lord, and I will take that back. However, in preparing both for this Private Notice Question and our general approach to support for Ukraine, I am reassured that the wider implications are very much understood. I assure the noble Lord, as I have said repeatedly on a raft of different issues, that on any challenge in foreign policy we never forget our own back yard. The first priority of any Government is the security of their citizens, and we take that very seriously. I will follow up on the noble Lord’s point.

[Lord Browne of Ladyton (Lab)]

My Lords, in respect of the plant itself, it is important that the IAEA gets in to find out whether there are explosive devices on top of two of the reactors, why they would be put there and what likely damage they would do if they exploded. It is suggested that they are there for it to appear as though the Ukrainians have bombed the plant themselves. The most important thing here is not to get confused between perceived dangers and real dangers. This plant is of a particular design. My understanding is that the most dangerous nuclear fission that could come from it will have been depleted because it has not been working for months—I think it is iodine-113, though this is not from my expertise but from my reading. We need an authoritative explanation of the risks, from a nuclear engineer of repute, telling us what the potential consequences would be of further damage to this plant—not speculation by people from their recollections of previous incidents. This is a distinctive plant that was created in a particular way. My understanding is that we can be reassured that, while it would not be a good thing to happen and there would be significant local consequences, this is not a repeat of Chernobyl.

[Lord Ahmad of Wimbledon (Con)]

The noble Lord is well-informed by his reading, and his is very much an accurate assessment. This particular plant is much more modern and state-of-the-art. The fact is that most of its activities and energy generations have been turned down—indeed, most of the reactors are now not operational. Even without inspections, that assessment can be made. However, I add the necessary caveat that all of us, including Russia, will get reassurance when the IAEA can get access and, as the noble Lord said, there is an expert opinion on the table that we all recognise. This war will continue but it is in Russia’s interests, not just Ukraine’s and everyone else’s, to allow access. Russia itself has been a signatory to ensuring that this kind of access and assessments of facilities are done regularly, accurately and comprehensively.

[Lord Harris of Haringey (Lab)]

My Lords, I refer to my interest as chair of the National Preparedness Commission. I am not sure that the Minister answered the supplementary question from the right reverend Prelate, which was very much about what is actually being done in this country in the event of this happening and it being on the more severe end of concerns. First, could he specifically tell us what guidance has been provided to local resilience forums as to what they should be doing and preparing for? Secondly, what contingency arrangements have the Government put in place for communications with the general public to deal with any panic, concerns or legitimate fears that there might be?

[Lord Ahmad of Wimbledon (Con)]

On the second point, the noble Lord himself will know that there is comprehensive contingency planning by any Government. This is the case with successive Governments—we will seek to mitigate against all eventualities, all risks and all concerns, and we will seek to prepare for them. On the issue of communication and more access to information and information that can be shared, I will take back what the noble Lord has suggested. I have been assured that, from a cross-government perspective, all the key agencies that need to be involved are fully involved. I cannot stress enough, as the noble Lord, Lord Browne, said in a previous question, that this plant, compared to those of previous nuclear incidents such as Chernobyl, is very different. However, I have been very careful to caveat that, because only when we get a full comprehensive assessment can we make a full overall assessment. Mitigations, assessments and contingency planning are very much in place. If there is further information to be shared, I will share it.

Online Safety Bill

Report stage
Thursday 6th July 2023 Lords Chamber

Report (1st Day)

12:05

Relevant documents: 28th and 38th Reports from the Delegated Powers Committee and 15th Report from the Constitution Committee. Scottish and Welsh legislative consent granted.

Amendment 1

Moved by

[Lord Parkinson of Whitley Bay]

1: Before Clause 1, insert the following new Clause—
“Introduction
(1) This Act provides for a new regulatory framework which has the general purpose of making the use of internet services regulated by this Act safer for individuals in the United Kingdom.(2) To achieve that purpose, this Act (among other things)—(a) imposes duties which, in broad terms, require providers of services regulated by this Act to identify, mitigate and manage the risks of harm (including risks which particularly affect individuals with a certain characteristic) from—(i) illegal content and activity, and(ii) content and activity that is harmful to children, and(b) confers new functions and powers on the regulator, OFCOM.(3) Duties imposed on providers by this Act seek to secure (among other things) that services regulated by this Act are—(a) safe by design, and(b) designed and operated in such a way that—(i) a higher standard of protection is provided for children than for adults,(ii) users’ rights to freedom of expression and privacy are protected, and(iii) transparency and accountability are provided in relation to those services.”Member’s explanatory statement
This amendment provides for a new introductory Clause.

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

My Lords, I am pleased that we are on Report, and I thank all noble Lords who took part in Committee and those with whom I have had the pleasure of discussing issues arising since then, particularly for their constructive and collaborative nature, which we have seen throughout the passage of Bill.

In Committee, I heard the strength of feeling and the desire for an introductory clause. It was felt that this would help make the Bill less complex to navigate and make it less easy for providers to use this complexity to try to evade their duties under it. I have listened closely to these concerns and thank the noble Lord, Lord Stevenson of Balmacara, the noble Baroness, Lady Merron, and others for their work on this proposal. I am particularly grateful for their collaborative approach to ensuring the new clause has the desired effect without causing legal uncertainty. In that spirit, I am pleased to introduce government Amendment 1. I am grateful too to the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones, who have signed their names to it. That is a very good start to our amendments here on Report.

Amendment 1 inserts an introductory clause at the start of the Bill, providing an overarching statement about the main objectives of the new regulatory framework. The proposed new clause describes the main broad objectives of the duties that the Bill imposes on providers of regulated services and that the Bill confers new functions and powers on Ofcom.

The clause makes clear that regulated services must identify, mitigate and manage risks that particularly affect people with a certain characteristic. This recognises that people with certain characteristics, or more than one such characteristic, are disproportionately affected by online harms and that providers must account for and protect them from this. The noble Baroness, Lady Merron, raised the example of Jewish women, as did the noble Baroness, Lady Anderson of Stoke-on-Trent. Sadly, they have first-hand experience of the extra levels of abuse and harm that some groups of people can face when they have more than one protected characteristic. It could just as easily be disabled women or queer people of colour. The noble Baroness, Lady Merron, has tabled several amendments highlighting this problem, which I will address further in response to the contribution I know she will make to this debate.

Subsection 3 of the proposed new clause outlines the main outcomes that the duties in the Bill seek to secure. It is a fundamental principle of the legislation that the design of services can contribute to the risk of users experiencing harm online. I thank the noble Lord, Lord Russell of Liverpool, for continuing to raise this issue. I am pleased to confirm that this amendment will state clearly that a main outcome of the legislation is that services must be safe by design. For example, providers must choose and design their functionalities so as to limit the risk of harm to users. I know this is an issue to which we will return later on Report, but I hope this provides reassurance about the Government’s intent and the effect of the Bill’s framework.

Services must also be designed and operated in a way which ensures that a higher standard of protection is provided for children than for adults, that users’ rights to freedom of expression and privacy are protected and that transparency and accountability are enhanced. It should be noted that we have worked to ensure that this clause provides clarity to those affected by the Bill without adversely affecting the interpretation or effect of the substantive provisions of the rest of the Bill. As we debated in Committee, this is of the utmost importance, to ensure that this clause does not create legal uncertainty or risk with the interpretation of the rest of the Bill’s provisions.

I hope that your Lordships will welcome this amendment and I beg to move.

Amendment 2 (to Amendment 1)

Moved by

[Baroness Merron]

2: Before Clause 1, in subsection (2)(a), after “characteristic” insert “, or a combination of characteristics”
Member’s explanatory statement
This amendment to the Minister’s introductory Clause makes it clear that some internet users experience a higher level of harm than others, as a result of having multiple characteristics.

[Baroness Merron (Lab)]

My Lords, I would like to start on a positive note by thanking the Minister for responding to the clear signals that were expressed across the House that a new introductory clause, which is before us in government Amendment 1, would enhance the Bill and set it on its way to be in the best shape that can be achieved by noble Lords working together. I am glad to acknowledge the contribution of my noble friend Lord Stevenson of Balmacara, who has worked to get this in the right place—as the Minister acknowledged. He has been supported in his endeavours by the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones. It is a great step forward, which I hope shows how we all mean to go on.

This new clause gives a real lift to what was essentially a straightforward summary of various parts of the Bill. I sense that noble Lords shared my disappointment that what was in place originally did not harness what the Bill seeks to do. To have left it unamended would have been a missed opportunity and it is in the spirit, if not the exact recommendation, of the Joint Committee, that the government amendment has come forward. So I am glad to welcome this new introductory clause that sets out the purpose, duties and powers—among other things—that will be invested in the Act. This new clause sets out what it will really mean to people and organisations and I hope that this can be a template for other Bills that come before the House.

Following through on this theme of clarity, I am glad to speak to the amendments in my name—Amendment 2, which has also been signed by the noble Lord, Lord Clement-Jones, and Amendments 54 and 173. They all have the same intent of responding to the indisputable evidence that having more than one protected characteristic greatly increases the level of harm experienced online. Amendment 2 seeks to amend the new and very welcome introductory clause further, by making that clear up front.

I am grateful to the Minister for his willingness to engage on this subject. I know that he accepts the premise of the point that I have been pressing. As he mentioned, and to give just one example, Jewish women find themselves at the intersection of both anti-Semitic and misogynistic abuse. It is as though online abusers multiply the vitriol by at least the number of protected characteristics, such that it feels that the abuse knows no bounds, manifesting in far too many examples of Jewish women in the public eye on the receiving end of death, rape and other serious threats.

In our discussions, the Minister referred me to Section 6 of the Interpretation Act 1978, which says that when interpreting statute,

“words in the singular include the plural and words in the plural include the singular”.

This was as much an education for the Minister as it was for me and, judging by the response, for other noble Lords. However, the key point is that this is not just about semantics. Those looking to the Online Safety Bill for protection will not be cross-referencing to a section of a 1978 Act.

I hope that the Minister will be forthcoming with agreement to make the necessary changes in order that we can get to the place which we all want to get to. I beg to move.

12:15

[Baroness Kidron (CB)]

My Lords, I will speak to Amendment 1, to which I was happy to add my name alongside that of the Minister. I too thank the noble Lord, Lord Stevenson, for tabling the original amendment, and my noble and learned friend Lord Neuberger for providing his very helpful opinion on the matter.

I am especially pleased to see that ensuring that services are safe by design and offer a higher standard of protection for children is foundational to the Bill. I want to say a little word about the specificity, as I support the noble Baroness, Lady Merron, in trying to get to the core issue here. Those of your Lordships who travel to Westminster by Tube may have seen TikTok posters saying that

“we’re committed to the safety of teens on TikTok. That’s why we provide an age appropriate experience for teens under 16. Accounts are set to private by default, and their videos don’t appear in public feeds or search results. Direct messaging is also disabled”.

It might appear to the casual reader that TikTok has suddenly decided unilaterally to be more responsible, but each of those things is a direct response to the age-appropriate design code passed in this House in 2018. So regulation does work and, on this first day on Report, I want to say that I am very grateful to the Government for the amendments that they have tabled, and “Please do continue to listen to these very detailed matters”.

With that, I welcome the amendment. Can the Minister confirm that having safety by design in this clause means that all subsequent provisions must be interpreted through that lens and will inform all the decisions of Report and those of Ofcom, and the Secretary of State’s approach to setting and enforcing standards?

[Baroness Harding of Winscombe (Con)]

My Lords, I too thank my noble friend the Minister for tabling Amendment 1, to which I add my support.

Very briefly, I want to highlight one word in it, to add to what the noble Baroness, Lady Kidron, has just said. The word is “activity”. It is extremely important that in Clause 1 we are setting out that the purpose is to

“require providers of services regulated by this Act to identify, mitigate and manage”

not just illegal or harmful content but “activity”.

I very much hope that, as we go through the few days on Report, we will come back to this and make sure that in the detailed amendments that have been tabled we genuinely live up to the objective set out in this new clause.

[The Lord Bishop of Manchester]

My Lords, I too support the Minister’s Amendment 1. I remember vividly, at the end of Second Reading, the commitments that we heard from both Front-Benchers to work together on this Bill to produce something that was collaborative, not contested. I and my friends on these Benches have been very touched by how that has worked out in practice and grateful for the way in which we have collaborated across the whole House. My plea is that we can use this way of working on other Bills in the future. This has been exemplary and I am very grateful that we have reached this point.

[Lord Moylan (Con)]

My Lords, I am grateful to my noble friend the Minister for the meeting that he arranged with me and the noble Baroness, Lady Fox of Buckley, on Monday of this week.

Although we are on Report, I will start with just one preliminary remark of a general character. The more closely one looks at this Bill, the clearer it is that it is the instrument of greatest censorship that we have introduced since the liberalisation of the 1960s. This is the measure with the greatest capacity for reintroducing censorship. It is also the greatest assault on privacy. These principles will inform a number of amendments that will be brought forward on Report.

Turning now to the new clause—I have no particular objection to there being an introductory clause—it is notable that it has been agreed by the Front Benches and by the noble Baroness, Lady Kidron, but that it has not been discussed with those noble Lords who have spoken consistently and attended regularly in Committee to speak up in the interests of free speech and privacy. I simply note that as a fact. There has been no discussion about it with those who have made those arguments.

Now, it is true that the new clause does refer to both free speech and privacy, but it sounds to me very much as though these are written almost as add-ons and afterthoughts. We will be testing, as Report stage continues, through a number of amendments, whether that is in fact the case or whether that commitment to free speech and privacy is actually being articulated and vindicated in the Bill.

[Lord Clement-Jones (LD)]

My Lords, needless to say, I disagree with what the noble Lord, Lord Moylan, has just been saying precisely because I believe that the new clause that the Minister has put forward, which I have signed and has support across the House, expresses the purpose of the Bill in the way that the original Joint Committee wanted. I pay tribute to the Minister, who I know has worked extremely hard, in co-operation with the noble Lord, Lord Stevenson of Balmacara, to whom I also pay tribute for getting to grips with a purpose clause. The noble Baronesses, Lady Kidron and Lady Harding, have put their finger on it: this is more about activity and design than it is about content, and that is the reason I fundamentally disagree with the noble Lord, Lord Moylan. I do not believe that will be the impact of the Bill; I believe that this is about systemic issues to do with social media, which we are tackling.

I say this slightly tongue-in-cheek, but if the Minister had followed the collective wisdom of the Joint Committee originally, perhaps we would not have worked at such breakneck speed to get everything done for Report stage. I believe that the Bill team and the Minister have worked extremely hard in a very few days to get to where we are on many amendments that we will be talking about in the coming days.

I also want to show my support for the noble Baroness, Lady Merron. I do not believe it is just a matter of the Interpretation Act; I believe this is a fundamental issue and I thank her for raising it, because it was not something that was immediately obvious. The fact is that a combination of characteristics is a particular risk in itself; it is not just about having several different characteristics. I hope the Minister reflects on this and can give a positive response. That will set us off on a very good course for the first day of Report.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this has indeed set us on a good course, and I am grateful to noble Lords for their questions and contributions. I apologise to my noble friend Lord Moylan, with whom I had the opportunity to discuss a number of issues relating to freedom of expression on Monday. We had tabled this amendment, and I apologise if I had not flagged it and sought his views on it explicitly, though I was grateful to him and the noble Baroness, Lady Fox of Buckley, for their time in discussing the issues of freedom of expression more broadly.

I am grateful to my noble friend Lady Harding and to the noble Baroness, Lady Kidron, for their tireless work over many months on this Bill and for highlighting the importance of “content” and “activity”. Both terms have been in the Bill since its introduction, for instance in Clauses 5(2) and (3), but my noble friend Lady Harding is right to highlight it in the way that she did. The noble Baroness, Lady Kidron, asked about the provisions on safety by design. The statement in the new clause reflects the requirements throughout the Bill to address content and activity and ensure that services are safe by design.

On the amendments tabled by the noble Baroness, Lady Merron, which draw further attention to people who have multiple characteristics and suffer disproportionately because of it, let me start by saying again that the Government recognise that this is, sadly, the experience for many people online, and that people with multiple characteristics are often at increased risk of harm. The Bill already accounts for this, and the current drafting captures people with multiple characteristics because of Section 6 of the Interpretation Act 1978. As she says, this was a new one to me—other noble Lords may be more familiar with this legacy of the Callaghan Government—but it does mean that, when interpreting statute, words in the singular include the plural and words in the plural include the singular.

If we simply amended the references that the noble Baroness highlights in her amendments, we would risk some uncertainty about what those provisions cover. I sympathise with the concern which lies behind her amendments, and I am grateful for her time in discussing this matter in detail. I agree that it would be helpful to make it clearer that the Bill is designed to protect people with multiple characteristics. This clause is being inserted to give clarity, so we should seek to do that throughout.

We have therefore agreed to add a provision in Clause 211—the Bill’s interpretation clause—to make clear that all the various references throughout the Bill to people with a certain characteristic include people with a combination of characteristics. This amendment was tabled yesterday and will be moved at a later day on Report, so your Lordships’ House will have an opportunity to look at and vote on that. I hope that that provision clarifies the intention of the wording used in the Bill and puts the issue beyond doubt. I hope that the noble Baroness will be satisfied, and I am grateful to all noble Lords for their support on this first amendment.

[Baroness Merron (Lab)]

My Lords, I am grateful to the Minister for his response. It is a very practical response and certainly one that I accept as a way forward. I am sure that the whole House is glad to hear of his acknowledgement of the true impact that having more than one protected characteristic can have, and of his commitment to wanting the Bill to do the job it is there to do. With that, I am pleased to withdraw the amendment in my name.

Amendment 2 (to Amendment 1) withdrawn.

Amendment 1 agreed.

Clause 162: False communications offence

Amendment 2A

Moved by

[Lord Garnier]

2A: Clause 162, page 141, line 32, after “psychological” insert “, financial”
Member’s explanatory statement
This amendment, along with the other amendment to Clause 162 in the name of Baroness Buscombe, would widen the scope of the offence to include financial harm and harm to the subject of the false message arising from its communication to third parties.

[Lord Garnier (Con)]

My Lords, I shall speak briefly to Amendments 2A, 2B and 5A, which are in my name but perhaps more importantly in the names of my noble friends Lady Buscombe and Lord Leicester. I want to make it quite clear that this is not a contentious debate, in the sense that I had a very useful meeting with my noble friend the Minister on Monday 3 July, in which we set out to each other our respective concerns about the content of the Bill and how it does not protect the people that my noble friends and I seek to protect. My noble friend the Minister explained the practical difficulties faced in trying to introduce these provisions into this Bill. I think we probably agreed to differ. I hope I do not misinterpret what he told me the other day, but, essentially, I think the Government’s view is that an amendment along the lines that we propose might sit more suitably within the digital markets Bill. I am not entirely sure about that, but I am not going to have a fight about it this afternoon.

I will make some short points. Having listened to the debate on the Government’s Amendment 1, I suggest that our proposal that “financial” should be included in the types of damage referred to in Clause 162(1)(c)—that a person commits an offence if

“at the time of sending it, the person intended the message, or the information in it, to cause non-trivial psychological”,

we would then add in “financial”,

“or physical harm to a likely audience”—

fits in very well with Amendment 1 and the point raised by my noble friend Lady Harding on proposed new subsection (2), which says:

“To achieve that purpose, this Act (among other things) … imposes duties which, in broad terms, require providers of services … to … mitigate and manage the risks of harm … from … illegal content and activity”.

12:30

At our meeting the other day and in Committee, we talked about making it a criminal act to post damaging material about, for example, a business, such as one that sells meat, which becomes the victim of a vegan pile-on. It could be a local bed and breakfast, an Airbnb, a restaurant or pub that is owned by people who, for example, enjoy sports that others disapprove of—to take an easy and obvious example, hunting. In so far as hunting is still a permitted and legal activity, there are none the less people who vehemently disapprove of it, and they take their disapproval to the extent that they pile on abusive, damaging and false accusations on the internet, to the financial damage, quite apart from the mental upset, of those who run those businesses. We are talking not about large corporations but about individuals who own pubs, restaurants, small shops or whatever it might be, whose livelihoods and psychological well-being could well be affected by this.

We think it would be a good idea not only if this sort of activity were criminalised but if the providers and operators of the websites and so on took on the moral responsibility for what those who use their sites are doing. That duty, which I would say goes beyond morality—it is a social, moral and legal duty—translates across to the Government. It is the duty of the Government to protect small business people running perfectly legitimate businesses from this sort of mob activity—in the jargon, pile-ons. I therefore urge the Government, although I accept their concerns about the difficulty of using this particular Bill, to think imaginatively and positively about how they can protect the victims and potential victims of the activity I refer to.

Nothing that we propose would affect the legitimate rights to freedom of expression or privacy set out in Amendment 1. The law as it stands—I refer to the Defamation Act 2013, Article 10 of the European Convention on Human Rights and the common law—allows for restriction of people’s “right” to tell damaging lies. We do not need to get too prissy about protecting the rights of liars who wish to go around damaging other people’s businesses.

That, in essence, is the long and the short of it. I look forward to the Government coming forward in short order with some positive proposals about what they want to do, and how they propose to do it, to protect this group of people who have had their lives and their businesses damaged and who will continue to be at risk until Parliament does something about it. I beg to move.

[Lord Allan of Hallam (LD)]

My Lords, I will speak to Amendment 5B in my name and that of my noble friend Lord Clement-Jones. I am reminded that this is a new stage of the Bill, so I should declare my interests. I have no current financial interests in the tech sector, but until 2019 I worked for one of the large technology companies that will be regulated, doing the kind of censorship job that the noble Lord, Lord Moylan, is concerned about. We clearly did not do it very well or we would not be here today replacing people like me with Ofcom.

Amendment 5B concerns an issue that we raised in Committee: the offence of encouragement of self-harm. That new offence was broadly welcomed, including on these Benches. We believe that there is scope, in some circumstances, to seek criminal prosecution of individuals who, online or otherwise, maliciously seek to encourage other people to harm themselves. The concern we raised in Committee, which we come back to today, is that we want the offence to be used in a way that we would all agree is sensible. We do not want people who are trying to help individuals at risk of self-harm to become concerned about and afraid of it, and to feel that they need to limit activities that would otherwise be positive and helpful.

In Committee we suggested that one way to do this would be to have a filter where the Director of Public Prosecutions looked at potential prosecutions under the new offence. We take a different approach with the amendment, which would in some senses be more effective, which is to explicitly list in the Bill the three categories of activity that would not render an individual liable to prosecution.

The first is people who provide an educational resource. We should be clear that some educational resources that are intended to help people recognise self-harm and turn away from it can contain quite explicit material. Those people are concerned that they might, in publishing that material with good intent, accidentally fall foul of the offence.

The second category is those who provide support—individuals providing peer support networks, such as an online forum where people discuss their experience of self-harm and seek to turn away from it. They should not be inadvertently caught up in the offence.

The third category is people posting information about their own experience of self-harm. Again, that could be people sharing quite graphic material about what they have been doing to themselves. I hope that there would be general agreement that we would not interpret, for example, a distressed teenager sharing material about their own self-harm, with the intent of seeking advice and support from others, as in some way encouraging or assisting others to commit self-harm themselves.

There is a genuine effort here to try to find a way through so that we can provide assurances to others. If the Minister cannot accept the amendment as it is, I hope he will reaffirm that the categories of people that I described are not the target of the offence and that he will be able to offer some kind of assurance as to how they can feel confident that they would not fall foul of prosecution.

Additionally, some of these groups feel with some conviction that their voices have not been as prominent in the debate as those of other organisations. The work they do is quite sensitive, and they are often quite small organisations. Between Report and the Bill becoming law, I hope that those who will be responsible for doing the detailed work around guidance on prosecutions will meet with those people on the front line—again, specificity is all—and that those who are trying to work out how to make this legislation work will meet with the people doing that work, running those fora and engaging with the young people who seek help around self-harm to look in detail at what they are doing. That would be extraordinarily helpful.

Those are my two asks. Ideally, the Government would accept the amendment that we have tabled, but if not I hope that they can give the assurance that the three groups I listed are not the target and that they will commit to having relevant officials meet with individuals working on the front line, so that we can make sure that we do not end up prosecuting individuals without intending to.

[Baroness Burt of Solihull (LD)]

My Lords, I support all the amendments in this group. However, what I have to say on my own amendments will take up enough time without straying on to the territory of others. I ask noble colleagues to please accept my support as read. I thank the Minister for meeting me and giving context and explanation regarding all the amendments standing in my name. I also welcome the government amendments on intimate image abuse in another group and on digitally altered images, which impinge directly on the cyberflashing amendments.

It is clear that the Government’s heart is in the right place, even if their acceptance of a consent-based law is not. I also thank the Law Commission for meeting me and explaining the thinking behind and practicalities of how the new law in relation to cyberflashing will work, and how the existing court system can help, such as juries deciding whether or not they believe the defendant. Last but definitely not least, I acknowledge the help that I have received from Professor Clare McGlynn, and Morgane Taylor from Bumble—both immensely knowledgeable and practical people who have inspired, informed and helped throughout.

I start with Amendments 5C and 7A in my name and that of the noble Baroness, Lady Finlay. I understand that the Government are following the advice of the Law Commission in refusing to accept consent-based defence, but I point out gently that this is something that the Government choose, and sometimes choose not, to do. Although the Law Commission consulted widely, that consultation did not show support for its proposals from victims and victims’ organisations. I am still of the view that a consent-based requirement would have prevented many unsolicited images being received by women and girls. I still worry that young girls may be socialised and sexualised by their peers who say that they are sending these images for a laugh. These girls do not have the maturity to say that they do not find it funny, but pretend it is okay while cringing with humiliation inside. Consent-based legislation would afford them the best protection and educate young girls and men that not only are women and girls frequently not interested in seeing a picture of a man’s willy, but girls think differently from boys about this. Who knew?

I also believe that a consent-based law would provide the most suitable foundation for education and prevention initiatives. However, I have listened to the Minister and the Law Commission. I have been told that, if it got to court, the complainant would not be humiliated all over again by having to give evidence in court and admit the distress and humiliation they felt. But according to the Minister, like the new intimate image amendment tabled by the Government themselves, it is up to the Crown Prosecution Service to follow it up and, after making their statement of complaint, my understanding is that the complainant does not have to take part further—more of that later. However, given the current success rate of only 4% of even charging alleged perpetrators in intimate image abuse cases, I worry that not only will victims continue to be reluctant to come forward but the chances of prosecution will be so slim that it will not act as a deterrent. We know from experience of sharing sexual images without consent, that the motivation thresholds have limited police investigations and prosecutions due to the evidential challenges. That is what the Law Commission has recommended as regards the introduction of a consent-based image offence.

12:45

The only thing that would give me hope is a major education or re-education campaign in schools and society. Will the Minister confirm that such an education and publicity campaign will happen? Will there be a budget allocated to carry it out? I should like it on the record that the Government will produce the campaign within six months of the passing of the Act. Similarly, the Minister has assured me that he will monitor carefully the success of the implemented Act. Please will he make those assurances in his reply to this group and give some kind of timescale?

I come to the recklessness amendment, Amendment 6, which is new. It was originally drafted by Professor McGlynn and Maria Miller at the Commons stage to give a kind of compromise on a recklessness standard, but it has not yet been considered by either House. The specific wording follows recent laws on upskirting and down-blousing in Northern Ireland in the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022. The wording has been tested, reviewed and approved by the justice ministry and the Northern Ireland Assembly. In the Bill, there are two ways in which to prove the cyberflashing offence; first, if it is proved that the defendant either intended to cause distress; or, secondly, if the defendant was motivated by sexual gratification and was reckless in causing distress. My amendment adds a third option. The defence will be made out if the defendant was

“reckless as to whether B will be caused alarm, distress or humiliation”

and that the victim was so harmed. This third option will cover a wider range of cases, meaning that there would be more opportunities for prosecuting this harmful practice and therefore affording greater protection for women and girls.

Recklessness means showing that a defendant was aware of a risk of causing harm but went on to take that risk anyway. There are two arms to the recklessness amendment. First, a defendant is reckless as to causing distress, alarm or humiliation and, secondly, the victim is alarmed, humiliated, et cetera. The first arm, the recklessness, is easier to prove than direct intention. The perpetrator can intend to have a laugh with his friends or send an image for a dare but is reckless as to causing distress. That means that he recognised there was a risk of causing distress but carried on anyway. In many situations, recklessness may be relatively easy to prove, as you would say that, of course, most people would know that sending images of this kind would be likely to cause distress and so on, unless you knew that the recipient would be receptive to it because you checked before sending. I am not going to talk any more about consent-based matters. I am done there. I have made my point. What many men do not get, though, is that girls—particularly girls—and women do not want to receive these images. This is why I have been arguing for a you-know-what consent-based law. The second arm states that the victim is alarmed, humiliated, et cetera. This means that the victim would need to make a statement to that effect. It is included here and in the Northern Ireland draft to raise that threshold just a little. It should not be too high a threshold to meet.

The recklessness amendment is a good compromise, especially when faith in the criminal justice system is at an all-time low among women. Otherwise, women will report cyberflashing and find that they fail at the first hurdle because of the need to prove that the person who sent the image intended to cause direct harm.

In my meeting with the Minister, he gave an example of why a consent-based offence would not work. He used an image of a complainant having to give evidence in a court. That went a long way to swinging it for me but I have taken advice on this and, as I now understand it, the complainant would need only to give a statement, which would of course be crucial to any prosecution. This means that the prosecution would not go ahead unless the complainant supported it, which is fair enough; I had visions of a victim trembling in the dock when facing her abuser. I would be most grateful if the Minister could clarify this because, as I understand it, the court issue made the difference between having a consent-based offence and the Government’s proposal. It has been known on rare occasion for me to get muddled up but I would appreciate clarification on which version is correct.

I appreciate that the Minister and the Law Commission have not had time to consider this recklessness amendment fully so I certainly do not intend to press it to a vote today. The best outcome would be the Government and the Law Commission looking at this and the Government bringing forward their own amendment before Third Reading. I am ever hopeful and thank noble Lords for their patience.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, Amendments 3 to 5 to Clause 164 are in my name. They relate to a matter that I raised in Committee: threats of a more indirect nature. As I explained at that time, I chaired an inquiry in Scotland into misogyny and the manifestations of deeply unpleasant behaviour that women experience, some of it in the public arena and some of it online.

Based on that experience, I came to realise that many women who are parliamentarians, are in local authorities, head up NGOs or are journalists and, for some reason, annoy or irritate certain users of social media in any way receive horrible threats. We know about those from the ugly nature of the threats that Diane Abbott and many women parliamentarians have received. Sometimes, the person making the threat does not directly say, “I’m going to rape you”—although sometimes they do: Joanna Cherry, a Scottish Member of Parliament here in Westminster, received a direct threat of rape and the person who threatened was convicted under the Communications Act. Very often, threats of rape, death or disfigurement sound like, “You think you’re so pretty. We can fix that. Somebody should fix that”. It is the indirect nature of the threat that provides comfort to the person making it. They imagine that they cannot be prosecuted because they are not saying that they will do it; they are saying, “Somebody should rape you. Somebody should just eliminate you. Somebody should take that smile off your face; a bit of acid could do it”. That is how many of the threats presented by witnesses to the inquiry—we saw them on their phones and computers—were made; they were of an indirect nature.

One woman in my own chambers is acting for Jimmy Lai, the Hong Kong publisher who is currently in custody awaiting trial under the national security law. She has received death threats, threats against her children and threats of rape. I do not imagine that we can inhibit what is done by people under the auspices of the Chinese Government with this legislation; all I can say is that these sorts of threats are experienced by many women and are not always of a direct nature so the law often does not encapsulate them. I am seeking to introduce some way in which we could, through careful drafting, cover the possibilities.

Take someone such as Andrew Tate: he is a good example of someone with a massive following who clearly puts out to boys and young men horrible ideas about how women should be treated, much of which involve detriments to women. As has been described by others in this House, a pile-on happens in relation to this. Women do not just receive a message saying, “Somebody should rape you”; they receive thousands of messages from the followers of the contributor and communicator.

I have had the benefit of meeting the ministerial team. I am grateful to the Minister and his team, including the lawyers who advise him. We sought a way of dealing with this issue. I particularly wanted to include specific mention of “rape, disfigurement or other” in terms of threats because, in the language of statutes, they are sometimes missed by young junior prosecutors or young policemen. When they see messaging and women come forward with complaints, they do not automatically think that the threat is covered because of the rather oblique nature of statutory language. I wanted it really spelled out, with rape and disfigurement specifically included in my amendment. However, I am persuaded that this issue was in the minds of those who drafted this Bill.

I am pleased that it has been recognised that this specific issue is of a different nature when it is applied to women and girls. It is happening in schools and universities. Young women put their heads above the parapet—they express a view about feminism or describe the fact that they are a lesbian—then, suddenly, they receive a whole range of horrible insults, abuse and threats on social media. I am mindful of the contribution made by the noble Baroness, Lady Fox, in Committee. She was concerned, in essence, about people being rather wet about this and how this measure would inhibit free speech; really, it was about protecting rather gentle feelings. However, that is not what this is about. It is about threats of serious behaviour and serious conduct towards women. The indirect nature of it is not something that should put us off attempting to have law to deal with it.

As I said, I have had an opportunity to meet the ministerial team. We came to the conclusion that we might be able to insert something covering the fact that the carrying out of the threat could be done by persons other than the person who is sending the message. That is the important thing: women receiving these messages saying, “Somebody should rape you”, know that the message is carefully drafted in that way by the Andrew Tates of this world because they imagine that the police cannot then do anything about it, but they also know that these people have followers who may well decide to carry out the suggestion. It is really important that we find a way to deal with this.

As a result of our discussions, I hope that the House will see that this issue is something that we must deal with in this Bill because the opportunity will not come again. This is happening day in, day out to girls and women. If we are going to send a message about what is unacceptable, it is important that the law declares what is unacceptable. These threats are serious, as is the way in which women then have to change their lives. They stop staying out late. They worry about being in places where they might be subjected to some of these threats. They start limiting their behaviour.

Just earlier this morning, someone told me that his niece was a member of a football team’s fan club and had been elected to the board. She suddenly received a whole range of threats from men who felt that no woman should be in that position. She received a pile-on of a horrible kind, and said to her uncle that she wanted to step down and did not want to be on the board if she was going to receive that kind of messaging.

13:00

Women start changing the opportunities in their lives and stop doing things that they might want to do: they stop deciding to be Members of Parliament or to stand for election in any capacity, or, if they are lawyers, to take cases that will be inflammatory. They start inhibiting and limiting their own potential because of this kind of threat coming from men who resent the idea that women should be aspiring to hold positions and be equal to men. Some of it is of a very unpleasant and nasty nature, and law has its place in sending out clear messages of what is acceptable and unacceptable. It is then up to us—in schools, other educational settings and everywhere else—to spread the word among our young men and young women about what is acceptable and what they must not accept, and about the right way to behave decently towards other human beings.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, first, I welcome the amendment from the noble Lord, Lord Allan, and his motivation, because I am concerned that, throughout the Bill, the wrong targets are being caught up. I was grateful to hear his recognition that people who talk about their problems with self-harm could end up being targeted, which nobody would ever intend. These things need to be taken seriously.

In that sense, I was slightly concerned about the motivation of the noble Baroness, Lady Burt of Solihull, in the “reckless” amendment. The argument was that the recklessness standard is easier to prove. I am always worried about things that make it easier to prosecute someone, rather than there being a just reason for that prosecution. As we know, those involved in sending these images are often immature and very foolish young men. I am concerned about lowering the threshold at which we criminalise them—potentially destroying their lives, by the way, because if you have a criminal record it is not good—even though I in no way tolerate what they are doing and it is obviously important that we take that on.

There is a danger that this law will become a mechanism through which people try to resolve a whole range of social problems—which brings me on to responding to the speech just made by the noble Baroness, Lady Kennedy of The Shaws. I continue to be concerned about the question of trying to criminalise indirect threats. The point about somebody who sends a direct threat is that we can at least see the connection between that direct threat and the possibility of action. It is the same sort of thing that we have historically considered in relation to incitement. I understand that, where your physical being is threatened by words, physically a practical thing can happen, and that is to be taken very seriously. The problem I have is with the indirect threat from somebody who says, for example, “That smile should be taken of your face. It can be arranged”, or other indirect but incredibly unpleasant comments. There is clearly no link between that and a specific action. It might use violent language but it is indirect: “It could be arranged”, or “I wish it would happen”.

Anyone on social media—I am sure your Lordships all are—will know that I follow very carefully what people from different political parties say about each other. I do not know if you have ever followed the kind of things that are said about the Government and their Ministers, but the threats are not indirect and are often named. In that instance, it is nothing to do with women, but it is pretty violent and vile. By the way, I have also followed what is said about the Opposition Benches, and that can be pretty violent and vile, including language that implies that they wish those people were the subject of quite intense violence—without going into detail. That happens, and I do not approve of it—obviously. I also do not think that pile-ons are pleasant to be on the receiving end of, and I understand how they happen. However, if we criminalise pile-ons on social media, we are openly imposing censorship.

What is worse in my mind is that we are allowing the conflation of words and actions, where what people say or think is the same as acting on it, as the criminal law would see it. We have seen a very dangerous trend recently, which is particularly popular in the endless arguments and disputes over identity politics, where people will say that speech is violence. This has happened to a number of gender-critical feminists, in this instance women, who have gone in good faith to speak at universities, having been invited. They have been told that their speech was indistinguishable from violence and that it made students at the university feel under threat and unsafe and that it was the equivalent of being attacked. But guess what? Once you remove that distinction, the response to that speech can be to use violence, because you cannot tell the difference between them. That has happened around a number of university actions, where speakers and their supporters were physically assaulted by people who said that they were using self-defence against speech that was violent. I get nervous that this is a slippery slope, and we certainly should not go anywhere near it in legislation.

Finally, I agree that we should tackle the culture of people piling on and using this kind of language, but it is a cultural and social question. What we require is moral leadership and courage in the face of it—calling it out, arguing against it and so on. It is wrong to use the law to send messages; it is an abdication of moral leadership and a cop-out, let alone dangerous in what is criminalised. I urge your Lordships to reject those amendments.

[Baroness Morgan of Cotes (Con)]

My Lords, I will speak briefly to Amendments 5C and 7A in this group. I welcome the Government’s moves to criminalise cyberflashing. It is something that many have campaigned for in both Houses and outside for many years. I will not repeat the issues so nobly introduced by the noble Baroness, Lady Burt, and I say yet again that I suspect that the noble Baroness, Lady Featherstone, is watching, frustrated that she is still not able to take part in these proceedings.

It is worth making the point that, if actions are deemed to be serious enough to require criminalisation and for people potentially to be prosecuted for them, I very much hope that my noble friend the Minister will be able to say in his remarks that this whole area of the law will be kept under review. There is no doubt that women and girls’ faith in the criminal justice system, both law enforcement and the Crown Prosecution Service, is already very low. If we trumpet the fact that this offence has been introduced, and then there are no prosecutions because the hurdles have not been reached, that is even worse than not introducing the offence in the first place. So I hope very much that this will be kept under review, and no doubt there will be opportunities to return to it in the future.

I do not want to get into the broader debate that we have just heard, because we could be here for a very long time, but I would just say to the noble Baronesses, Lady Kennedy and Lady Fox, that we will debate this in future days on Report and there will be specific protection and mention of women and girls on the face of the Bill—assuming, of course, that Amendment 152 is approved by this House. The guidance might not use the words that have been talked about, but the point is that that is the place to have the debate—led by the regulator with appropriate public consultation—about the gendered nature of abuse that the noble Baroness, Lady Kennedy, has so eloquently set out. I hope that will also be a big step forward in these matters.

I look forward to hearing from the Minister about how this area of law will be kept under review.

[Baroness Kidron (CB)]

My Lords, I understand that, as this is a new stage of the Bill, I have to declare my interests: I am the chair of 5Rights Foundation, a charity that works around technology and children; I am a fellow at the computer science department at Oxford University; I run the Digital Futures Commission, in conjunction with the 5Rights Foundation and the London School of Economics; I am a commissioner on the Broadband Commission; I am an adviser for the AI ethics institute; and I am involved in Born in Bradford and the Lancet commission, and I work with a broad number of civil society organisations.

[Noble Lords]

Hear, hear!

[Baroness Kidron (CB)]

My comments will be rather shorter. I want to make a detailed comment about Amendment 5B, which I strongly support and which is in the name of the noble Lord, Lord Allan. It refers to,

“a genuine medical, scientific or educational purpose, … the purposes of peer support”

I would urge him to put “genuine peer support”. That is very important because there is a lot of dog whistling that goes on in this area. So if the noble Lord—

[Lord Allan of Hallam (LD)]

My working assumption would be that that would be contestable. If somebody claimed the peer support defence and it was not genuine, that would lead to them becoming liable. So I entirely agree with the noble Baroness. It is a very helpful suggestion.

[Baroness Kidron (CB)]

I also want to support the noble Baroness, Lady Kennedy. The level of abuse to women online and the gendered nature of it has been minimised; the perpetrators have clearly felt immune to the consequences of law enforcement. What worries me a little in this discussion is the idea or conflation that anything said to a woman is an act of violence. I believe that the noble Baroness was being very specific about the sorts of language that could be caught under her suggestions. I understand from what she said that she has been having conversations with the Minister. I very much hope that something is done in this area, and that it is explored more fully, as the noble Baroness, Lady Morgan, said, in the guidance. However, I just want to make the point that online abuse is also gamified: people make arrangements to abuse people in groups in particular ways that are not direct. If they threaten violence, that is quite different to a pile-in saying that you are a marvellous human being.

[Lord Clement-Jones (LD)]

My Lords, I too must declare my interests on the register—I think that is the quickest way of doing it to save time. We still have time, and I very much hope that the Minister will listen to this debate and consider it. Although we are considering clauses that, by and large, come at the end of the Bill, there is still time procedurally—if the Minister so decides—to come forward with an amendment later on Report or at Third Reading.

We have heard some very convincing arguments today. My noble friend explained that the Minister did not like the DPP solution. I have looked back again at the Law Commission report, and I cannot for the life of me see the distinction between what was proposed for the offence in its report and what is proposed by the Government. There is a cigarette paper, if we are still allowed to use that analogy, between them, but the DPP is recommended—perhaps not on a personal basis, although I do not know quite what distinction is made there by the Law Commission, but certainly the Minister clearly did not like that. My noble friend has come back with some specifics, and I very much hope that the Minister will put on the record that, in those circumstances, there would not be a prosecution. As we heard in Committee, 130 different organisations had strong concerns, and I hope that the Minister will respond to those concerns.

As regards my other noble friend’s amendment, again creatively she has come back with a proposal for including reckless behaviour. The big problem here is that many people believe that, unless you include “reckless” or “consent”, the “for a laugh” defence operates. As the Minister knows, quite expert advice has been had on this subject. I hope the Minister continues his discussions. I very much support my noble friend in this respect. I hope he will respond to her in respect of timing and monitoring—the noble Baroness, Lady Morgan, mentioned the need for the issue to be kept under review—even if at the end of the day he does not respond positively with an amendment.

Everybody believes that we need a change of culture—even the noble Baroness, Lady Fox, clearly recognises that—but the big difference is whether or not we believe that these particular amendments should be made. We very much welcome what the Law Commission proposed and what the Government have put into effect, but the question at the end of day is whether we truly are making illegal online what is illegal offline. That has always been the Government’s test. We must be mindful of that in trying to equate online behaviour with offline behaviour. I do not believe that we are there yet, however much moral leadership we are exhorted to display. I very much take the point of the noble Baroness, Lady Morgan, about the violence against women and girls amendment that the Government are coming forward with. I hope that will have a cultural change impact as well.

As regards the amendments of the noble Baroness, Lady Kennedy, I very much take the point she made, both at Committee and on Report. She was very specific, as the noble Baroness, Lady Kidron, said, and was very clear about the impact, which as men we severely underestimate if we do not listen to what she said. I was slightly surprised that the noble Baroness, Lady Fox, really underestimates the impact of that kind of abuse—particularly that kind of indirect abuse.

I was interested in what the Minister had to say in Committee:

“In relation to the noble Baroness’s Amendment 268, the intentional encouragement or assistance of a criminal offence is already captured under Sections 44 to 46 of the Serious Crime Act 2007”.—[Official Report, 22/6/23; col. 424.]


Is that still the Government's position? Has that been explained to the noble Baroness, Lady Kennedy, who I would have thought was pretty expert in the 2007 Act? If she does not agree with the Minister, that is a matter of some concern.

Finally, I agree that we need to consider the points raised at the outset by the noble and learned Lord, Lord Garnier, and I very much hope that the Government will keep that under review.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been an interesting debate that in a curious way moves us from the debate on the first group, which was about the high level of aspiration for this Bill, for the work of those involved in it and indeed for Parliament as a whole, down to some of the nitty-gritty points that emerge from some of the Bill’s proposals. I am very much looking forward to the Minister’s response.

In a sense, where the noble Lord, Lord Clement-Jones, ends, I want to start. The noble and learned Lord, Lord Garnier, did a good job of introducing the points made previously by his colleague, the noble Baroness, Lady Buscombe, in relation to those unfortunate exercises of public comment on businesses, and indeed individuals, that have no reason to receive them. There does not seem to be a satisfactory sanction for that. In a sense he was drawn by the overarching nature of Clause 1, but I think we have established between us that Clause 1 does not have legal effect in the way that he would like, so we would probably need to move further forward. The Government probably need to pick up his points in relation to some of the issues that are raised further down, because they are in fact not dissimilar and could be dealt with.

The key issue is the one that my noble friend Lady Kennedy ended on, in the sense that the law online and the law offline, as mentioned by the noble Lord, Lord Clement-Jones, seem to be at variance about what you can and cannot do in relation to threats issued, whether or not they are general, to a group or groups in society. This is a complex area that needs further thought of the nature that has been suggested, and may well refer back to the points made by the noble Baroness, Lady Morgan. There is something here that we are not tackling correctly. I look forward to the Government’s response. We would support movement in that area should that agreement be made.

Unfortunately, the noble Lord, Lord Russell, whom I am tempted to call my noble friend because he is a friend, has just moved out of his seat—I do not need to give him a namecheck any more—but he and I went to a meeting yesterday, I think, although I have lost track of time. It was called by Luke Pollard MP and related to the incel movement or, as the meeting concluded, what we should call the alleged incel movement, because by giving it a name we somehow give it a position. I wanted to make that point because a lot of what we are talking about here is in the same territory. It was an informal research-focused meeting to hear all the latest research being done on the group of activities going under the name of the alleged incel movement.

I mention that because it plays into a lot of the discussion here. The way in which those who organise it do so—the name Andrew Tate has already been mentioned—was drawn into the debate in a much broader context by that research, particularly because representatives from the Home Office made the interesting point that the process by which the young men who are involved in this type of activity are groomed to join groups and are told that by doing so they are establishing a position that has been denied to them by society in general, and allegedly by women in particular, is very similar to the methods used by those who are cultivating terrorism activity. That may seem to be a big stretch but it was convincing, and the argument and debate around that certainly said to me that there are things operating within the world of social media, with its ability to reach out to those who often feel alone, even if they are not, and who feel ignored, and to reach them in a way that causes them to overreact in the way they deal with the issues they face.

That point was picked up by others, including my noble friend Lady Kennedy and the noble Baroness, Lady Burt, in relation to the way in which the internet itself is in some way gendered against women. I do not in any sense want to apportion blame anywhere for that; it is a much more complex issue than single words can possibly address, but it needs to be addressed. As was said in the meeting and has been said today, there are cultural, educational and holistic aspects here. We really do not tackle the symptoms or the effects of it, but we should also look at what causes people to act in the way they have because of, or through the agency of, the internet.

Having said that, I support the amendments from the noble Lord, Lord Allan, and I look forward to the Government’s response to them. Amendment 5B raises the issue that it will be detrimental to society if people stop posting and commenting on things because they fear that they will be prosecuted—or not even prosecuted but attacked. The messages that they want to share will be lost as a result, and that is a danger that we do not want to encourage. It will be interesting to hear the Minister’s response to that.

The noble Baroness, Lady Burt, made powerful points about the way in which the offence of cyberflashing is going to be dealt with, and the differences between that and the intimate image abuse that we are coming on to in the next group. It may well be that this is the right way forward, and indeed we support the Government in the way that they are going, but it is important to recognise her point that we need a test of whether it is working. The Government may well review the impact of the Bill in the normal way of things, but this aspect needs particular attention; we need to know whether there are prosecutions and convictions and whether people understand the implication of the change in practice. We need publicity, as has been said, otherwise it will not be effective in any case. These issues, mentioned by the noble Baroness, Lady Burt, and picked up by the noble Baroness, Lady Morgan, are important. We will have other opportunities to discuss them, but at this stage we should at least get a response to that.

If it is true that in Northern Ireland there is now a different standard for the way in which cyberflashing offences are to be undertaken—taking into account the points made very well by the noble Baroness, Lady Fox, and the worry about encouraging more offences for which crimes may not necessarily be appropriate at this stage, particularly the one about recklessness—do the Government not have a slight problem here? In the first case, do we really accept that we want differences between the various regions and nations of our country in these important issues? We support devolution but we also need to have a sense of what the United Kingdom as a whole stands for in its relationship with these types of criminal offence, if they are criminal. If that happens, do we need a better understanding of why one part of the country has moved in a particular way, and is that something that we are missing in picking up action that is perhaps necessary in other areas? As my noble friend Lady Kennedy has also said, some of the work she has been doing in Scotland is ahead of the work that we have been doing in this part of the United Kingdom, and we need to pick up the lessons from that as well.

As I said at the beginning, this is an interesting range of amendments. They are not as similar as the grouping might suggest, but they point in a direction that needs government attention, and I very much look forward to the Minister’s comments on them.

[Lord Parkinson of Whitley Bay (Con)]

I am grateful to my noble friends Lady Buscombe and Lord Leicester and my noble and learned friend Lord Garnier for the amendments that they have tabled, with which we began this helpful debate, as well as for their time earlier this week to discuss them. We had a good debate on this topic in Committee and I had a good discussion with my noble friend Lady Buscombe and my noble and learned friend Lord Garnier on Monday. I will explain why the Government cannot accept the amendments that they have brought forward today.

I understand my noble friends’ concerns about the impact that fake reviews can have on businesses, but the Bill and the criminal offences it contains are not the right place to address this issue. The amendments would broaden the scope of the offences and likely result in overcriminalisation, which I know my noble friends would not want to see.

13:30

I reassure my noble friends that, as we have discussed, the Digital Markets, Competition and Consumers Bill will address these issues by including a power to take stronger action against fake and misleading reviews. Schedule 18 to that Bill sets out a power for the Secretary of State to that effect. While that Bill does not place duties on private individuals acting in a personal capacity, the proposals are likely to require traders hosting reviews to take reasonable and proportionate steps to ensure that they represent a genuine consumer experience.

The Government will also consult on what is reasonable and proportionate for businesses to do to ensure that reviews are genuine and do not unduly harm businesses or the people who own them. My noble friends’ Amendment 5A would represent a significant expansion of the communications offences in the Bill. It would criminalise a wide range of conduct other than sending messages. Criminalising conduct which is merely capable of encouraging someone else to send a message would represent a significant risk to freedom of expression and is beyond the scope of the offence we have drafted. While I remain sympathetic to my noble friends about the malignant behaviour they have highlighted and the impact on the people who own the businesses affected, I continue to agree to disagree with my noble and learned friend Lord Garnier about whether this is a matter for this Bill. I continue to point him and my noble friends in the direction of the Digital Markets, Competition and Consumers Bill, which my noble friend Lord Camrose will take through; he has heard the points my noble friends have raised today and in earlier stages of the Online Safety Bill.

Amendment 3, tabled by the noble Baroness, Lady Kennedy of The Shaws, seeks to amend the definition of the offence in Clause 164(1) to add the threats of “rape” and “disfigurement” to the existing description, which includes “a threat of death”. Her Amendment 5 is consequential. I am very grateful to the noble Baroness for her time yesterday to discuss her amendments. The Government agree that threats of rape and disfigurement are truly abhorrent—she set out some harrowing examples—and should be captured in criminal law, which is why the offence, as drafted, already covers these threats. Rape is included in the definition of “serious harm”. As I discussed with the noble Baroness yesterday, disfigurement would also be captured under the definition of “serious harm”, as it would constitute grievous bodily harm.

I know that the noble Baroness has come across some very distressing examples of threats to disfigure in her work on tackling misogyny, including the review she mentioned that she chaired for the Scottish Government, but if disfigurement were specified separately in this offence, it could introduce ambiguity about the ambit of serious harm. Grievous bodily harm is an established and well-understood legal concept; singling out disfigurement could lead to uncertainty in the law about other harms which amount to grievous bodily harm.

The noble Baroness’s Amendment 4 seeks to clarify that a person who sends a threatening message would meet the threshold of this offence, even if the threat were carried out by “another individual”. The offence, as drafted, does not require the threat to be carried out by a particular person, but following the helpful discussions with the noble Baroness yesterday, I am happy to acknowledge the need for greater clarity here. While her amendment would make it clearer that the offence will capture scenarios where the recipient feared that the threat would be carried out by the sender or a different individual, it could restrict this to specific or identifiable individuals. This would apply only where there was an intention, and not where a sender is reckless as to causing the recipient to fear the threat being carried out. As the noble Baroness knows, while we cannot accept the amendment as she has drafted it, we are happy to commit to bringing forward a government amendment at Third Reading to clarify that the offence is committed whether or not the threat would be carried out by the person who sent the message. I am very grateful to her for pressing this issue.

Amendment 5B, tabled by the noble Lords, Lord Allan of Hallam and Lord Clement-Jones, seeks to ensure that the new serious self-harm offence does not lead to the prosecution of people sharing content to support people at risk of self-harm. I fully understand the concern which has prompted their amendment, and I reassure them that the offence has been developed with the aim of ensuring that it does not criminalise the sorts of people that they mentioned. The Law Commission addressed this issue and was confident that the inclusion of the two key elements it recommended—an intention to encourage or assist another person to harm themselves, and a threshold of harm consistent with grievous bodily harm—will constrain the offence to only the most culpable offending.

We expect these tight parameters and the usual prosecutorial discretion to provide sufficient safeguards against inappropriate prosecutions. The defence of necessity may also serve to ensure that actions undertaken in extraordinary circumstances to mitigate more serious harm should not be criminal. The offence of encouraging or assisting suicide has not led to the prosecution of vulnerable people who talk about suicidal feelings online or those who offer them support, and there is no reason to suppose that this offence will criminalise those whom this amendment seeks to protect. However, the noble Lords raise an important issue and I assure them that we will keep the operation of the offence under review. The Government have committed to expanding it to cover all ways of encouraging or assisting self-harm so there will be an opportunity to revisit it in due course.

[Lord Allan of Hallam (LD)]

I appreciate the Minister’s response. Could he also respond to my suggestion that it would be helpful for some of the people working on the front line to meet officials to go through their concerns in more detail?

[Lord Parkinson of Whitley Bay (Con)]

I am very happy to make that commitment. It would be useful to have their continued engagement, as we have had throughout the drafting of the Bill.

The noble Baroness, Lady Burt of Solihull, has tabled a number of amendments related to the new offence of cyberflashing. I will start with her Amendment 6. We believe that this amendment reduces the threshold of the new offence to too great an extent. It could, for example, criminalise a person sending a picture of naked performance art to a group of people, where one person might be alarmed by the image but the sender sends it anyway because he or she believes that it would be well received. That may be incorrect, unwise and insensitive, but we do not think it should carry the risk of being convicted of a serious sexual offence.

Crucially, the noble Baroness’s amendment requires that the harm against the victim be proven in court. Not only does this add an extra step for the prosecution to prove in order for the perpetrator to be convicted, it creates an undue burden on the victim, who would be cross-examined about his or her—usually her—experience of harm. For example, she might have to explain why she felt humiliated; this in itself could be retraumatising and humiliating for the victim. By contrast, Clause 170 as drafted means that the prosecution has only to prove and focus on the perpetrator’s intent.

[Baroness Burt of Solihull (LD)]

I am very grateful for the Minister’s comments. This is the crux of my confusion: I am not entirely sure why it is necessary for the victim to appear in court. In intimate image abuse, is it not the case that the victim does not have to make an appearance in court? What is the difference between intimate image abuse and cyberflashing abuse? I do not get why one attracts a physical court appearance and the other does not. They seem to be different sides of the same coin to me.

[Lord Parkinson of Whitley Bay (Con)]

If a defendant said that he—usually he—had sent an image believing that the consent of the recipient was implied, the person making the complaint would be cross-examined on whether or not she had indeed given that consent. If an offence predicated on proof of non-consent or proof of harm were made out, the victim could be called to give evidence and be cross-examined in court. The defence would be likely to lead evidence challenging the victim’s characteristics and credibility. We do not want that to be a concern for victims; we do not want that to be a barrier to victims coming forward and reporting abuse for fear of having their sexual history or intentions cross-examined.

[Lord Clement-Jones (LD)]

My Lords, we are coming to this in the next group, but that is a consent-based offence, is it not?

[Lord Parkinson of Whitley Bay (Con)]

It is—and I shall explain more in that group why we take that approach. But the offence of cyberflashing matches the existing offence of flashing, which is not a consent-based offence. If somebody flashes at someone in public, it does not matter whether the person who sees that flashing has consented to it—it is the intent of the flasher that is the focus of the court. That is why the Law Commission and we have brought the cyberflashing offence forward in the same way, whereas the sharing of intimate images without somebody’s consent relies on the consent to sharing. But I shall say a bit more when we get to that group, if the noble Lord will allow.

[Lord Clement-Jones (LD)]

I am sure that the noble and learned Lord, Lord Garnier, is going to come in, and he knows a great deal more about this than I do. But we are getting into the territory where we talk about whether or not somebody needs to appear in court in order to show consent. That was all that I was trying to point out, in a way—that, if the Minister accepted the amendment on behalf of my noble friend, and then the complainant had to appear in court, why is that not the case with intimate abuse?

[Lord Parkinson of Whitley Bay (Con)]

Perhaps I can respond to the point about intimate abuse when we come on to the next group—that might be helpful.

[Lord Clement-Jones (LD)]

It might be helpful—except for the refusal to accept my noble friend’s amendment.

[Lord Parkinson of Whitley Bay (Con)]

If the defendant said that they had sent an image because they thought that consent had been obtained, the person whose consent was under question would find themselves cross-examined on it in a way that we do not want to see. We do not want that to be a barrier to people reporting this, in the same way that it is not for people who report flashing on the streets.

[Lord Garnier (Con)]

My Lords, I do not want to interfere in private grief, but the courts have powers to protect witnesses, particularly in cases where they are vulnerable or will suffer acute distress, by placing screens in the way and controlling the sorts of cross-examinations that go on. I accept the concern expressed by the noble Baroness, Lady Burt, but I think that my noble friend the Minister will be advised that there are protective measures in place already for the courts to look after people of the sort that she is worried about.

[Lord Parkinson of Whitley Bay (Con)]

There are indeed but, as my noble and learned friend’s interjection makes clear, those are still means for people to be cross-examined and give their account in court, even with those mitigations and protections. That is really the crux of the issue here.

We have already debated the risk that the approach that the noble Baroness sets out in her Amendments 5C and 7A criminalises sending messages, and people whom we would not deem to be criminal. I want to reassure her and your Lordships’ House that the intent-based offence, as drafted at Clause 170, provides the comprehensive protections for victims that we all want to see, including situations where the perpetrator claims it was “just for a joke”. The offence is committed if a perpetrator intended to cause humiliation, and that captures many supposed “joke” motives, as the perverted form of humour in this instance is often derived from the victim’s humiliation, alarm or distress.

Indeed, it was following consultation with victims’ groups and others that the Law Commission added humiliation as a form of intent to the offence to address those very concerns. Any assertions made by a defendant in this regard would not be taken at face value but would be considered and tested by the police and courts in the usual way, alongside the evidence. The Crown Prosecution Service and others are practised in prosecuting intent, and juries and magistrates may infer intention from the context of the behaviour and its foreseeable consequences.

The addition of defences, as the noble Baroness suggests in her Amendment 7A, is unfortunately still not sufficient to ensure that we are not overcriminalising here. Even with the proposed defences, sending a picture of genitalia without consent for medical reasons would still risk being considered a criminal Act and potentially compel a medical professional to justify that he or she has an adequate defence.

13:45

[Baroness Burt of Solihull (LD)]

On the various protections already within that original amendment, if it went to court, why would the person who had sent the image get prosecuted if he or she had a good reason for having sent it?

[Lord Parkinson of Whitley Bay (Con)]

It is about the burden on the medical professionals and the question of whether it comes to court when the police investigate it and the prosecution make out. We do not want to see that sort of behaviour being overly criminalised or the risk of prosecution hanging over people for reasons where it is not needed. We want to make sure that the offence is focused on the behaviour that we all want to tackle here.

The Law Commission has looked at this extensively—and I am glad the noble Baroness has had the opportunity to speak to it directly—and brought forward these proposals, which mirror the offence of flashing that already exists in criminal law. We think that is the right way of doing it and not risking the overcriminalisation of those whom noble Lords would not want to capture.

Contrary to some concerns that have been expressed, the onus is never on the victim to marshal evidence or prove the intent of the perpetrator. It is for the police and the Crown Prosecution Service when investigating the alleged offence or prosecuting the case in court. That is why we and the Law Commission consulted the police and the CPS extensively in bringing the offence forward.

By contrast, as I say, the consent-based approach is more likely to put onerous pressure on the victim by focusing the case on his or her behaviour and sexual history instead of the behaviour of the perpetrator. I know and can tell from the interjections that noble Lords still have some concerns or questions about this offence as drafted. I reassure them, as my noble friend Lady Morgan of Cotes urged, that we will be actively monitoring and reviewing the implementation of this offence, along with the Crown Prosecution Service and the police, to ensure that it is working effectively and bringing perpetrators to justice.

The noble Baroness, Lady Burt, also raised the importance of public engagement and education in this regard. As she may know, the Government have a long-term campaign to tackle violence against women and girls. The Enough campaign covers a range of online and offline forms of abuse, including cyberflashing. The campaign includes engaging with the public to deepen understanding of this offence. It focuses on educating young people about healthy relationships, on targeting perpetrators and on ensuring that victims of violence against women and girls can access support. Future phases of the Enough campaign will continue to highlight the abusive nature and unacceptability of these behaviours, and methods for people safely to challenge them.

In addition, in our tackling violence against women and girls strategy the Government have committed to invest £3 million better to understand what works to prevent violence against women and girls, to invest in high-quality, evidence-informed prevention projects, including in schools, aiming to educate and inform children and young people about violence against women and girls, healthy relationships and the consequences of abuse.

With that commitment to keep this under review—to ensure that it is working in the way that the Law Commission and the Government hope and expect it to—and with that explanation of the way we will be encouraging the public to know about the protections that are there through the law and more broadly, I hope noble Lords will be reassured and will not press their amendments.

[Baroness Kennedy of The Shaws (Lab)]

Before the Minister sits down, I express my gratitude that he has indicated that my amendment would have some serious impact. I thank the noble Lord, Lord Clement-Jones, for saying that there should be some learning among men in the House and in wider society about what puts real fear in the hearts of women and how it affects how women conduct their lives. I thank those who said that some change is necessary.

We have to remember that this clause covers a threatening communications offence. I know that something is going to be said about the particular vulnerability of women and girls—the noble Baroness, Lady Morgan, mentioned it, and I am grateful for that—but this offence is not specific to one gender. It is a general offence that someone commits if a message they send conveys a threat of death or serious harm.

I reassure the noble Baroness, Lady Fox, that we are not talking about a slight—saying to a woman that she is ugly or something. This is not about insults but about serious threats. The business about it being reckless as to whether or not it is going to be carried out is vital. Clause 164(1)(c)(i) says an offence is committed if it is intended that an individual encountering the message would fear that the threat would be carried out. I would like to see added the words, “whether or not by the person sending the message”.

Just think of this in the Irish context of years gone by. If someone sent a message saying, “You should be kneecapped”, it is very clear that we would be talking about something that would put someone in terror and fear. It is a serious fear, so I am glad that this is supported by the Minister, and I hope we will progress it to the next stage.

[Lord Harlech (Con)]

My Lords, without wishing to disrupt the very good nature of this debate, I remind the House that the Companion advises against speaking more than once on Report, except for specific questions or points of elucidation.

[Lord Parkinson of Whitley Bay (Con)]

None the less, I am grateful to the noble Baroness for her clarification and expansion of this point. I am glad that she is satisfied with the approach we have set out.

[Baroness Kennedy of The Shaws (Lab)]

It is not specific to women; it is general.

[Lord Parkinson of Whitley Bay (Con)]

The issue the noble Baroness has highlighted will protect all victims against people trying to evade the law, and I am grateful to her. We will bring forward an amendment at Third Reading.

[Lord Garnier (Con)]

My Lords, I will be incredibly brief because everything that needs to be said has been said at least twice. I am grateful to those who have taken the trouble to listen to what I had to say, and I am grateful to the Minister for his response. I beg leave to withdraw my amendment.

Amendment 2A withdrawn.

Amendment 2B not moved.

Clause 164: Threatening communications offence

Amendments 3 to 5 not moved.

Clause 165: Interpretation of sections 162 to 164

Amendment 5A not moved.

Clause 167: Offence of encouraging or assisting serious self-harm

Amendment 5B not moved.

Clause 170: Sending etc photograph or film of genitals

Amendments 5C and 6 not moved.

Amendment 7

Moved by

[Lord Parkinson of Whitley Bay]

7: Clause 170, page 149, line 25, after “made” insert “or altered”
Member’s explanatory statement
This amendment provides that “photograph” and “film” in the new offence of sending a photograph or film of genitals (and, by extension the new offences of sharing an intimate photograph or film) includes an image which has been altered and which appears to be a photograph or film.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful for the opportunity to continue some of the themes we touched on in the last group and the debate we have had throughout the passage of the Bill on the importance of tackling intimate image abuse. I shall introduce the government amendments in this group that will make a real difference to victims of this abhorrent behaviour.

Before starting, I take the opportunity again to thank the Law Commission for the work it has done in its review of the criminal law relating to the non-consensual taking, making and sharing of intimate images. I also thank my right honourable friend Dame Maria Miller, who has long campaigned for and championed the victims of online abuse. Her sterling efforts have contributed greatly to the Government’s approach and to the formulation of policy in this sensitive area, as well as to the reform of criminal law.

As we announced last November, we intend to bring forward a more expansive package of measures based on the Law Commission’s recommendations as soon as parliamentary time allows, but the Government agree with the need to take swift action. That is why we are bringing forward these amendments now, to deliver on the recommendations which fall within the scope of the Bill, thereby ensuring justice for victims sooner.

These amendments repeal the offence of disclosing private sexual photographs and films with intent to cause distress and replace it with four new sexual offences in the Sexual Offences Act 2003. The first is a base offence of sharing an intimate photograph or film without consent or reasonable belief in consent. This recognises that the sharing of such images, whatever the intent of the perpetrator, should be considered a criminal violation of the victim’s bodily autonomy.

The amendments create two more serious offences of sharing an intimate photograph or film without consent with intent to cause alarm, distress or humiliation, or for the purpose of obtaining sexual gratification. Offenders committing the latter offence may also be subject to notification requirements, commonly referred to as being on the sex-offenders register. The amendments create an offence of threatening to share an intimate image. These new sharing offences are based on the Law Commission’s recommended approach to the idea of intimate photographs or films to include images which show or appear to show a person nude or partially nude, or which depict sexual or toileting activity. This will protect more victims than the current Section 33 offence, which protects only images of a private and sexual nature.

Finally, these clauses will, for the first time, make it a criminal offence to share a manufactured or so-called deepfake image of another person without his or her consent. This form of intimate image abuse is becoming more prevalent, and we want to send a clear message that it will not be tolerated.

By virtue of placing these offences in the Sexual Offences Act 2003, we are extending to these offences also the current special measures, so that victims can benefit from them in court, and from anonymity provisions, which are so important when something so intimate has been shared without consent. This is only the first stage in our reform of the law in this area. We are committed to introducing additional changes, giving effect to further recommendations of the Law Commission’s report which are beyond the scope of the Bill, when parliamentary time allows.

I hope that noble Lords from across your Lordships’ House will agree that these amendments represent an important step forward in tackling intimate image abuse and protecting victims. I commend them to the House, and I beg to move.

[Lord Allan of Hallam (LD)]

My Lords, I welcome these new offences. From my professional experience, I know that what came to be known as “sextortion” created some of the most distressing cases you could experience, where an individual would obtain intimate images, often by deception, and then use them to make threats. This is where a social network is particularly challenging; it enables people to access a network of all the family and friends of an individual whose photo they now hold and to threaten to distribute it to their nearest and dearest. This affects men and women; many of the victims were men who were honey-potted into sharing intimate images and in the worst cases it led to suicide. It was not uncommon that people would feel that there was no way out; the threat was so severe that they would take their own lives. It is extremely welcome that we are doing something about it, and making it more obvious to anyone who is thinking about committing this kind of offence that they run the risk of criminal prosecution.

I have a few specific questions. The first is on the definitions in proposed new Section 66D, inserted by government Amendment 8, where the Government are trying to define what “intimate” or “nudity” represents. This takes me back again to my professional experience of going through slide decks and trying to decide what was on the right or wrong side of a nudity policy line. I will not go into the detail of everything it said, not least because I keep noticing younger people in the audience here, but I will leave you with the thought that you ended up looking at images that involved typically fishnets, in the case of women, and socks, in the case of men—I will leave the rest to your Lordships’ imaginations to determine at what point someone has gone from being clothed to nude. I can see in this amendment that the courts are going to have to deal with the same issues.

The serious point is that, where there is alignment between platform policies, definitions and what we do not want to be distributed, that is extremely helpful, because it then means that if someone does try to put an intimate image out across one of the major platforms, the platform does not have to ask whether there was consent. They can just say that it is in breach of their policy and take it down. It actually has quite a beneficial effect on slowing transmission.

The other point that comes out of that is that some of these questions of intimacy are quite culturally subjective. In some cultures, even a swimsuit photo could be used to cause humiliation and distress. I know this is extremely difficult; we do not want to be overly censorious but, at the same time, we do not want to leave people exposed to threats, and if you come from a culture where a swimsuit photo would be a threat, the definitions may not work for you. So I hope that, as we go through this, there will be a continued dialogue between experts in the platforms who have to deal with these questions and people working on the criminal offence side. To the extent that we can achieve it, there should be alignment and the message should go out that if you are thinking of distributing an image like this, you run the risk of being censored by the platforms but also of running into a criminal prosecution. That is on the mechanics of making it work.

14:00

I have two questions on the specifics of implementation. I am sure the Minister is going to confirm this, but will our definitions of photographs and films stretch to novel settings such as virtual reality? This is where somebody takes an image of an individual and creates a virtual reality avatar. Our expectation is that that is still within the definition of a photograph and will not escape the threat of prosecution. I hope he can confirm that.

Secondly, on the cross-jurisdictional questions that regularly come up, from experience, many of these sextortion cases occur cross-border. There are rings in particular countries that are well known, and law enforcement will be able to share information on those. It is well known where these rings are. If this offence is going to be effective, we have to make sure there is that cross-border co-operation between law enforcement agencies in each country. Otherwise, the problem we have today, which is that people feel they can do this with impunity, continues. If there is that cross-border co-operation, some of the regimes within which some of the perpetrators live will not treat them as nicely as we would if those convictions happen. Having created this offence, let us make sure it is effective, whether or not the perpetrator is in the United Kingdom. I hope that on those points the Minister can give some additional assurances.

[Baroness Kidron (CB)]

I also welcome these amendments and want to pay tribute to Maria Miller in the other place for her work on this issue. It has been extraordinary. I too was going to raise the issue of the definition of “photograph”, so perhaps the Minister could say or, even better, put it in the Bill. It does extend to those other contexts.

My main point is about children. We do not want to criminalise children, but this is pervasive among under-18s. I do want to make the distinction between those under-18s who intentionally harm another under-18 and have to be responsible for what they have done in the meaning of the law as the Minister set it out, and those who are under the incredible pressure—I do not mean coercion, because that is another out-clause—of oversharing that is inherent in the design of many of these services. That is an issue I am sure we are going to come back to later today. I would love to hear the Minister say something about the Government’s intention from the Dispatch Box: that it is preventive first and there is a balance between education and punishment for under-18s who find themselves unavoidably in this situation.

[Baroness Morgan of Cotes (Con)]

Very briefly, before I speak to these amendments, I want to welcome them. Having spoken to and introduced some of the threats of sharing intimate images under the Domestic Abuse Act 2021, I think it is really welcome that everything has been brought together in one place. Again, I pay tribute to the work of Dame Maria Miller and many others outside who have raised these as issues. I also want to pay tribute to the Ministry of Justice Minister Edward Argar, who has also worked with my noble friend the Minister on this.

I have one specific question. The Minister did mention this in his remarks, but could he be absolutely clear that these amendments do not mention specifically the lifetime anonymity of claimants and the special measures in relation to giving evidence that apply to witnesses. That came up in the last group of amendments as well. Because they are not actually in this drafting, it would be helpful if he could put on record the relationship with the provisions in the Sexual Offences Act 2003. I know that would be appreciated by campaigners.

[Lord Clement-Jones (LD)]

My Lords, I have very little to add to the wise words that we have heard from my noble friend and from the noble Baronesses, Lady Kidron and Lady Morgan. We should thank all those who have got us to this place, including the Law Commission. It was a separate report. In that context, I would be very interested to hear a little more from the Minister about the programme of further offences that he mentioned. The communication offences that we have talked about so far are either the intimate images offences, which there was a separate report on, or other communications offences, which are also being dealt with as part of the Bill. I am not clear what other offences are in the programme.

Finally, the Minister himself raised the question of deepfakes. I have rustled through the amendments to see exactly how they are caught. The question asked by the noble Baroness, Lady Kidron, is more or less the same but put a different way. How are these deepfakes caught in the wording that is now being included in the Bill? This is becoming a big issue and we must be absolutely certain that it is captured.

[Baroness Merron (Lab)]

My Lords, I am grateful to the Minister for introducing this suite of government amendments. From these Benches we welcome them. From the nature of the debate, this seems to be very much a work in progress. I wish the Minister well as he and the Justice Minister continue to pick their way through a route to get us to where we need to be. I too thank the Law Commission, Dame Maria Miller MP and so many other campaigners who, as noble Lords have said, have got us to this important point.

However, as I am sure is recognised, with the best of intentions, the government amendments still leave some areas that are as yet unresolved, particularly on sharing images with others: matters such as revenge porn and sending unwanted pictures on dating apps. There are areas still to be explored. The Minister and the Justice Minister said in a letter that, when parliamentary time allows, there will be a broader package of offences being brought forward. I realise that the Minister cannot be precise, but I would appreciate some sense of urgency or otherwise in terms of parliamentary time and when that might be.

We are only just starting to understand the impact of, for example, artificial intelligence, which we are about to come on to. That will be relevant in this regard too. We all understand that this is a bit of a moveable feast. The test will be whether this works. Can the Minister say a bit more about how this suite of measures will be kept under review and, in so doing, will the Government be looking at keeping an eye on the number of charges that are brought? How will this be reported to the House?

In line with this, will there be some consideration of the points that were raised in the previous group? I refer particularly to the issues raised in the amendments tabled by the noble Baroness, Lady Burt, especially where there may not be the intent, or the means, to obtain sexual gratification. They might be about “having a bit of a laugh”, as the noble Baroness said—which might be funny to some but really not funny to others.

In welcoming this, I hope that the Minister will indicate that this is just one step along the way and when we will see further steps.

[Lord Parkinson of Whitley Bay (Con)]

I am happy to respond clearly to that. As my right honourable friend Edward Argar MP and I said in our letter, this is just the first step towards implementing the changes which the Law Commission has recommended and which we agree are needed. We will implement a broader package of offences, covering, for instance, the taking of intimate images without consent, which were also part of the Law Commission’s report. The parameters of this Bill limit what we can do now. As I said in my opening remarks, we want to bring those forward now so that we can provide protections for victims in all the ways that the Bill gives us scope to do. We will bring forward further provisions when parliamentary time allows. The noble Baroness will understand that I cannot pre-empt when that is, although if we make good progress on the Bill, parliamentary time may allow for it sooner.

The noble Baroness also asked about our review. We will certainly take into account the number of prosecutions and charges that are brought. That is always part of our consideration of criminal law, but I am happy to reassure her that this will be the case here. These are new offences, and we want to make sure that they are leading to prosecutions to deter people from doing it.

The noble Lord, Lord Allan of Hallam, asked whether images will include those shared on virtual reality platforms and in other novel ways. As he knows, the Bill is written in a technologically neutral way to try to be future-proof and capture those technologies which have not yet been invented. I mentioned deepfakes in my opening remarks, which we can envisage. An image will be included on whatever platform it is shared, if it appears to be a photograph or film—that is to say, if it is photo-real. I hope that reassures him.

[Lord Clement-Jones (LD)]

If the Minister has time, can he actually direct us to that, because it is important that we are clear that it really is captured?

[Lord Parkinson of Whitley Bay (Con)]

In the amendments, if I can, I will. In the meantime, I reassure my noble friend Lady Morgan of Cotes that, as I said in opening, placing these offences in the Sexual Offences Act means that we are also extending the current special measures provisions to these offences, as we heard in our debate on the last group, so that victims can benefit from those in court. The same applies to anonymity provisions, which are so important when something so intimate has been shared without someone’s consent.

I promised in the previous group to outline the difference in the consent basis between this offence and the cyberflashing offence. Both are abhorrent behaviours which need to be addressed in criminal law. Although the levels of harm and distress may be the same in each case, the Law Commission recommended different approaches to take into account the different actions of the perpetrator in each offence. Sharing an intimate image of somebody without their consent is, in and of itself, wrongful, and a violation of their bodily privacy and sexual autonomy. Sending a genital image without the consent of the recipient is not, in and of itself, wrongful; for instance, the example I gave in the previous debate about an artistic performance, or a photograph which depicts a naked protester. If that was sent without the consent of the recipient, it is not always or necessarily harmful. This is an issue which the Law Commission looked at in some detail.

The criminal law must take the culpability of the perpetrator into account. I reassure noble Lords that both we and the Law Commission have looked at these offences considerably, working with the police and prosecutors in doing so. We are confident that the Bill provides the comprehensive protection for victims that we all want to see, including in situations where a perpetrator may claim that it was just a joke.

The terms “photograph” and “film” are defined in proposed new Section 66D(5). That refers to the definition in new Section 66A, which refers to an image which is made or altered in any way

“which appears to be a photograph or film”.

That is where the point I make about photo-reality is captured.

The noble Baroness, Lady Kidron, is right to highlight that this is a matter not just for the criminal law. As we discussed on the previous group, it is also a matter for public education, so that young people and users of any age are aware of the legal boundaries and legal issues at stake here. That is why we have the public education campaigns to which I alluded in the previous group.

14:15

[Baroness Kidron (CB)]

I believe I misspoke when I asked my question. I referred to under-18s. Of course, if they are under 18 then it is child sexual abuse. I meant someone under the age of 18 with an adult image. I put that there for the record.

[Lord Parkinson of Whitley Bay (Con)]

If the noble Baroness misspoke, I understood what she intended. I knew what she was getting at.

With that, I hope noble Lords will be content not to press their amendments and that they will support the government amendments.

Amendment 7 agreed.

Amendment 7A not moved.

Amendment 8

Moved by

[Lord Parkinson of Whitley Bay]

8: After Clause 170, insert the following new Clause—
“Sharing or threatening to share intimate photograph or film
In the Sexual Offences Act 2003, after section 66A (inserted by section 170), insert—“66B Sharing or threatening to share intimate photograph or film(1) A person (A) commits an offence if—(a) A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state,(b) B does not consent to the sharing of the photograph or film, and(c) A does not reasonably believe that B consents.(2) A person (A) commits an offence if—(a) A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state,(b) A does so with the intention of causing B alarm, distress or humiliation, and(c) B does not consent to the sharing of the photograph or film.(3) A person (A) commits an offence if—(a) A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state, (b) A does so for the purpose of A or another person obtaining sexual gratification,(c) B does not consent to the sharing of the photograph or film, and(d) A does not reasonably believe that B consents.(4) A person (A) commits an offence if—(a) A threatens to share a photograph or film which shows, or appears to show, another person (B) in an intimate state, and(b) A does so—(i) with the intention that B or another person who knows B will fear that the threat will be carried out, or(ii) being reckless as to whether B or another person who knows B will fear that the threat will be carried out.(5) Subsections (1) to (4) are subject to section 66C (exemptions).(6) For the purposes of subsections (1) to (3) and section 66C(3)(b)—(a) “consent” to the sharing of a photograph or film includes general consent covering the particular act of sharing as well as specific consent to the particular act of sharing, and(b) whether a belief is reasonable is to be determined having regard to all the circumstances including any steps A has taken to ascertain whether B consents.(7) Where a person is charged with an offence under subsection (4), it is not necessary for the prosecution to prove—(a) that the photograph or film mentioned in the threat exists, or(b) if it does exist, that it is in fact a photograph or film which shows or appears to show a person in an intimate state.(8) It is a defence for a person charged with an offence under subsection (1) to prove that the person had a reasonable excuse for sharing the photograph or film.(9) A person who commits an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding the maximum term for summary offences or a fine (or both).(10) A person who commits an offence under subsection (2), (3) or (4) is liable—(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.(11) In subsection (9) “the maximum term for summary offences” means—(a) if the offence is committed before the time when section 281(5) of the Criminal Justice Act 2003 comes into force, six months;(b) if the offence is committed after that time, 51 weeks.(12) If on the trial of a person charged with an offence under subsection (2) or (3) a magistrates’ court or jury finds the person not guilty of the offence charged, the magistrates’ court or jury may find the person guilty of an offence under subsection (1).(13) The Crown Court has the same powers and duties in relation to a person who is by virtue of subsection (12) convicted before it of an offence under subsection (1) as a magistrates’ court would have on convicting the person of the offence. 66C Sharing or threatening to share intimate photograph or film: exemptions(1) A person (A) who shares a photograph or film which shows, or appears to show, another person (B) in an intimate state does not commit an offence under section 66B(1), (2) or (3) if—(a) the photograph or film was taken in a place to which the public or a section of the public had or were permitted to have access (whether on payment or otherwise),(b) B had no reasonable expectation of privacy from the photograph or film being taken, and(c) B was, or A reasonably believes that B was, in the intimate state voluntarily.(2) For the purposes of subsection (1)(b), whether a person had a reasonable expectation of privacy from a photograph or film being taken is to be determined by reference to the circumstances that the person sharing the photograph or film reasonably believes to have existed at the time the photograph or film was taken.(3) A person (A) who shares a photograph or film which shows, or appears to show, another person (B) in an intimate state does not commit an offence under section 66B(1), (2) or (3) if—(a) the photograph or film had, or A reasonably believes that the photograph or film had, been previously publicly shared, and(b) B had, or A reasonably believes that B had, consented to the previous sharing.(4) A person (A) who shares a photograph or film which shows, or appears to show, another person (B) in an intimate state does not commit an offence under section 66B(1) if—(a) B is a person under 16,(b) B lacks, or A reasonably believes that B lacks, capacity to consent to the sharing of the photograph or film, and(c) the photograph or film is shared—(i) with a healthcare professional acting in that capacity, or(ii) otherwise in connection with the care or treatment of B by a healthcare professional.(5) A person who shares a photograph or film which shows, or appears to show, a child in an intimate state does not commit an offence under section 66B(1) if the photograph or film is of a kind ordinarily shared between family and friends.(6) A person who threatens to share a photograph or film which shows, or appears to show, another person in an intimate state does not commit an offence under section 66B(4) if, by reason of this section, the person would not commit an offence under section 66B(1), (2) or (3) by sharing the photograph or film in the circumstances conveyed by the threat.66D Sharing or threatening to share intimate photograph or film: interpretation(1) This section applies for the purposes of sections 66B and 66C.(2) A person “shares” something if the person, by any means, gives or shows it to another person or makes it available to another person.(3) But a provider of an internet service by means of which a photograph or film is shared is not to be regarded as a person who shares it.(4) “Photograph” and “film” have the same meaning as in section 66A (see subsections (3) to (5) of that section). (5) Except where a photograph or film falls within subsection (8), a photograph or film “shows, or appears to show, another person in an intimate state” if it shows or appears to show—(a) the person participating or engaging in an act which a reasonable person would consider to be a sexual act,(b) the person doing a thing which a reasonable person would consider to be sexual,(c) all or part of the person’s exposed genitals, buttocks or breasts,(d) the person in an act of urination or defecation, or(e) the person carrying out an act of personal care associated with the person’s urination, defecation or genital or anal discharge.(6) For the purposes of subsection (5)(c) the reference to all or part of a person’s “exposed” genitals, buttocks or breasts includes—(a) a reference to all or part of the person’s genitals, buttocks or breasts visible through wet or otherwise transparent clothing,(b) the case where all or part of the person’s genitals, buttocks or breasts would be exposed but for the fact that they are covered only with underwear, and(c) the case where all or part of the person’s genitals, buttocks or breasts would be exposed but for the fact that they are obscured, provided that the area obscured is similar to or smaller than an area that would typically be covered by underwear worn to cover a person’s genitals, buttocks or breasts (as the case may be).(7) In subsection (6)(c) “obscured” means obscured by any means, other than by clothing that a person is wearing, including, in particular, by an object, by part of a person’s body or by digital alteration.(8) A photograph or film falls within this subsection if (so far as it shows or appears to show a person in an intimate state) it shows or appears to show something, other than breastfeeding, that is of a kind ordinarily seen in public.(9) For the purposes of subsection (8) “breastfeeding” includes the rearranging of clothing in the course of preparing to breastfeed or having just finished breastfeeding.””Member’s explanatory statement
This amendment provides for new offences of sharing or threatening to share intimate photographs or films.

Amendment 8 agreed.

Amendment 9

Moved by

[Lord Parkinson of Whitley Bay]

9: After Clause 171, insert the following new Clause—
“Repeals in connection with offences under section (Sharing or threatening to share intimate photograph or film)
Sections 33 to 35 of the Criminal Justice and Courts Act 2015 (disclosing or threatening to disclose private sexual photographs and films with intent to cause distress) are repealed.”Member’s explanatory statement
This amendment is consequential on the new Clause creating offences of sharing or threatening to share intimate photographs or films.

Amendment 9 agreed.

Clause 172: Consequential amendments

Amendments 10 and 11

Moved by

[Lord Parkinson of Whitley Bay]

10: Clause 172, page 150, line 15, leave out “section 170” and insert “sections 170 and (Sharing or threatening to share intimate photograph or film)”
Member’s explanatory statement
This amendment provides that Part 3 of Schedule 14 also makes consequential amendments on the new Clause creating offences of sharing and threatening to share intimate photographs or films.

11: Clause 172, page 150, line 15, at end insert—
“(4) Part 4 of Schedule 14 contains amendments consequential on section (Repeals in connection with offences under section (Sharing or threatening to share intimate photograph or film)).”Member’s explanatory statement
This amendment introduces a new Part of Schedule 14 which makes consequential amendments on the new Clause in my name repealing sections 33 to 35 of the Criminal Justice and Courts Act 2015.

Amendments 10 and 11 agreed.

Schedule 14: Amendments consequential on offences in Part 10 of this Act

Amendments 12 to 26

Moved by

[Lord Parkinson of Whitley Bay]

12: Schedule 14, page 240, line 24, after first “the” insert “first”
Member’s explanatory statement
This is a technical amendment ensuring that the amendments made under Schedule 14 to Schedule 1 to the Children and Young Persons Act 1933 are inserted in the correct place in that Act.

13: Schedule 14, page 240, line 25, after “66A” insert “, 66B”
Member’s explanatory statement
This amendment adds a reference to the new offences of sharing and threatening to share an intimate photograph or film to Schedule 1 to the Children and Young Persons Act 1933 (offences to which certain provisions of that Act apply).

14: Schedule 14, page 240, line 25, at end insert—
“13A_ In section 65A of the Police and Criminal Evidence Act 1984 (“qualifying offences” for the purposes of Part 5 of that Act), in subsection (2)(p) after “61 to” insert “66A, 66B(2) and (3),”.”Member’s explanatory statement
This amendment adds a reference to certain of the new offences of sharing an intimate photograph or film to section 65A(2) of the Police and Criminal Evidence Act 1984 (meaning of “qualifying offence” for the purposes of Part 5 of that Act).

15: Schedule 14, page 240, line 25, at end insert—
“13A_ In section 6 of the Sexual Offences (Amendment) Act 1992 (interpretation), after subsection (2A) insert—“(2B) For the purposes of this Act, where it is alleged or there is an accusation that an offence under section 66B(4) of the Sexual Offences Act 2003 (threatening to share intimate photograph or film) has been committed, the person against whom the offence is alleged to have been committed is to be regarded as— (a) the person to whom the threat mentioned in that subsection is alleged to have been made, and(b) (if different) the person shown, or who appears to be shown, in an intimate state in the photograph or film that is the subject of the threat.””Member’s explanatory statement
This amendment has the effect of applying the provisions of the Sexual Offences (Amendment) Act 1992 to the person shown or who appears to be shown in an intimate photograph or film where a threat to share the photograph or film is made to a person other than that person.

16: Schedule 14, page 240, line 27, at end insert—
“(1A) In section 78 (meaning of “sexual”), after “15A” insert “, 66B to 66D ”.”Member’s explanatory statement
This amendment provides that the existing definition of “sexual” in section 78 of the Sexual Offences Act 2003 does not apply to the new offences of sharing and threatening to share an intimate photograph or film (on account of a separate definition applying to those offences).

17: Schedule 14, page 240, line 29, after “66A” insert “, 66B(2) and (3)”
Member’s explanatory statement
This amendment adds a reference to certain of the new offences of sharing an intimate photograph or film to section 136A(3A) of the Sexual Offences Act 2003 (offences specified as child sex offences for the purposes of Part 2A of that Act when committed against a person under 18).

18: Schedule 14, page 241, line 4, at end insert—
“33B_ An offence under section 66B(3) of this Act (sharing intimate photograph or film for purpose of obtaining sexual gratification) if—(a) where the offender was under 18, the offender is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;(b) in any other case—(i) the victim was under 18, or(ii) the offender, in respect of the offence or finding, is or has been—(a) sentenced to a term of imprisonment,(b) detained in a hospital, or(c) made the subject of a community sentence of at least 12 months.””Member’s explanatory statement
This amendment adds a reference to the new offence of sharing an intimate photograph or film for the purpose of obtaining sexual gratification to Schedule 3 to the Sexual Offences Act 2003 (offences to which certain provisions of that Act apply).

19: Schedule 14, page 241, line 10, at end insert—
“149B_ An offence under section 66B(2) or (3) of that Act (sharing intimate photograph or film with intent to cause alarm, distress or humiliation or for purpose of obtaining sexual gratification).””Member’s explanatory statement
This amendment adds a reference to certain of the new offences of sharing an intimate photograph or film to Schedule 15 to the Criminal Justice Act 2003 (specified sexual offences for the purposes of section 325 of that Act).

20: Schedule 14, page 241, line 12, after “66A” insert “, 66B(2) or (3)”
Member’s explanatory statement
This amendment adds a reference to certain of the new offences of sharing an intimate photograph or film to Schedule 34A to the Criminal Justice Act 2003 (child sex offences for the purposes of section 327A of that Act).

21: Schedule 14, page 241, line 12, at end insert “, and
(b) after “exposure” insert “, sending etc photograph or film of genitals, sharing intimate photograph or film with intent to cause alarm, distress or humiliation or for purpose of obtaining sexual gratification”.”Member’s explanatory statement
This amendment is consequential on the other amendment to Schedule 34A to the Criminal Justice Act 2003 made in my name.

22: Schedule 14, page 241, line 17, after “66A” insert “, 66B(2) and (3)”
Member’s explanatory statement
This amendment adds a reference to certain of the new offences of sharing an intimate photograph or film to section 116 of the Anti-social Behaviour, Crime and Policing Act 2014 (conduct constituting offence amounting to “child sexual exploitation” when committed against a person under 18 for the purposes of that section).

23: Schedule 14, page 241, line 17, at end insert “, and
(b) after “exposure” insert “, sending etc photograph or film of genitals, sharing intimate photograph or film with intent to cause alarm, distress or humiliation or for purpose of obtaining sexual gratification”.”Member’s explanatory statement
This amendment is consequential on the other amendment to section 116 of the Anti-social Behaviour, Crime and Policing Act 2014 made in my name.

24: Schedule 14, page 241, line 22, at end insert—
“section 66B(2) (sharing intimate photograph or film with intent to cause alarm, distress or humiliation)section 66B(3) (sharing intimate photograph or film for purpose of obtaining sexual gratification)”.”Member’s explanatory statement
This amendment adds a reference to certain of the new offences of sharing an intimate photograph or film to paragraph 33 of Schedule 4 to the Modern Slavery Act 2015 (offences to which the defence in section 45 does not apply).

25: Schedule 14, page 241, line 27, at end insert—
“(axb) section 66B(2) (sharing intimate photograph or film with intent to cause alarm, distress or humiliation);(axc) section 66B(3) (sharing intimate photograph or film for purpose of obtaining sexual gratification);”.”Member’s explanatory statement
This amendment adds a reference to certain of the new offences of sharing an intimate photograph or film to Part 2 of Schedule 18 to the Sentencing Act 2020 (specified sexual offences for the purposes of section 306 of that Act).

26: Schedule 14, page 241, line 32, at end insert—
“PART 4AMENDMENTS CONSEQUENTIAL ON SECTION (REPEALS IN CONNECTION WITH OFFENCES UNDER SECTION (SHARING OR THREATENING TO SHARE INTIMATE PHOTOGRAPH OR FILM))Criminal Justice and Courts Act 2015
20_(1) The Criminal Justice and Courts Act 2015 is amended as follows.(2) In section 96 (extent), in subsection (6), omit paragraphs (c) and (g).(3) Omit Schedule 8 (disclosing or threatening to disclose private sexual photographs or films: providers of information society services).Domestic Abuse Act 2021
21_(1) The Domestic Abuse Act 2021 is amended as follows. (2) Omit section 69 (threats to disclose private sexual photographs and films with intent to cause distress) and the italic heading before it.(3) In section 85 (power to make consequential provision), in subsection (1)(b), omit “69,”.(4) In section 86 (power to make transitional or saving provision), in subsection (1)(b), omit “69,”.Overseas Operations (Service Personnel and Veterans) Act 2021
22_ In Part 1 of Schedule 1 to the Overseas Operations (Service Personnel and Veterans) Act 2021 (“excluded offences” for the purposes of section 6 of that Act), omit paragraph 11.Criminal Justice (Electronic Commerce) (Amendment) (EU Exit) Regulations 2021 (S.I. 2021/835)
23_ In the Criminal Justice (Electronic Commerce) (Amendment) (EU Exit) Regulations 2021, omit regulation 8 (amendment of the Criminal Justice and Courts Act 2015).”Member’s explanatory statement
This amendment inserts a new Part into Schedule 14 consequential on the new Clause in my name repealing sections 33 to 35 of the Criminal Justice and Courts Act 2015.

Amendments 12 to 26 agreed.

14:17

Consideration on Report adjourned until not before 2.48 pm.

Violence in the West Bank

Thursday 6th July 2023 Lords Chamber

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Tuesday 4 July.

“The accelerating cycle of violence in the West Bank risks another round of bloodshed and the Government are doing everything possible to urge the de-escalation of the situation. The latest operation by the Israel Defense Forces in the Jenin refugee camp in the northern West Bank on Monday is the latest episode in a conflict that has become more worrying as the year has progressed. While the UK firmly supports Israel’s right to defend itself and its citizens against terrorism, we urge the Israel Defense Forces to demonstrate restraint, adhere to the principles of international humanitarian law and prioritise the protection of civilians.

While the security situation today remains fragile, the UK welcomed Israeli and Palestinian engagement at meetings in Aqaba on 26 February and Sharm el-Sheikh on 19 March. We are clear-eyed that those meetings have not been a silver bullet, but they are an open, meaningful channel of communication between senior Israelis and Palestinians. At times of strife, this is important in assisting de-escalation and reducing violence. We have consistently engaged with both the Israelis and the Palestinians to urge them to de-escalate tensions and to support efforts towards renewed negotiations.

My right honourable friend the Foreign Secretary spoke to the Israeli Foreign Minister, Eli Cohen, on 26 June—when they discussed the security situation in the West Bank—having spoken to the Palestinian Prime Minister, Mohammad Shtayyeh, on 16 June. I can confirm that the Minister for the Middle East, Lord Ahmad, will be discussing the evolving situation with the Israeli ambassador later today, further to discussions in recent days. He also spoke to the Palestinian Foreign Minister, Riyad al-Maliki, on 5 May. Our ambassadors in Tel Aviv and Jerusalem speak regularly to both the Israeli Government and the Palestinian Authority to urge de-escalation and to make clear our expectation that all sides avoid unilateral steps that move the parties further away from dialogue.

Finally, I draw the House’s attention to the statement that the Foreign Secretary made jointly with his Canadian and Australian counterparts last Friday. The UK opposes Israel’s announced proposal to expand settlements across the West Bank, and we ask Israel to halt and reverse its policy of supporting settlement expansion. Settlements are not the only obstacle to peace, but they are an important one, and our concerns about these recent steps are clear. The lives lost in this wider conflict are tragic. There is an urgent need for all parties to avoid further escalation in the West Bank and Gaza, now and in the days ahead.”

14:18

[Lord Collins of Highbury (Lab)]

My Lords, we must all be concerned about the events in the camp in Jenin. Last Whitsun, I visited the West Bank, touring refugee camps and following a trail set by my noble friend—I mean, the noble Lord the Minister—who, I believe, did the same trip a couple of weeks before me. I witnessed at first hand the conditions in some of the camps and the closeness of the communities. I also witnessed settler violence against Palestinian villagers. The situation was pretty dire. I recognise that Israel has the right to defend itself against militant groups, but that right must be exercised proportionately and in line with international law.

In the other place, when this Question was considered, my honourable friend Wayne David asked a straightforward question for which he did not get an answer. I therefore repeat it this afternoon: what of substance are the Minister and the Government doing to bring this immediate conflict to an end and to lay the foundations of a two-state solution, which we all seek?

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon)]

My Lords, I thank the noble Lord. He almost called me his noble friend. Perhaps that is a reflection of the time we are spending together on various aspects of the House’s business today. I share his concern, and we have all been again shocked by the cycle of violence that continues to occur across the West Bank in particular but also in Gaza. I share the same sentiments and principles that the noble Lord has articulated in relation to Israel’s security concerns; however, as it seeks to address those particular concerns, it should do so by respecting and minimising civilian casualties, demonstrating restraint and adherence to principles of international humanitarian law, and ensuring that civilians are protected.

On the steps that the United Kingdom is taking, as the Minister responsible for the Middle East, I can assure the noble Lord that, first and foremost, we are engaging directly with both sides. Over the past 48 hours or so I have spoken to the Israeli representative to the United Kingdom at length and to the Israeli chargé d’affaires. My right honourable friend the Foreign Secretary has spoken to Foreign Minister Cohen of Israel as well as the Prime Minister of the Palestinian Authority, Mohammad Shtayyeh, again emphasising: first, the importance of de-escalation; secondly, the importance of ensuring a minimisation of any further violence that may take place; and, thirdly, the need to ensure, particularly on the Israeli side, now the Jenin operation has ended, that full access is given to allow full medical attention for those injured during the crisis. Tragically, people have died on both sides. There has also been a further attack in Tel Aviv with a car ramming. It shows the challenge that we all face regarding the ever-growing circle of violence. I agree with the noble Lord and assure him of my best offices in addressing the issue of the immediate cessation of violence. It should be the foundation for direct negotiations between Israel and the Palestinians.

[Baroness Janke (LD)]

My Lords, I, too, have visited the Occupied Territories in the West Bank in recent times and echo the concerns already raised. I pay particular tribute to the NGOs and voluntary organisations within the Occupied Territories that are giving support in the current circumstances. I am particularly concerned, again, about settler violence and increasing attacks, and the incitement from the extreme Government of Israel for settlers to erode and take away the rights of the resident population there. I am concerned to hear from Medical Aid for Palestinians that medical aid is proving inaccessible for many civilians under the violent conditions within the West Bank and that they are prevented from having access to medical support. I should like to hear the Government say something about that. The UK Government now have the presidency of the UN Security Council. Will they take a leadership role to ensure the protection of human rights for the Palestinian people in the illegally Occupied Territories of the West Bank?

[Lord Ahmad of Wimbledon (Con)]

My Lords, on the noble Baroness’s first point, I have directly met some of the NGOs, including Medical Aid for Palestinians, in my office in the last 48 hours and we discussed specific measures. Engagement with NGOs is a key part of my priorities. We will be convening a session tomorrow on this issue at the UN Security Council. It is a closed session but will be followed later in our presidency with a more extensive debate on the Middle East peace process. I share all the relevant concerns expressed by the noble Baroness about the need for negotiation and for peace to prevail.

[Viscount Hailsham (Con)]

Will my noble friend say to his counterparts in the Israeli Government that those of us who are strong supporters of the state of Israel are none the less deeply concerned by the building of settlements outside the internationally recognised frontiers of Israel, by the absence of any obvious movement on a peace settlement or agreement with the Palestinians, and by the propensity to use massive force? Does he agree that this is not a stable situation?

[Lord Ahmad of Wimbledon (Con)]

I totally agree with my noble friend. For the record, again, the United Kingdom’s position on the settlements is clear: they are an impediment to peace. As my noble friend illustrated, those settlements are of course illegal under international law.

[Lord Austin of Dudley (Non-Afl)]

My Lords, Israel was forced to act because the Palestinian Authority lost control of Jenin and Islamic jihadists and Hamas terrorists then used the city to mount a wave of terror attacks on families and children in Israel. In this operation, the IDF destroyed explosives labs, seized hundreds of guns and bombs and arrested 120 terrorists. It did all that in a densely populated area while ensuring that there were no civilian casualties at all—not one. Does the Minister agree that this was a justified, proportionate, successful operation to tackle terrorism?

[Lord Ahmad of Wimbledon (Con)]

My Lords, as I have already indicated, as both a friend and a partner to Israel, the UK—indeed, I myself—reiterated those exact points to the chargé during our conversation, as did my right honourable friend the Foreign Secretary. However, as we see the cycle of violence occur yet again, is it equally important that the core issue is addressed, because there can be no peace for any Israeli or Palestinian until we see a final settlement on this long-standing issue.

[Lord Hannay of Chiswick (CB)]

My Lords, does the Minister agree that trying to allocate blame in the circumstances of the events of the past few days is probably not very worth while? Surely it is becoming clearer that the total absence of any discussion of ways to dial down the escalation, which is being provoked by extremists on both sides, is part of the problem. What do we in the Security Council plan to do to see whether some discussion—direct or indirect—of the way ahead could now take place, perhaps adding a small element of chance that the escalation will not continue into a new intifada?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I agree with the noble Lord about the role that the UK has to play. We are convening appropriate meetings. Ultimately, I agree that what we need—indeed, the only way to stop this cycle of violence—is de-escalation now and a pathway to peace.

[Lord Polak (Con)]

My Lords, I refer the House to my entry in the register of interests. There is a clear pattern of behaviour, which—whether it is drones targeting Ukrainian citizens, the support for Palestinian Islamic Jihad in Jenin, or Iran via the IRGC—continues to destabilise across the globe. I welcome the Statement on Iran today, but my noble friend knows it is not enough for me: the IRGC must be proscribed as a terrorist organisation.

Earlier today, my noble friend said at the Dispatch Box—and repeated just now—that every Government’s first duty is to defend their people. Does he therefore agree that we must stand shoulder to shoulder with our friend and ally Israel in removing Iranian-backed arms and explosives before they are used to murder innocent Israeli citizens?

[Lord Ahmad of Wimbledon (Con)]

My Lords, we will be discussing the Statement when it is repeated later, but I can say once again that we have been very clear in our statements on Israel’s destabilising influence in the wider region. I reiterate on the record that the first responsibility of any responsible Government is the security of their citizens. As I said, while we appreciate, respect and have defended Israel’s right to self-defence, what is equally needed—as I am sure my noble friend agrees—is security, stabilisation and, ultimately, a pathway of sustainable peace for both the Israelis and the Palestinians.

14:28

Sitting suspended.

Online Safety Bill

Report stage
Thursday 6th July 2023 Lords Chamber

Report (1st Day) (Continued)

14:48

Schedule 1: Exempt user-to-user and search services

Amendment 27

Moved by

[Lord Parkinson of Whitley Bay]

27: Schedule 1, page 185, line 11, leave out from “provider” to end of line 13 and insert “, including where the publication of the content is effected or controlled by means of—
(a) software or an automated tool or algorithm applied by the provider or by a person acting on behalf of the provider, or(b) an automated tool or algorithm made available on the service by the provider or by a person acting on behalf of the provider.”Member’s explanatory statement
This amendment is about what counts as “provider content” for the purposes of the exemption in paragraph 4 of Schedule 1 of the Bill (which provides that limited functionality services are exempt). Words are added to expressly cover the case where an automated tool or algorithm is made available on the service by a provider, such as a generative AI bot.

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

My Lords, the Government are committed to protecting children against accessing pornography online. As technology evolves, it is important that the regulatory framework introduced by the Bill keeps pace with emerging risks to children and exposure to pornography in new forms, such as generative artificial intelligence.

Part 5 of the Bill has been designed to be future-proof, and we assess that it would already capture AI-generated pornography. Our Amendments 206 and 209 will put beyond doubt that content is “provider pornographic content” where it is published or displayed on a Part 5 service by means of an automated tool or algorithm, such as a generative AI bot, made available on the service by a provider. Amendments 285 and 293 make clear that the definition of an automated tool includes a bot. Amendment 276 clarifies the definition of a provider of a Part 5 service, to make clear that a person who controls an AI bot that generates pornography can be regarded as the provider of a service.

Overall, our amendments provide important certainty for users, providers and Ofcom on the services and content in scope of the Part 5 duties. This will ensure that the new, robust duties for Part 5 providers to use age verification or age estimation to prevent children accessing provider pornographic content will also extend to AI-generated pornography. I beg to move.

[Baroness Harding of Winscombe (Con)]

My Lords, the noble Baroness, Lady Kidron, has unfortunately been briefly detained. If you are surprised to see me standing up, it is because I am picking up for her. I start by welcoming these amendments. I am grateful for the reaction to the thought-provoking debate that we had in Committee. I would like to ask a couple of questions just to probe the impact around the edges.

Amendment 27 looks as if it implies that purely content-generating machine-learning or AI bots could be excluded from the scope of the Bill, rather than included, which is the opposite of what we were hoping to achieve. That may be us failing to understand the detail of this large body of different amendments, but I would welcome my noble friend the Minister’s response to make sure that in Amendment 27 we are not excluding harm that could be generated by some form of AI or machine-learning instrument.

Maybe I can give my noble friend the Minister an example of what we are worried about. This is a recent scenario that noble Lords may have seen in the news, of a 15 year-old who asked, “How do I have sex with a 30 year-old?”. The answer was given in forensic detail, with no reference to the fact that it would in fact be statutory rape. Would the regulated service, or the owner of the regulated service that generated that answer, be included or excluded as a result of Amendment 27? That may be my misunderstanding.

This group is on AI-generated pornography. My friend, the noble Baroness, Lady Kidron, and I are both very concerned that it is not just about pornography, and that we should make sure that AI is included in the Bill. Specifically, many of us with teenage children will now be learning how to navigate the Snap AI bot. Would harm generated by that bot be captured in these amendments, or is it only content that is entirely pornographic? I hope that my noble friend the Minister can clarify both those points, then we will be able to support all these amendments.

[Lord Allan of Hallam (LD)]

My Lords, I rise briefly to welcome the fact that there is a series of amendments here where “bot” is replaced by

“bot or other automated tool”.

I point out that there is often a lot of confusion about what a bot is or is not. It is something that was largely coined in the context of a particular service—Twitter—where we understand that there are Twitter bots: accounts that have been created to pump out lots of tweets. In other contexts, on other services, there is similar behaviour but the mechanism is different. It seems to me that the word “bot” may turn out to be one of those things that was common and popular at the end of the 2010s and in the early 2020s, but in five years we will not be using it at all. It will have served its time, it will have expired and we will be using other language to describe what it is that we want to capture: a human being has created some kind of automated tool that will be very context dependent, depending on the nature of the service, and they are pumping out material. It is very clear that we want to make sure that such behaviour is in scope and that the person cannot hide behind the fact that it was an automated tool, because we are interested in the mens rea of the person sitting behind the tool.

I recognise that the Government have been very wise in making sure that whenever we refer to a bot we are adding that “automated tool” language, which will make the Bill inherently much more future-proof.

[Lord Clement-Jones (LD)]

My Lords, I just want to elucidate whether the Minister has any kind of brief on my Amendment 152A. I suspect that he does not; it is not even grouped—it is so recent that it is actually not on today’s groupings list. However, just so people know what will be coming down the track, I thought it would be a good idea at this stage to say that it is very much about exactly the question that the noble Baroness, Lady Harding, was asking. It is about the interaction between a provider environment and a user, with the provider environment being an automated bot—or “tool”, as my noble friend may prefer.

It seems to me that we have an issue here. I absolutely understand what the Minister has done, and I very much support Amendment 153, which makes it clear that user-generated content can include bots. But this is not so much about a human user using a bot or instigating a bot; it is much more about a human user encountering content that is generated in an automated way by a provider, and then the user interacting with that in a metaverse-type environment. Clearly, the Government are apprised of that with regard to Part 5, but there could be a problem as regards Part 3. This is an environment that the provider creates, but it is interacted with by a user as if that environment were another user.

I shall not elaborate or make the speech that I was going to make, because that would be unfair to the Minister, who needs to get his own speaking note on this matter. But I give him due warning that I am going to degroup and raise this later.

[The Lord Bishop of Oxford]

My Lords, I warmly welcome this group of amendments. I am very grateful to the Government for a number of amendments that they are bringing forward at this stage. I want to support this group of amendments, which are clearly all about navigating forward and future-proofing the Bill in the context of the very rapid development of artificial intelligence and other technologies. In responding to this group of amendments, will the Minister say whether he is now content that the Bill is sufficiently future-proofed, given the hugely rapid development of technology, and whether he believes that Ofcom now has sufficient powers to risk assess for the future and respond, supposing that there were further parallel developments in generative AI such as we have seen over the past year?

[Lord Stevenson of Balmacara (Lab)]

My Lords, this is a quick-fire debate on matters where most of us probably cannot even understand the words, let alone the purpose and particularity of the amendments. I want to raise points already raised by others: it seems that the Government’s intention is to ensure that the Bill is future-proofed. Why then are they restricting this group to Part 5 only? It follows that, since Part 5 is about pornography, it has to be about only pornography—but it is rather odd that we are not looking at the wider context under which harm may occur, involving things other than simply pornography. While the Bill may well be currently able to deal with the issues that are raised in Part 3 services, does it not need to be extended to that as well? I shall leave it at that. The other services that we have are probably unlikely to raise the sorts of issues of concern that are raised by this group. None the less, it is a point that we need reassurance on.

15:00

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this has been a short but important debate and I am grateful to noble Lords for their broad support for the amendments here and for their questions. These amendments will ensure that services on which providers control a generative tool, such as a generative AI bot, are in scope of Part 5 of the Bill. This will ensure that children are protected from any AI-generated pornographic content published or displayed by provider-controlled generative bots. These changes will not affect the status of any non-pornographic AI-generated content, or AI-generated content shared by users.

We are making a minor change to definitions in Part 3 to ensure that comments or reviews on content generated by a provider-controlled artificial intelligence source are not regulated as user-generated content. This is consistent with how the Bill treats comments and reviews on other provider content. These amendments do not have any broader impact on the treatment of bots by Part 3 of the Bill’s regime beyond the issue of comments and reviews. The basis on which a bot will be treated as a user, for example, remains unchanged.

I am grateful to the noble Lord, Lord Clement-Jones, for degrouping his Amendment 152A so that I can come back more fully on it in a later group and I am grateful for the way he spoke about it in advance. I am grateful too for my noble friend Lady Harding’s question. These amendments will ensure that providers which control a generative tool on a service, such as a generative AI bot, are in scope of Part 5 of the Bill. A text-only generative AI bot would not be in scope of Part 5. It is important that we focus on areas which pose the greatest risk of harm to children. There is an exemption in Part 5 for text-based provider pornographic content because of the limited risks posed by published pornographic content. This is consistent with the approach of Part 3 of the Digital Economy Act 2017 and its provisions to protect children from commercial online pornography, which did not include text-based content in scope.

The right reverend Prelate the Bishop of Oxford is right to ask whether we think this is enough. These changes certainly help. The way that the Bill is written in a technology-neutral way will help us to future proof it but, as we have heard throughout the passage of the Bill, we all know that this area of work will need constant examination and scrutiny. That is why the Bill is subject the post-Royal Assent review and scrutiny that it is and why we are grateful for the anticipation noble Lords and Members of Parliament in the other place have already given to ensuring that it delivers on what we want to see. I believe these amendments, which put out of doubt important provisions relating to generative AI, are a helpful addition and I beg to move.

Amendment 27 agreed.

Amendment 28

Moved by

[Lord Allan of Hallam]

28: Schedule 1, page 185, line 23, at end insert—
“Public information services
5A A user-to-user service is exempt if its primary purpose is the creation of public information resources and it has the following characteristics—(a) user-to-user functions are limited to those necessary for the creation and maintenance of a public information resource,(b) OFCOM has determined that there is minimal risk of users sharing harmful content on the service, and(c) it is non-commercial.”Member’s explanatory statement
This amendment would allow OFCOM to exempt services like Wikipedia from regulation where it deems them to be low risk.

[Lord Allan of Hallam (LD)]

My Lords, as we enter the final stages of consideration of this Bill, it is a good time to focus a little more on what is likely to happen once it becomes law, and my Amendment 28 is very much in that context. We now have a very good idea of what the full set of obligations that in-scope services will have to comply with will look like, even if the detailed guidance is still to come.

With this amendment I want to return to the really important question that I do not believe we answered satisfactorily when we debated it in Committee. That is that there is a material risk that, without further amendment or clarification, Wikipedia and other similar services may feel that they can no longer operate in the United Kingdom.

Wikipedia has already featured prominently in our debates, but there are other major services that might find themselves in a similar position. As I was discussing the definitions in the Bill with my children yesterday—this may seem an unusual dinner conversation with teenagers, but I find mine to be a very useful sounding board—they flagged that OpenStreetMap, to which we all contribute, also seems to be in the scope of how we have defined user-to-user services. I shall start by asking some specific questions so that the Minister has time to find the answers in his briefing or have them magically delivered to him before summing up: I shall ask the questions and then go on to make the argument.

First, is it the Government’s view that Wikipedia and OpenStreetMap fall within the definition of user-to-user services as defined in Clause 2 and the content definition in Clause 211? We need to put all these pieces together to understand the scope. I have chosen these services because each is used by millions of people in the UK and their functionality is very well known, so I trust that the Government had them in mind when they were drafting the legislation, as well as the more obvious services such as Instagram, Facebook et cetera.

Secondly, can the Minister confirm whether any of the existing exemptions in the Bill would apply to Wikipedia and OpenStreetMap such that they would not have to comply with the obligations of a category 1 or 2B user-to-user service?

Thirdly, does the Minister believe that the Bill as drafted allows Ofcom to use its discretion in any other way to exempt Wikipedia and OpenStreetMap, for example through the categorisation regulations in Schedule 11? As a spoiler alert, I expect the answers to be “Yes”, “No” and “Maybe”, but it is really important that we have the definitive government response on the record. My amendment would seek to turn that to “Yes”, “Yes” and therefore the third would be unnecessary because we would have created an exemption.

The reason we need to do this is not in any way to detract from the regulation or undermine its intent but to avoid facing the loss of important services at some future date because of situations we could have avoided. This is not hyperbole or a threat on the part of the services; it is a natural consequence if we impose legal requirements on a responsible organisation that wants to comply with the law but knows it cannot meet them. I know it is not an intended outcome of the Bill that we should drive these services out, but it is certainly one intended outcome that we want other services that cannot meet their duties of care to exit the UK market rather than continue to operate here in defiance of the law and the regulator.

We should remind ourselves that at some point, likely to be towards the end of 2024, letters will start to arrive on the virtual doormats of all the services we have defined as being in scope—these 25,000 services—and their senior management will have a choice. I fully expect that the Metas, the Googles and all such providers will say, “Fine, we will comply. Ofcom has told us what we need to do, and we will do it”. There will be another bunch of services that will say, “Ofcom, who are they? I don’t care”, and the letter will go in the bin. We have a whole series of measures in the Bill by which we will start to make life difficult for them: we will disrupt their businesses and seek to prosecute them and we will shut them out of the market.

However, there is a third category, which is the one I am worried about in this amendment, who will say, “We want to comply, we are responsible, but as senior managers of this organisation”, or as directors of a non-profit foundation, “we cannot accept the risk of non-compliance and we do not have the resources to comply. There is no way that we can build an appeals mechanism, user reporter functions and all these things we never thought we would need to have”. If you are Wikipedia or OpenStreetMap, you do not need to have that infrastructure, yet as I read the Bill, if they are in scope and there is no exemption, then they are going to be required to build all that additional infrastructure.

The Bill already recognises that there are certain classes of services where it would be inappropriate to apply this new regulatory regime, and it describes these in Schedule 1, which I am seeking to amend. My amendment just seeks to add a further class of exempted service and it does this quite carefully so that we would exclude only services that I believe most of us in this House would agree should not be in scope. There are three tests that would be applied.

The first is a limited functionality test—we already have something similar in Schedule 1—so that the user-to-user functions are only those that relate to the production of what I would call a public information resource. In other words, users engage with one another to debate a Wikipedia entry or a particular entry on a map on OpenStreetMap. So, there is limited user-to-user functionality all about this public interest resource. They are not user-to-user services in the classic sense of social media; they are a particular kind of collective endeavour. These are much closer to newspaper publishers, which we have explicitly excluded from the Bill. It is much more like a newspaper; it just happens to be created by users collectively, out of good will, rather than by paid professional journalists. They are very close to that definition, but if you read Schedule 1, I do not think the definition of “provider content” in paragraph 4(2) includes at the moment these collective-user endeavours, so they do not currently have the exemption.

I have also proposed that Ofcom would carry out a harm test to avoid the situation where someone argues that their services are a public information resource, while in practice using it to distribute harmful material. That would be a rare case, but noble Lords can conceive of it happening. Ofcom would have the ability to say that it recognises that Wikipedia does not carry harmful content in any meaningful way, but it would also have the right not to grant the exemption to service B that says it is a new Wikipedia but carries harmful content.

Thirdly, I have suggested that this is limited to non-commercial services. There is an argument for saying any public information resource should benefit, and that may be more in line with the amendment proposed by the noble Lord, Lord Moylan, where it is defined in terms of being encyclopaedic or the nature of the service. I recognise that I have put in “non-commercial” as belt and braces because there is a rationale for saying that, while we do not really want an encyclopaedic resource to be in the 2B service if it has got user-to-user functions, if it is commercial, we could reasonably expect it to find some way to comply. It is different when it is entirely non-commercial and volunteer-led, not least because the Wikimedia Foundation, for example, would struggle to justify spending the money that it has collected from donors on compliance costs with the UK regime, whereas a commercial company could increase its resources from commercial customers to do that.

I hope this is a helpful start to a debate in which we will also consider Amendment 29, which has similar goals. I will close by asking the Minister some additional questions. I have asked him some very specific ones to which I hope he can provide answers, but first I ask: does he acknowledges the genuine risk that services like Wikipedia and OpenStreetMap could find themselves in a position where they have obligations under the Bill that they simply cannot comply with? It is not that they are unwilling, but there is no way for them to do all this structurally.

Secondly, I hope the Minister would agree that it is not in the public interest for Ofcom to spend significant time and effort on the oversight of services like these; rather, it should spend its time and effort on services, such as social media services, that we believe to be creating harms and are the central focus of the Bill.

Thirdly, will the Minister accept that there is something very uncomfortable about a government regulator interfering with the running of a neutral public resource like Wikipedia, when there is so much benefit from it and little or no demonstrative harm? It is much closer to the model that exists for a newspaper. We have debated endlessly in this House—and I am sure we will come back to it—that there is, rightly, considerable reluctance to have regulators going too far and creating this relationship with neutral public information goods. Wikipedia falls into that category, as does OpenStreetMap and others, and there would be fundamental in principle challenges around that.

I hope the Government will agree that we should be taking steps to make sure we are not inadvertently creating a situation where, in one or two years’ time, Ofcom will come back to us saying that it wrote to Wikipedia, because the law told it to do so, and told Wikipedia all the things that it had to do; Wikipedia took it to its senior management and then came back saying that it is shutting shop in the UK. Because it is sensible, Ofcom would come back and say that it did not want that and ask to change the law to give it the power to grant an exemption. If such things deserve an exemption, let us make it clear they should have it now, rather than lead ourselves down this path where we end up effectively creating churn and uncertainty around what is an extraordinarily valuable public resource. I beg to move.

[Lord Moylan (Con)]

My Lords, Amendments 29 and 30 stand in my name. I fully appreciated, as I prepared my thoughts ahead of this short speech, that a large part of what I was going to say might be rendered redundant by the noble Lord, Lord Allan of Hallam. I have not had a discussion with him about this group at all, but it is clear that his amendment is rather different from mine. Although it addresses the same problem, we are coming at it slightly differently. I actually support his amendment, and if the Government were to adopt it I think the situation would be greatly improved. I do prefer my own, and I think he put his finger on why to some extent: mine is a little broader. His relates specifically to public information, whereas mine relates more to what can be described as the public good. So mine can be broader than information services, and I have not limited it to non-commercial operations, although I fully appreciate that quite a lot of the services we are discussing are, in practice, non-commercial. As I say, if his amendment were to pass, I would be relatively satisfied, but I have a moderate preference for my own.

15:15

Wikipedia has been mentioned frequently, and the Government cannot say that they have not had notice of this problem, because it was frequently mentioned in Committee. The fact that the Government have not come forward with any suggestions or amendments to address this at all—I can summarise what I think is their response in a moment—is truly remarkable. There has been an open letter signed recently drawing attention to this problem, which includes not only OpenStreetMap, which the noble Lord referred to, but the Heritage Alliance; INSPIRE, which is a physics research platform operated by CERN; the Wellcome Sanger Institute; the Chartered Institute of Library and Information Professionals in Scotland; and Liberty. They are all concerned about how they are going to operate. They will be caught. Curiously, the Taliban will not be caught, because the Taliban will benefit from the exemption that exists in paragraph 9(1)(c) of Schedule 1 for a “foreign sovereign power”. So the Taliban will not be in Ofcom’s scope at all, but all these organisations doing perfectly decent work are going to be chased down by our regulator.

The Minister has said from the Dispatch Box that he does not think that Wikipedia would be in scope. But when pressed on this, both at the Dispatch Box and in private conversation—for which I am grateful—he said that that was his opinion but it was going to be decided by Ofcom; his assurance at the Dispatch Box, in other words, carries no weight, because the decision is to be made by Ofcom. When I say that we can still pass these amendments, he says we cannot tell Ofcom what to do because it is independent. But the entire Bill is telling Ofcom what to do, and of course Parliament can tell it that services of this character are not in scope. The Bill specifies what services are and are not in scope. So I think it is pretty much a nonsense answer.

Although these organisations, in many cases, are non-profits, that does not mean they are not businesses, and businesses have to plan, invest and think about what they are going to do next. They are hanging there, waiting and absolutely uncertain until Ofcom make a regulatory decision of an existential character, because we in Parliament cannot possibly take a stance on it and the Government cannot have a view. I know that businesses are constantly subject to the possibility of regulatory change in the future, but I do not know of any regulatory changes that, in the normal course of events, threaten the entire business model. They might threaten how it is you plan to make a particular product or what insulation you might have to put in a house you are building; they do not put you entirely out of business, which is what this threatens to do. So I think there is a very strong argument indeed for an amendment that takes these services out of scope, not only because it is a nonsense not to but because it really does threaten investment, planning, jobs and the things that go with that.

My Amendments 29 and 30 should be taken together. Amendment 29 creates an exemption, the terms of which are stated very plainly so I do not need to read them out. Amendment 30 creates what is being referred to as a “rescue clause”; in other words, it says that Ofcom has the discretion to withdraw the exemption if it sees that it is in the public good to do so. If any of these services were to start going rogue and behaving in a way that was contrary to the public interest, or objectionable in terms of how the Bill operates and is intended to operate, Ofcom would be able to intervene and say, “That exemption no longer applies; if you get the exemption under Amendment 29, we can take it away under Amendment 30”. This is not unprecedented. This rescue clause has been almost cut and pasted from the Gambling Act. This process of creating an exemption which can be withdrawn is not unprecedented and has great merit. This is why I recommend Amendments 29 and 30 while not wanting to be exclusive to Amendment 28.

This is not going away. Germany exempts non-profit organisations. France has recently passed laws with similar scope to ours and has exempted those entities which operate in the public interest. There is nothing strange about doing what I and the noble Lord, Lord Allan, want to do. This will not go away, because the consequences could be very severe. It is not a question of whether Wikipedia will close. Wikipedia in the English language will probably survive all of this. It has a lot of people supporting it and a lot of volunteers working for it. However, what of many of the minor languages? Wait until the Government find out whether Welsh Wikipedia, the largest Welsh-language website in the world, will survive and the consequences. What will the Government say when they start getting letters? “Oh, it’s nothing to do with us, we have no answer for that, it’s all a matter for Ofcom”. This is a completely unsustainable position. It is indefensible for us in Parliament to let it pass and it is completely unsustainable for the Government. Some action must be taken.

[Lord Russell of Liverpool (CB)]

My Lords, I will speak to my Amendments 281 to 281B. I thank the noble Baronesses, Lady Harding and Lady Kidron, and the noble Lord, Lord Knight, for adding their names to them. I will deal first with Amendments 281 and 281B, then move to 281A.

On Amendments 281 and 281B, the Minister will recall that in Committee we had a discussion around how functionality is defined in the Bill and that a great deal of the child risk assessments and safety duties must have regard to functionality, as defined in Clause 208. However, as it is currently written, this clause appears to separate out functionalities of user-to-user services and search services. These two amendments are designed to adjust that slightly, to future-proof the Bill.

Why is this necessary? First, it reflects that it is likely that in the future, many of the functionalities that we currently see on user-to-user services will become present on search services and possibly vice versa. Therefore, we need to try to take account of how the world is likely to move. Secondly, this is already happening, and it poses a risk to children. Some research done by the 5Rights Foundation has found that “predictive search”, counted in the Bill as a search service functionality, is present on social media websites, leading one child user using a search bar to be presented in nanoseconds with prompts associated with eating disorders. In Committee, the Minister noted that the functionalities listed in this clause are non-exhaustive. At the very least, it would be helpful to clarify this in the Bill language.

Amendment 281A would add specific functionalities which we know are addictive or harmful to children and put them in the Bill. We have a great deal of research and evidence which demonstrates how persuasive certain design strategies are with children. These are features which are solely designed to keep users on the platform, at any cost, as much as possible and for as long as possible. The more that children are on the platform, the more harm they are likely to suffer. Given that the purpose of this Bill is for services to be safe by design, as set out usefully in Amendment 1, please can we make sure that where we know—and we do know—that risk exists, we are doing our utmost to tackle it?

The features that are listed in this amendment are known as “dark patterns”—and they are known as “dark patterns” for a very good reason. They have persuasive and pervasive design features which are deliberately baked into the design of the digital services and products, to capture and hold, in this case, children’s attention, and to create habitual, even compulsive behaviours. The damage this does to children is proven and palpable. For example, one of the features mentioned is infinite scroll, which is now ubiquitous on most major social media platforms. The inventor of infinite scroll, a certain Aza Raskin, who probably thought it was a brilliant idea at the time, has said publicly that he now deeply regrets ever introducing it, because of the effect it is having on children.

One of the young people who spoke to the researchers at 5Rights said of the struggle they have daily with the infinite scroll feature:

“Scrolling forever gives me a sick feeling in my stomach. I’m so aware of how little control I have and the feeling of needing to be online is overwhelming and consuming”.


Features designed to keep users—adults, maybe fine, but children not fine—online at any cost are taking a real toll. Managing public and frequent interactions online, which the features encourage, creates the most enormous pressures for young people, and with that comes anxiety, low self-esteem and mental health challenges. This is only increasing, and unless we are very specific about these, they are going to continue.

We have the evidence. We know what poses harm and risk to children. Please can we make sure that this is reflected accurately in the Bill?

[Baroness Kidron (CB)]

My Lords, I rise briefly to support many of the amendments in this group. I will start with Amendments 281, 281A and 281B in the name of my noble friend Lord Russell, to which I have added my name. The noble Lord set out the case very well. I will not reiterate what he said, but it is simply the case that the features and functionalities of regulated companies should not be separated by search and user-to-user but should apply across any regulated company that has that feature. There is no need to worry about a company that does not have one of the features on the list, but it is a much more dangerous thing to have an absent feature than it is to have a single list and hold companies responsible for their features.

Only this morning, Meta released Thread as its challenger to Twitter. In the last month, Snapchat added generative AI to its offering. Instagram now does video, and TikTok does shopping. All these companies are moving into a place where they would like to be the one that does everything. That is their commercial endgame, and that is where the Bill should set its sights.

Separating out functionality and, as the noble Lord, Lord Russell, said, failing to add what we already know, puts the Bill in danger of looking very old before the ink is dry. I believe it unnecessarily curtails Ofcom in being able to approach the companies for what they are doing, rather than for what the Bill thought they might be doing at this point. So, if the Minister is not in a position to agree to the amendment, I urge him at least to take it away and have a look at it, because it is a technical rather than an ideological matter. It would be wonderful to fix it.

15:30

I support the other amendments in the group: Amendments 28 and 29, and the very interesting Amendment 30. We come back to a very similar issue, which is about design. The thing about Wikipedia is that it does not stand at the doorway and grab your attention, and it does not follow you for six months after you visit it. It does not have that algorithmic push. So, although I freely admit that there are some unsavoury things on Wikipedia, it does not push them at you or at young people. That is a really interesting thing for us to hold in mind when we talk about the next group of amendments on harm.

I am bound to say that, although the noble Lord, Lord Allan, might prefer his amendment and the noble Lord, Lord Moylan, might prefer his, I prefer Amendment 245 in the name of the noble Baroness, Lady Morgan, which says that all services should be judged according to risk. This would stop this endless game of taking things out and putting things in, in case they behave badly, or taking things out for companies that we recognise now although we do not know what the companies of the future will be. We all have to remember that, even when we had the pre-legislative committee, we were not talking about large language models and when we started this Bill we were not talking about TikTok. Making laws for individual services is not a grand idea, but saying that it is not the size but the risk that should determine the category of a regulated service, and therefore its duties, seems a comprehensive way of getting to the same place.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, there is a danger of unanimity breaking out. The noble Lord, Lord Moylan, and I are not always on the same page as others, but this is just straightforward. I hope the Government listen to the fact that, even though we might be coming at this in different ways, there is concern on all sides.

I also note that this is a shift from what happened in Committee, when I tabled an amendment to try to pose the same dilemmas by talking about the size of organisations. Many a noble Lord said that size did not matter and that that did not work—but it was trying to get at the same thing. I do feel rather guilty that, to move the core philosophy forward, I have dumped the small and micro start-ups and SMEs that I also wanted to protect from overregulation—that is what has happened in this amendment—but now it seems an absolute no-brainer that we should find a way to exempt public interest organisations. This is where I would go slightly further. We should have a general exemption for public interest organisations, but with the ability for Ofcom to come down hard if they look as though they have moved from being low risk to being a threat.

As the noble Lord, Lord Moylan, noted, public interest exemptions happen throughout the world. Although I do not want to waste time reading things out, it is important to look at the wording of Amendment 29. As it says, we are talking about:

“historical, academic, artistic, educational, encyclopaedic, journalistic, or statistical content”.

We are talking about the kind of online communities that benefit the public interest. We are talking about charities, user-curated scientific publications and encyclopaedias. They is surely not what this Bill was designed to thwart. However, there is a serious danger that, if we put on them the number of regulatory demands in the Bill, they will not survive. That is not what the Government intend but it is what will happen.

Dealing with the Bill’s complexity will take much time and money for organisations that do not have it. I run a small free-speech organisation called the Academy of Ideas and declare my interest in it. I am also on the board of the Free Speech Union. When you have to spend so much time on regulatory issues it costs money and you will go under. That is important. This could waste Ofcom’s time. The noble Lord, Lord Allan of Hallam, has explained that. It would prevent Ofcom concentrating on the nasty bits that we want it to. It would be wasting its time trying to deal with what is likely to happen.

I should mention a couple of other things. It is important to note that there is sometimes controversy over the definition of a public interest organisation. It is not beyond our ken to sort it out. I Googled it—it is still allowed—and came up with a Wikipedia page that still exists. That is always good. If one looks, the term “public interest” is used across a range of laws. The Government know what kind of organisations they are talking about. The term has not just been made up for the purpose of an exemption.

It is also worth noting that no one is talking about public interest projects and organisations not being regulated at all but this is about an exemption from this regulation. They still have to deal with UK defamation, data protection, charity, counterterrorism and pornography laws, and the common law. Those organisations’ missions and founding articles will require that they do some good in the world. That is what they are all about. The Government should take this matter seriously.

Finally, on the rescue clauses, it is important to note—there is a reference to the Gambling Act—the Bill states that if there is problem, Ofcom should intervene. That was taken from what happens under the Gambling Act, which allows UK authorities to strip one or more gambling businesses of their licensing exemptions when they step out of line. No one is trying to say do not look at those exemptions at all but they obviously should not be in the scope of the Bill. I hope that when we get to the next stage, the Government will, on this matter at least, accept the amendment.

[Baroness Harding of Winscombe (Con)]

My Lords, I also speak in support of Amendments to 281, 281A and 281B, to which I have added my name, tabled by the noble Lord, Lord Russell. He and, as ever, the noble Baroness Kidron, have spoken eloquently, I am not going to spend much time on these amendments but I wanted to emphasise Amendment 281A.

In the old world of direct marketing—I am old enough to remember that when I was a marketing director it was about sending magazines, leaflets and letters—one spent all of one’s time working out how to build loyalty: how to get people to engage longer as a result of one’s marketing communication. In the modern digital world, that dwell time has been transformed into a whole behavioural science of its own. It has developed a whole set of tools. Today, we have been using the word “activity” at the beginning of the Bill in the new Clause 1 but also “features” and “functionality”. The reason why Amendment 281A is important is that there is a danger that the Bill keeps returning to being just about content. Even in Clause 208 on functionality, almost every item in subsection (2) mentions content, whereas Amendment 281A tries to spell out the elements of addiction-driving functionality that we know exist today.

I am certain that brilliant people will invent some more but we know that these ones exist today. I really think that we need to put them in the Bill to help everyone understand what we mean because we have spent days on this Bill—some of us have spent years, if not decades, on this issue—yet we still keep getting trapped in going straight back to content. That is another reason why I think it is so important that we get some of these functionalities in the Bill. I very much hope that, if he cannot accept the amendment today, my noble friend the Minister will go back, reflect and work out how we could capture these specific functionalities before it is too late.

I speak briefly on Amendments 28 to 30. There is unanimity of desire here to make sure that organisations such as Wikipedia and Streetmap are not captured. Personally, I am very taken—as I often am—by the approach of the noble Baroness, Lady Kidron. We need to focus on risk rather than using individual examples, however admirable they are today. If Wikipedia chose to put on some form of auto-scroll, the risk of that service would go up; I am not suggesting that Wikipedia is going to do so today but, in the digital world, we should not assume that, just because organisations are charities or devoted to the public good, they cannot inadvertently cause harm. We do not make that assumption in the physical world either. Charities that put on physical events have to do physical risk assessments. I absolutely think that we should hold all organisations to that same standard. However, viewed through the prism of risk, Wikipedia—brilliant as it is—does not have a risk for child safety and therefore should not be captured by the Bill.

[The Lord Bishop of Oxford]

My Lords, I broadly support all the amendments in this group but I will focus on the three amendments in the names of the noble Lord, Lord Russell, and others; I am grateful for their clear exposition of why these amendments are important. I draw particular attention to Amendment 281A and its helpful list of functions that are considered to be harmful and to encourage addiction.

There is a very important dimension to this Bill, whose object, as we have now established, is to encourage safety by design. An important aspect of it is cleaning up, and setting right, 20 years or more of tech development that has not been safe by design and has in fact been found to be harmful by way of design. As the noble Baroness, Lady Harding, just said, in many conversations and in talking to people about the Bill, one of the hardest things to communicate and get across is that this is about not only content but functionality. Amendment 281A provides a useful summary of the things that we know about in terms of the functions that cause harm. I add my voice to those encouraging the Minister and the Government to take careful note of it and to capture this list in the text of the Bill in some way so that this clean-up operation can be about not only content for the future but functionality and can underline the objectives that we have set for the Bill this afternoon.

[Baroness Stowell of Beeston (Con)]

My Lords, I start by saying amen—not to the right reverend Prelate but to my noble friend Lady Harding. She said that we should not assume that, just because charities exist, they are all doing good; as a former chair of the Charity Commission, I can say that that is very true.

The sponsors of Amendments 281 to 281B have made some powerful arguments in support of them. They are not why I decided to speak briefly on this group but, none the less, they made some strong points.

I come back to Amendments 28 to 30. Like others, I do not have a particular preference for which of the solutions is proposed to address this problem but I have been very much persuaded by the various correspondence that I have received—I am sure that other noble Lords have received such correspondence—which often uses Wikipedia as the example to illustrate the problem.

However, I take on board what my noble friend said: there is a danger of identifying one organisation and getting so constrained by it that we do not address the fundamental problems that the Bill is about, which is making sure that there is a way of appropriately excluding organisations that should not be subject to these various regulations because they are not designed for them. I am open to the best way of doing that.

15:45

[Lord Clement-Jones (LD)]

My Lords, this has been a very interesting debate, as it is a real contrast. We have one set of amendments which say that the net is too wide and another which say that the net is not wide enough, and I agree with both of them. After all, we are trying to fine-tune the Bill to get it to deal with the proper risks—the word “risk” has come up quite a lot in this debate—that it should. Whether or not we make a specific exemption for public interest services, public information services, limited functionality services or non-commercial services, we need to find some way to deal with the issue raised by my noble friend and the noble Lord, Lord Moylan, in their amendments. All of us are Wikipedia users; we all value the service. I particularly appreciated what was said by the noble Baroness, Lady Kidron: Wikipedia does not push its content at us—it is not algorithmically based.

What the noble Lord, Lord Russell, said, resonated with me, because I think he has found a thundering great hole in the Bill. This infinite scrolling and autoplay is where the addiction of so much of social media lies, and the Bill absolutely needs systemically and functionally to deal with it. So, on the one hand, we have a service which does not rely on that infinite scrolling and algorithmic type of pushing of content and, on the other hand, we are trying to identify services which have that quality.

I very much hope the Minister is taking all this on board, because on each side we have identified real issues. Whether or not, when we come to the light at the end of the tunnel of Amendment 245 from the noble Baroness, Lady Morgan, it will solve all our problems, I do not know. All I can say is that I very much hope that the Minister will consider both sets of amendments and find a way through this that is satisfactory to all sides.

[Lord Stevenson of Balmacara (Lab)]

My Lords, much like the noble Lord, Lord Clement-Jones, I started off being quite certain I knew what to say about these amendments. I even had some notes—unusual for me, I know—but I had to throw them away, which I always do with my notes, because the arguments have been persuasive. That is exactly why we are here in Parliament discussing things: to try to reach common solutions to difficult problems.

We started with a challenge to the Minister to answer questions about scope, exemptions and discretion in relation to a named service—Wikipedia. However, as the debate went on, we came across the uncomfortable feeling that, having got so far into the Bill and agreed a lot of amendments today improving it, we are still coming up against quite stubborn issues that do not fit neatly into the categorisation and structures that we have. We do not seem to have the right tools to answer the difficult questions before us today, let alone the myriad questions that will come up as the technology advances and new services come in. Why have we not already got solutions to the problems raised by Amendments 281, 281A and 281B?

There is also the rather difficult idea we have from the noble Lord, Lord Russell, of dark patterns, which we need to filter into our thinking. Why does that not fit into what we have got? Why is it that we are still worried about Wikipedia, a service for public good, which clearly has risks in it and is sometimes capable of making terrible mistakes but is definitely a good thing that should not be threatened by having to conform with a structure and a system which we think is capable of dealing with some of the biggest and most egregious companies that are pushing stuff at us in the way that we have talked about?

I have a series of questions which I do not have the answers to. I am looking forward to the Minister riding to my aid on a white charger of enormous proportions and great skill which will take us out without having to fall over any fences.

If I may, I suggest to the Minister a couple of things. First, we are stuck on the word “content”. We will come back to that in the future, as we still have an outstanding problem about exactly where the Bill sets it. Time and again in discussions with the Bill team and with Ministers we have been led back to the question of where the content problem lies and where the harms relate to that, but this little debate has shown beyond doubt that harm can occur independent of and separate from content. We must have a solution to that, and I hope it will be quick.

Secondly, when approaching anybody or anything or any business or any charity that is being considered in scope for this Bill, we will not get there if we are looking only at the question of its size and its reach. We have to look at the risks it causes, and we have to drill down hard into what risks we are trying to deal with using our armoury as we approach these companies, because that is what matters to the children, vulnerable people and adults who would suffer otherwise, and not the question of whether or not these companies are big or small. I think there are solutions to that and we will get there, but, when he comes to respond, the Minister needs to demonstrate to us that he is still willing to listen and think again about one or two issues. I look forward to further discussions with him.

[Lord Parkinson of Whitley Bay (Con)]

I am grateful to noble Lords for their contributions during this debate. I am sympathetic to arguments that we must avoid imposing disproportionate burdens on regulated services, and particularly that the Bill should not inhibit services from providing valuable information which is of benefit to the public. However, I want to be clear that that is why the Bill has been designed in the way that it has. It has a broad scope in order to capture a range of services, but it has exemptions and categorisations built into it. The alternative would be a narrow scope, which would be more likely inadvertently to exempt risky sites or to displace harm on to services which we would find are out of scope of the Bill. I will disappoint noble Lords by saying that I cannot accept their amendments in this group but will seek to address the concerns that they have raised through them.

The noble Lord, Lord Allan, asked me helpfully at the outset three questions, to which the answers are yes, no and maybe. Yes, Wikipedia and OpenStreetMap will be in scope of the Bill because they allow users to interact online; no, we do not believe that they would fall under any of the current exemptions in the Bill; and the maybe is that Ofcom does not have the discretion to exempt services but the Secretary of State can create additional exemptions for further categories of services if she sees fit.

I must also say maybe to my noble friend Lord Moylan on his point about Wikipedia—and with good reason. Wikipedia, as I have just explained, is in scope of the Bill and is not subject to any of its exemptions. I cannot say how it will be categorised, because that is based on an assessment made by the independent regulator, but I reassure my noble friend that it is not the regulator but the Secretary of State who will set the categorisation thresholds through secondary legislation; that is to say, a member of the democratically elected Government, accountable to Parliament, through legislation laid before that Parliament. It will then be for Ofcom to designate services based on whether or not they meet those thresholds.

It would be wrong—indeed, nigh on impossible—for me to second-guess that designation process from the Dispatch Box. In many cases it is inherently a complex and nuanced matter since, as my noble friend Lady Harding said, many services change over time. We want to keep the Bill’s provisions flexible as services change what they do and new services are invented.

[Lord Allan of Hallam (LD)]

I—

[Lord Parkinson of Whitley Bay (Con)]

I would just like to finish my thought on Wikipedia. Noble Lords are right to mention it and to highlight the great work that it does. My honourable friend the Minister for Technology and the Digital Economy, Paul Scully, met Wikipedia yesterday to discuss its concerns about the Bill. He explained that the requirements for platforms in this legislation will be proportionate to the risk of harm, and that as such we do not expect the requirements for Wikipedia to be unduly burdensome.

[Lord Allan of Hallam (LD)]

I am computing the various pieces of information that have just been given, and I hope the Minister can clarify whether I have understood them correctly. These services will be in scope as user-to-user services and do not have an exemption, as he said. The Secretary of State will write a piece of secondary legislation that will say, “This will make you a category 1 service”—or a category 2 or 2B service—but, within that, there could be text that has the effect that Wikipedia is in none of those categories. So it and services like it could be entirely exempt from the framework by virtue of that secondary legislation. Is that a correct interpretation of what he said?

[Lord Parkinson of Whitley Bay (Con)]

The Secretary of State could create further exemptions but would have to bring those before Parliament for it to scrutinise. That is why there is a “maybe” in answer to his third question in relation to any service. It is important for the legislation to be future-proofed that the Secretary of State has the power to bring further categorisations before Parliament for it to discuss and scrutinise.

[Lord Allan of Hallam (LD)]

My Lords, I will keep pressing this point because it is quite important, particularly in the context of the point made by the noble Baroness, Lady Kidron, about categorisation, which we will debate later. There is a big difference when it comes to Schedule 11, which defines the categorisation scheme: whether in the normal run of business we might create an exemption in the categorisation secondary legislation, or whether it would be the Secretary of State coming back with one of those exceptional powers that the Minister knows we do not like. He could almost be making a case for why the Secretary of State has to have these exceptional powers. We would be much less comfortable with that than if the Schedule 11 categorisation piece effectively allowed another class to be created, rather than it being an exceptional Secretary of State power.

[Baroness Fox of Buckley (Non-Afl)]

To follow on from that, we are talking about the obligation to bring exemptions to Parliament. Well, we are in Parliament and we are bringing exemptions. The noble Lord is recommending that we bring very specific exemptions while those that the noble Lord, Lord Moylan, and I have been recommending may be rather broad—but I thought we were bringing exemptions to Parliament. I am not being facetious. The point I am making is, “Why can’t we do it now?” We are here now, doing this. We are saying, as Parliament, “Look at these exemptions”. Can the Minister not look at them now instead of saying that we will look at them some other time?

[Baroness Kidron (CB)]

I may as well intervene now as well, so that the Minister can get a good run at this. I too am concerned at the answer that has been given. I can see the headline now, “Online Safety Bill Age-Gates Wikipedia”. I cannot see how it does not, by virtue of some of the material that can be found on Wikipedia. We are trying to say that there are some services that are inherently in a child’s best interests—or that are in their best interests according to their evolving capacity, if we had been allowed to put children’s rights into the Bill. I am concerned that that is the outcome of the answer to the noble Lord, Lord Allan.

16:00

[Lord Parkinson of Whitley Bay (Con)]

I do not think that it is, but it will be helpful to have a debate on categorisation later on Report, when we reach Amendment 245, to probe this further. It is not possible for me to say that a particular service will certainly be categorised one way or another, because that would give it carte blanche and we do not know how it may change in the future—estimable though I may think it is at present. That is the difficulty of setting the precise parameters that the noble Baroness, Lady Fox, sought in her contribution. We are setting broad parameters, with exemptions and categorisations, so that the burdens are not unduly heavy on services which do not cause us concern, and with the proviso for the Secretary of State to bring further exemptions before Parliament, as circumstances strike her as fit, for Parliament to continue the debate we are having now.

The noble Baroness, Lady Kidron, in her earlier speech, asked about the functionalities of user-to-user services. The definitions of user-to-user services are broad and flexible, to capture new and changing services. If a service has both user-to-user functionality and a search engine, it will be considered a combined service, with respective duties for the user-to-user services which form part of its service and search duties in relation to the search engine.

I reassure my noble friend Lady Harding of Winscombe that the Bill will not impose a disproportionate burden on services, nor will it impede the public’s access to valuable content. All duties on services are proportionate to the risk of harm and, crucially, to the capacity of companies. The Bill’s proportionate design means that low-risk services will have to put in place only measures which reflect the risk of harm to their users. Ofcom’s guidance and codes of practice will clearly set out how these services can comply with their duties. We expect that it will set out a range of measures and steps for different types of services.

Moreover, the Bill already provides for wholesale exemptions for low-risk services and for Ofcom to exempt in-scope services from requirements such as record-keeping. That will ensure that there are no undue burdens to such services. I am grateful for my noble friend’s recognition, echoed by my noble friend Lady Stowell of Beeston, that “non-profit” does not mean “not harmful” and that there can be non-commercial services which may pose harms to users. That is why it is important that there is discretion for proper assessment.

Amendment 30 seeks to allow Ofcom to withdraw the exemptions listed in Schedule 1 from the Bill. I am very grateful to my noble friend Lord Moylan for his time earlier this week to discuss his amendment and others. We have looked at it, as I promised we would, but I am afraid that we do not think that it would be appropriate for Ofcom to have this considerable power—my noble friend is already concerned that the regulator has too much.

The Bill recognises that it may be necessary to remove certain exemptions if there is an increased risk of harm from particular types of services. That is why the Bill gives the Secretary of State the power to remove particular exemptions, such as those related to services which have limited user-to-user functionality and those which offer one-to-one live aural communications. These types of services have been carefully selected as areas where future changes in user behaviour could necessitate the repeal or amendment of an exemption in Schedule 1. This power is intentionally limited to only these types of services, meaning that the Secretary of State will not be able to remove exemptions for comments on recognised news publishers’ sites. That is in recognition of the Government’s commitment to media freedom and public debate. It would not be right for Ofcom to have the power to repeal those exemptions.

Amendments 281 and 281B, in the name of the noble Lord, Lord Russell of Liverpool, are designed to ensure that the lists of features under the definition of “functionality” in the Bill apply to all regulated services. Amendment 281A aims to add additional examples of potentially addictive functionalities to the Bill’s existing list of features which constitute a “functionality”. I reassure him and other noble Lords that the list of functionalities in the Bill is non-exhaustive. There may be other functionalities which could cause harm to users and which services will need to consider as part of their risk assessment duties. For example, if a provider’s risk assessment identifies that there are functionalities which risk causing significant harm to an appreciable number of children on its service, the Bill will require the provider to put in place measures to mitigate and manage that risk.

He and other noble Lords spoke about the need for safety by design. I can reassure them this is already built into the framework of the Bill, which recognises how functionalities including many of the things mentioned today can increase the risk of harm to users and will encourage the safe design of platforms.

Amendments 281 and 281B have the effect that regulated services would need to consider the risk of harm of functionalities that are not relevant for their kind of service. For example, sharing content with other users is a functionality of user-to-user services, which is not as relevant for search services. The Bill already outlines specific features that both user-to-user and search services should consider, which are the most relevant functionalities for those types of service. Considering these functionalities would create an unnecessary burden for regulated services which would detract from where their efforts can best be focused. That is why I am afraid I cannot accept the amendments that have been tabled.

[Lord Clement-Jones (LD)]

My Lords, surely it is the role of the regulators to look at functionalities of this kind. The Minister seemed to be saying that it would be an undue burden on the regulator. Is not that exactly what we are meant to be legislating about at this point?

[Lord Parkinson of Whitley Bay (Con)]

Perhaps I was not as clear as I could or should have been. The regulator will set out in guidance the duties that fall on the businesses. We do not want the burden on the business to be unduly heavy, but there is an important role for Ofcom here. I will perhaps check—

[Lord Clement-Jones (LD)]

But these functionalities are a part of their business model, are they not?

[Lord Parkinson of Whitley Bay (Con)]

Hence Ofcom will make the assessments about categorisation based on that. Maybe I am missing the noble Lord’s point.

[Lord Clement-Jones (LD)]

I think we may need further discussions on the amendment from the noble Lord, Lord Russell.

[Lord Parkinson of Whitley Bay (Con)]

I will check what I said but I hope that I have set out why we have taken the approach that we have with the broad scope and the exemptions and categorisations that are contained in it. With that, I urge the noble Lord to withdraw his amendment.

[Lord Allan of Hallam (LD)]

My Lords, that was a very useful debate. I appreciate the Minister’s response and his “yes, no, maybe” succinctness, but I think he has left us all more worried than when the debate started. My noble friend Lord Clement-Jones tied it together nicely. What we want is for the regulator to be focused on the greatest areas of citizen risk. If there are risks that are missing, or things that we will be asking the regulator to do that are a complete waste of time because they are low risk, then we have a problem. We highlighted both those areas. The noble Lord, Lord Russell, rightly highlighted that we are not content with just “content” as the primary focus of the legislation; it is about a lot more than content. In my amendment and those by the noble Lord, Lord Moylan, we are extremely worried—and remain so—that the Bill creates a framework that will trap Wikipedia and services like it, without that being our primary intention. We certainly will come back to this in later groups; I will not seek to press the amendment now, because there is a lot we all need to digest. However, at the end of this process, we want to get to point where the regulator is focused on things that are high risk to the citizen and not wasting time on services that are very low risk. With that, I beg leave to withdraw my amendment.

Amendment 28 withdrawn.

Amendment 29 not moved.

Amendment 30 not moved.

Clause 5: Overview of Part 3

Amendment 31

Moved by

[Lord Parkinson of Whitley Bay]

31: Clause 5, page 4, line 40, leave out “section 54” and insert “sections 54 to (“Priority content that is harmful to children”)”
Member’s explanatory statement
This amendment is consequential on the new Clauses proposed to be inserted after Clause 54 in my name setting out which kinds of content count as primary priority content and priority content harmful to children.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the government amendments in this group relate to the categories of primary priority and priority content that is harmful to children.

Children must be protected from the most harmful online content and activity. As I set out in Committee, the Government have listened to concerns about designating primary priority and priority categories of content in secondary legislation and the need to protect children from harm as swiftly as possible. We have therefore tabled amendments to set out these categories in the Bill. I am grateful for the input from across your Lordships’ House in finalising the scope of these categories.

While it is important to be clear about the kinds of content that pose a risk of harm to children, I acknowledge what many noble Lords raised during our debates in Committee, which is that protecting children from online harm is not just about content. That is why the legislation takes a systems and processes approach to tackling the risk of harm. User-to-user and search service providers will have to undertake comprehensive, mandatory risk assessments of their services and consider how factors such as the design and operation of a service and its features and functionalities may increase the risk of harm to children. Providers must then put in place measures to manage and mitigate these risks, as well as systems and processes to prevent and protect children from encountering the categories of harmful content.

We have also listened to concerns about cumulative harm. In response to this, the Government have tabled amendments to Clause 209 to make it explicit that cumulative harm is addressed. This includes cumulative harm that results from algorithms bombarding a user with content, or where combinations of functionality cumulatively drive up the risk of harm. These amendments will be considered in more detail under a later group of amendments, but they are important context for this discussion.

I turn to the government amendments, starting with Amendment 171, which designates four categories of primary priority content. First, pornographic content has been defined in the same way as in Part 5—to give consistent and comprehensive protection for children, regardless of the type of service on which the pornographic content appears. The other three categories capture content which encourages, promotes or provides instructions for suicide, self-harm or eating disorders. This will cover, for example, glamorising or detailing methods for carrying out these dangerous activities. Designating these as primary priority content will ensure that the most stringent child safety duties apply.

Government Amendment 172 designates six categories of priority content. Providers will be required to protect children from encountering a wide range of harmful violent content, which includes depictions of serious acts of violence or graphic injury against a person or animal, and the encouragement and promotion of serious violence, such as content glamorising violent acts. Providers will also be required to protect children from encountering abusive and hateful content, such as legal forms of racism and homophobia, and bullying content, which sadly many children experience online.

The Government have heard concerns from the noble Baronesses, Lady Kidron and Lady Finlay of Llandaff, about extremely dangerous activities being pushed to children as stunts, and content that can be harmful to the health of children, including inaccurate health advice and false narratives. As such, we are designating content that encourages dangerous stunts and challenges as a category of priority content, and content which encourages the ingestion or inhalation of, or exposure to, harmful substances, such as harmful abortion methods designed to be taken by a person without medical supervision.

Amendment 174, from the noble Baroness, Lady Kidron, seeks to add “mis- and disinformation” and “sexualised content” to the list of priority content. On the first of these, I reiterate what I said in Committee, which is that the Bill will protect children from harmful misinformation and disinformation where it intersects with named categories of primary priority or priority harmful content—for example, an online challenge which is promoted to children on the basis of misinformation or disinformation, or abusive content with a foundation in misinformation or disinformation. However, I did not commit to misinformation and disinformation forming its own stand-alone category of priority harmful content, which could be largely duplicative of the categories that we have already included in the Bill and risks capturing a broad range of legitimate content.

We have already addressed key concerns related to misinformation and disinformation content which presents the greatest risk to children by including content which encourages the ingestion or inhalation of, or exposure to, harmful substances to the list of priority categories. However, the term “mis- and disinformation”, as proposed by Amendment 174, in its breadth and subjectivity risks inadvertently capturing a wide range of content resulting in disproportionate, excessive censorship of the content children see online, including in areas of legitimate debate. The harm arising from misinformation or disinformation usually arises from the context or purpose of the content, rather than the mere fact that it is untrue. Our balanced approach ensures that children are protected from the most prevalent and concerning harms associated with misinformation and disinformation.

16:15

I turn to sexualised and adult content. Again, we must tread carefully here. What might constitute this is subjective and presents challenges for both providers and Ofcom to interpret. It is important that what constitutes priority content is sufficiently well defined so it is clear both to providers and to Ofcom what their obligations under the Bill are. Amendment 174 sets an extremely broad scope and gives rise to a risk of censorship if providers take an excessively broad interpretation of what is sexualised and adult content. It is important that we safeguard children’s freedom of expression through the Bill and do not inadvertently limit their access to innocuous and potentially helpful content.

The duties are, of course, not limited to the content in the Government’s amendments. The Bill requires providers to identify and act on any “non-designated content” which meets the Bill’s threshold of

“content that is harmful to children”,

even where it has not been designated as primary priority or priority content. Therefore, I hope the noble Baroness will understand why we cannot accept Amendment 174.

Amendment 237 in my name introduces a delegated power to update and amend these lists. This is essential for ensuring that the legislation remains flexible to change and that new and emerging risks of harm can be captured swiftly. Amendment 238, also in my name, ensures that the draft affirmative procedure will apply except in cases where there is an urgent need to update the lists, when the affirmative procedure can be used. This ensures that Parliament will retain the appropriate degree of oversight over any changes. I beg to move.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, we spent a lot of time in Committee raising concerns about how pornography and age verification were going to operate across all parts of the Bill. I have heard what the Minister has said in relation to this group, priority harms to children, which I believe is one of the most important groups under discussion in the Bill. I agree that children must be protected from the most harmful content online and offline.

I am grateful to the Government for having listened carefully to the arguments put forward by the House in this regard and commend the Minister for all the work he and his team have done since them. I also commend the noble Lord, Lord Bethell. He and I have been in some discussion between Committee and now in relation to these amendments.

In Committee, I argued for several changes to the Bill which span three groups of amendments. One of my concerns was that pornography should be named as a harm in the Bill. I welcome the Government’s Amendment 171, which names pornography as a primary priority content. I also support Amendment 174 in the name of the noble Baroness, Lady Kidron. She is absolutely right that sexualised content can be harmful to children if not age appropriate and, in that regard, before she even speaks, I ask the Minister tousb reconsider his views on this amendment and to accept it.

Within this group are the amendments which move the definition of “pornographic content” from Part 5 to Clause 211. In that context, I welcome the Government’s announcement on Monday about a review of the regulation, legislation and enforcement of pornography offences.

In Committee, your Lordships were very clear that there needed to be a consistent approach across the Bill to the regulation of pornography. I am in agreement with the amendments tabled in Committee to ensure that consistency applies across all media. In this regard, I thank the noble Baroness, Lady Benjamin, for her persistence in raising this issue. I also thank my colleagues on the Opposition Front Bench, the noble Lord, Lord Stevenson, and the noble Baroness, Lady Merron.

I appreciate that the Government made this announcement only three days ago, but I hope the Minister will set out a timetable for publishing the terms of reference and details of how this review will take place. The review is too important to disappear into the long grass over the Summer Recess, never to be heard of again, so if he is unable to answer my question today, will he commit to writing to your Lordships with the timeframe before the House rises for the summer? Will he consider the active involvement of external groups in this review, as much expertise lies outside government in this area? In that regard, I commend CARE, CEASE and Barnardo’s for all their input into the debates on the Bill.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I think the noble Baroness’s comments relate to the next group of amendments, on pornography. She might have skipped ahead, but I am grateful for the additional thinking time to respond to her questions. Perhaps she will save the rest of her remarks for that group.

[Baroness Ritchie of Downpatrick (Lab)]

I thank the Minister for that. In conclusion, I hope he will reflect on those issues and come back, maybe at the end of the next group. I remind the House that in February the APPG on Commercial Sexual Exploitation, in its inquiry on pornography, recommended that the regulation of pornography should be consistent across all online platforms and between the online and offline spheres. I hope we can incorporate the voices I have already mentioned in the NGO sphere in order to assist the Government and both Houses in ensuring that we regulate the online platforms and that children are protected from any harms that may arise.

[Baroness Kidron (CB)]

My Lords, I shall speak briefly to Amendment 174 in my name and then more broadly to this group—I note that the Minister got his defence in early.

On the question of misinformation and disinformation, I recognise what he said and I suppose that, in my delight at hearing the words “misinformation and disinformation”, I misunderstood to some degree what he was offering at the Dispatch Box, but I make the point that this poses an enormous risk to children. As an example, children are the fastest-growing group of far-right believers/activists online, and there are many areas in which we are going to see an exponential growth in misinformation and disinformation as large language models become the norm. So I ask him, in a tentative manner, to look at that.

On the other issue, I have to push back at the Minister’s explanation. Content classification around sexual content is a well-established norm. The BBFC does it and has done it for a very long time. There is an absolute understanding that what is suitable for a U, a PG, a 12 or a 12A are different things, and that as children’s capacities evolve, as they get older, there are things that are more suitable for older children, including, indeed, stronger portrayals of sexual behaviour as the age category rises. So I cannot accept that this opens a new can of worms: this is something that we have been doing for many, many years.

I think it is a bit wrongheaded to imagine that if we “solve” the porn problem, we have solved the problem—because there is still sexualisation and the commercialisation of sex. Now, if you say something about feet to a child, they start to giggle uproariously because, in internet language, you get paid for taking pictures of feet and giving them to strange people. There are such detailed and different areas that companies should be looking at. This amendment in my name and the names of the noble Lord, Lord Stevenson, the noble Baroness, Lady Harding, and the right reverend Prelate the Bishop of Oxford, should be taken very seriously. It is not new ground, so I would ask the Minister to reconsider it.

More broadly, the Minister will have noticed that I liberally added my name to the amendments he has brought forward to meet some of the issues we raised in Committee, and I have not added my name to the schedule of harms. I want to be nuanced about this and say I am grateful to the Government for putting them in the Bill, I am grateful that the content harms have been discussed in this Chamber and not left for secondary legislation, and I am grateful for all the conversations around this. However, harm cannot be defined only as content, and the last grouping got to the core of the issue in the House. Even when the Minister was setting out this amendment, he acknowledged that the increase in harm to users may be systemic and by design. In his explanation, he used the word “harm”; in the Bill, it always manifests as “harmful content”.

While the systemic risk of increasing the presence of harmful content is consistently within the Bill, which is excellent, the concept that the design of service may in and of itself be harmful is absent. In failing to do that, the Government, and therefore the Bill, have missed the bull’s-eye. The bull’s-eye is what is particular about this method of communication that creates harm—and what is particular are the features, functionalities and design. I draw noble Lords back to the debate about Wikipedia. It is not that we all love Wikipedia adoringly; it is that it does not pursue a system of design for commercial purposes that entraps people within its grasp. Those are the harms we are trying to get at. I am grateful for the conversations I have had, and I look forward to some more. I have laid down some other amendments for Monday and beyond that would, I hope, deal with this—but until that time, I am afraid this is an incomplete picture.

[Lord Moylan (Con)]

My Lords, I have a comment about Amendment 174 in the name of the noble Baroness, Lady Kidron. I have no objection to the insertion of subsection (9B), but I am concerned about (9A), which deals with misinformation and disinformation. It is far too broad and political, and if we start at this late stage to try to run off into these essentially political categories, we are going to capsize the Bill altogether. So I took some heart from the fact that my noble friend on the Front Bench appeared disinclined to accept at least that limb of the amendment.

I did want to ask briefly some more detailed questions about Amendment 172 and new subsection (2) in particular. This arises from the danger of having clauses added at late stages of the Bill that have not had the benefit of proper discussion and scrutiny in Committee. I think we are all going to recognise the characteristics that are listed in new subsection (2) as mapping on to the Equality Act, which appears to be their source. I note in passing that it refers in that regard to gender reassignment. I would also note that most of the platforms, in their terms and conditions, refer not to gender reassignment but to various other things such as gender identity, which are really very different, or at least different in detail, and I would be interested to ask my noble friend how effectively he expects it to be enforced that the words used in English statute are actually applied by these foreign platforms—I am going to come back to this in a further amendment later—or how the words used in English statute are applied by what are, essentially, foreign platforms when they are operating for an audience in the United Kingdom.

16:30

I also want to make a more general point. I have looked up the Equality Act, to make sure I am not mistaken about this. The Equality Act is essentially about discrimination against people as individuals or as groups. In defining direct discrimination, it says:

“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.

So, there has to be a “B”—there has to be a person—for the Equality Act to be engaged. But this Bill says content is abusive when it

“targets any of the following characteristics”.

“Targets” is an interesting word. It does not say “attacks” and it does not relate to treatment. One can “target” something favourably. One can be positive in targeting something. It does not have to be a negative thing.

On the question of religion, if I, A, treat B adversely because they adhere to a particular religion, I fall foul of the Equality Act. But this appears to cover religion as a phenomenon. So, if I say that I am going to treat somebody badly because they are Jewish, of course I fall foul of the Equality Act. But this appears to say that if I say something adverse and abusive about the Jewish religion without reference to any particular individual, I will fall foul of this clause. I know that sounds a minor point of detail, but it is actually very significant. I want to hear my noble friend explain how in detail this is going to operate. If I say something adverse or abusive about gender reassignment and disability, that would not fall foul of the Equality Act necessarily, but it would fall foul of the Bill, as far as I can see. Are we creating a new blasphemy offence here, in effect, in relation to religion, as opposed to what the Equality Act does? I would like my noble friend to be able to expand on this. I know this is a Committee stage-type query, but this is our first opportunity to ask these questions.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, interestingly, because I have not discussed this at all with the noble Lord, Lord Moylan, I have some similar concerns to his. I have always wanted this to be a children’s online safety Bill. My concerns generally have been about threats to adults’ free speech and privacy and the threat to the UK as the home of technological innovation. I have been happy to keep shtum on things about protecting children, but I got quite a shock when I saw the series of government amendments.

I thought what most people in the public think: the Bill will tackle things such as suicide sites and pornography. We have heard some of that very grim description, and I have been completely convinced by people saying, “It’s the systems”. I get all that. But here we have a series of amendments all about content—endless amounts of content and highly politicised, contentious content at that—and an ever-expanding list of harms that we now have to deal with. That makes me very nervous.

On the misinformation and disinformation point, the Minister is right. Whether for children or adults, those terms have been weaponised. They are often used to delegitimise perfectly legitimate if contrary or minority views. I say to the noble Baroness, Lady Kidron, that the studies that say that youth are the fastest-growing far-right group are often misinformation themselves. I was recently reading a report about this phenomenon, and things such as being gender critical or opposing the small boats arriving were considered to be evidence of far-right views. That was not to do with youth, but at least you can see that this is quite a difficult area. I am sure that many people even in here would fit in the far right as defined by groups such as HOPE not hate, whose definition is so broad.

My main concerns are around the Minister’s Amendment 172. There is a problem: because it is about protected characteristics—or apes the protected characteristics of the Equality Act—we might get into difficulty. Can we at least recognise that, even in relation to the protected characteristics as noted in the Equality Act, there are raging rows politically? I do not know how appropriate it is that the Minister has tabled an amendment dragging young people into this mire. Maya Forstater has just won a case in which she was accused of being opposed to somebody’s protected characteristics and sacked. Because of the protected characteristics of her philosophical views, she has won the case and a substantial amount of money.

I worry when I see this kind of list. It is not just inciting hatred—in any case, what that would mean is ambivalent. It refers to abuse based on race, religion, sex, sexual orientation, disability and so on. This is a minefield for the Government to have wandered into. Whether you like it or not, it will have a chilling effect on young people’s ability to debate and discuss. If you worry that some abuse might be aimed at religion, does that mean that you will not be able to discuss Charlie Hebdo? What if you wanted to show or share the Charlie Hebdo cartoons? Will that count? Some people would say that is abusive or inciteful. This is not where the Bill ought to be going. At the very least, it should not be going there at this late stage. Under race, it says that “nationality” is one of the indicators that we should be looking out for. Maybe it is because I live in Wales, but there is a fair amount of abuse aimed at the English. A lot of Scottish friends dole it out as well. Will this count for young people who do that? I cannot get it.

My final question is in relation to proposed subsection (11). This is about protecting children, yet it lists a person who

“has the characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.

Are the Government seriously accepting that children have not just proposed to reassign but have been reassigned? That is a breach of the law. That is not meant to be happening. Your Lordships will know how bad this is. Has the Department for Education seen this? As we speak, it is trying to untangle the freedom for people not to have to go along with people’s pronouns and so on.

This late in the day, on something as genuinely important as protecting children, I just want to know whether there is a serious danger that this has wandered into the most contentious areas of political life. I think it is very dangerous for a government amendment to affirm gender reassignment to and about children. It is genuinely irresponsible and goes against the guidance the Government are bringing out at the moment for us to avoid. Please can the Minister clarify what is happening with Amendment 172?

[Baroness Harding of Winscombe (Con)]

My Lords, I am not entirely sure how to begin, but I will try to make the points I was going to make. First, I would like to respond to a couple of the things said by the noble Baroness, Lady Fox. With the greatest respect, I worry that the noble Baroness has not read the beginning of the proposed new clause in Amendment 172, subsection (2), which talks about “Content which is abusive”, as opposed to content just about race, religion or the other protected characteristics.

One of the basic principles of the Bill is that we want to protect our children in the digital world in the same way that we protect them in the physical world. We do not let our children go to the cinema to watch content as listed in the primary priority and priority content lists in my noble friend the Minister’s amendments. We should not let them in the digital world, yet the reality is that they do, day in and day out.

I thank my noble friend the Minister, not just for the amendments that he has tabled but for the countless hours that he and his team have devoted to discussing this with many of us. I have not put my name to the amendments either because I have some concerns but, given the way the debate has turned, I start by thanking him and expressing my broad support for having the harms in the Bill, the importance of which this debate has demonstrated. We do not want this legislation to take people by surprise. The important thing is that we are discussing some fundamental protections for the most vulnerable in our society, so I thank him for putting those harms in the Bill and for allowing us to have this debate. I fear that it will be a theme not just of today but of the next couple of days on Report.

I started with the positives; I would now like to bring some challenges as well. Amendments 171 and 172 set out priority content and primary priority content. It is clear that they do not cover the other elements of harm: contact harms, conduct harms and commercial harms. In fact, it is explicit that they do not cover the commercial harms, because proposed new subsection (4) in Amendment 237 explicitly says that no amendment can be made to the list of harms that is commercial. Why do we have a perfect crystal ball that means we think that no future commercial harms could be done to our children through user-to-user and search services, such that we are going to expressly make it impossible to add those harms to the Bill? It seems to me that we have completely ignored the commercial piece.

I move on to Amendment 174, which I have put my name to. I am absolutely aghast that the Government really think that age-inappropriate sexualised content does not count as priority content. We are not necessarily talking here about a savvy 17 year-old. We are talking about four, five and six year-olds who are doomscrolling on various social media platforms. That is the real world. To suggest that somehow the digital world is different from the old-fashioned cinema, and a place where we do not want to protect younger children from age-inappropriate sexualised material, just seems plain wrong. I really ask my noble friend the Minister to reconsider that element.

I am also depressed about the discussion that we had about misinformation. As I said in Committee several times, I have two teenage girls. The reality is that we are asking today’s teenagers to try to work out what is truth and what is misinformation. My younger daughter will regularly say, “Is this just something silly on the internet?” She does not use the term “misinformation”; she says, “Is that just unreal, Mum?” She cannot tell about what appears in her social media feeds because of the degree of misinformation. Failing to recognise that misinformation is a harm for young people who do not yet know how to validate sources, which was so much easier for us when we were growing up than it is for today’s generations, is a big glaring gap, even in the content element of the harms.

I support the principle behind these amendments, and I am pleased to see the content harms named. We will come back next week to the conduct and contact harms—the functionality—but I ask my noble friend the Minister to reconsider on both misinformation and inappropriate sexualised material, because we are making a huge mistake by failing to protect our children from them.

16:45

[The Lord Bishop of Oxford]

My Lords, I too welcome these amendments and thank the Minister and the Government for tabling them. The Bill will be significantly strengthened by Amendment 172 and related amendments by putting the harms as so clearly described in the Bill. I identify with the comments of others that we also need to look at functionality. I hope we will do that in the coming days.

I also support Amendment 174, to which I added my name. Others have covered proposed new subsection (9B) very well; I add my voice to those encouraging the Minister to give it more careful consideration. I will also speak briefly to proposed new subsection (9A), on misinformation and disinformation content. With respect to those who have spoken against it and argued that those are political terms, I argue that they are fundamentally ethical terms. For me, the principle of ethics and the online world is not the invention of new ethics but finding ways to acknowledge and support online the ethics we acknowledge in the offline world.

Truth is a fundamental ethic. Truth builds trust. It made it into the 10 commandments:

“You shall not bear false witness against your neighbour”.


It is that ethic that would be translated across in proposed new subsection (9A). One of the lenses through which I have viewed the Bill throughout is the lens of my eight grandchildren, the oldest of whom is eight years old and who is already using the internet. Proposed new subsection (9A) is important to him because, at eight years old, he has very limited ways of checking out what he reads online—fewer even than a teenager. He stands to be fundamentally misled in a variety of ways if there is no regulation of misinformation and disinformation.

Also, the internet, as we need to keep reminding ourselves in all these debates, is a source of great potential good and benefit, but only if children grow up able to trust what they read there. If they can trust the web’s content, they will be able to expand their horizons, see things from the perspective of others and delve into huge realms of knowledge that are otherwise inaccessible. But if children grow up necessarily imbued with cynicism about everything they read online, those benefits will not accrue to them.

Misinformation and disinformation content is therefore harmful to the potential of children across the United Kingdom and elsewhere. We need to guard against it in the Bill.

[Lord Allan of Hallam (LD)]

My Lords, Amendment 172 is exceptionally helpful in putting the priority harms for children on the face of the Bill. It is something that we have asked for and I know the pre-legislative scrutiny committee asked for it and it is good to see it there. I want to comment to make sure that we all have a shared understanding of what this means and that people out there have a shared understanding.

My understanding is that “primary priority” is, in effect, a red light—platforms must not expose children to that content if they are under 18—while “priority” is rather an amber light and, on further review, for some children it will be a red light and for other children it be a green light, and they can see stuff in there. I am commenting partly having had the experience of explaining all this to my domestic focus group of teenagers and they said, “Really? Are you going to get rid of all this stuff for us?” I said, “No, actually, it is quite different”. It is important in our debate to do that because otherwise there is a risk that the Bill comes into disrepute. I look at something like showing the harms to fictional characters. If one has seen the “Twilight” movies, the werewolves do not come off too well, and “Lord of the Rings” is like an orc kill fest.

As regards the point made by the noble Baroness, Lady Harding, about going to the cinema, we allow older teenagers to go to the cinema and see that kind of thing. Post the Online Safety Bill, they will still be able to access it. When we look at something like fictional characters, the Bill is to deal with the harm that is there and is acknowledged regarding people pushing quite vile stuff, whereby characters have been taken out of fiction and a gory image has been created, twisted and pushed to a younger child. That is what we want online providers to do—to prevent an 11 year-old seeing that—not to stop a 16 year-old enjoying the slaughter of werewolves. We need to be clear that that is what we are doing with the priority harms; we are not going further than people think we are.

There are also some interesting challenges around humour and evolving trends. This area will be hard for platforms to deal with. I raised the issue of the Tide pod challenge in Committee. If noble Lords are not familiar, it is the idea that one eats the tablets, the detergent things, that one puts into washing machines. It happened some time ago. It was a real harm and that is reflected here in the “do not ingest” provisions. That makes sense but, again talking to my focus group, the Tide pod challenge has evolved and for older teenagers it is a joke about someone being stupid. It has become a meme. One could genuinely say that it is not the harmful thing that it was. Quite often one sees something on the internet that starts harmful—because kids are eating Tide pods and getting sick—and then over time it becomes a humorous meme. At that point, it has ceased to be harmful. I read it as that filter always being applied. We are not saying, “Always remove every reference to Tide pods” but “At a time when there is evidence that it is causing harm, remove it”. If at a later stage it ceases to be harmful, it may well move into a category where platforms can permit it. It is a genuine concern.

To our freedom of expression colleagues, I say that we do not want mainstream platforms to be so repressive of ordinary banter by teenagers that they leave those regulated mainstream platforms because they cannot speak any more, even when the speech is not harmful, and go somewhere else that is unregulated—one of those platforms that took Ofcom’s letter, screwed it up and threw it in the bin. We do not want that to be an effect of the Bill. Implementation has to be very sensitive to common trends and, importantly, as I know the noble Baroness, Lady Kidron, agrees, has to treat 15, 16 and 17 year-olds very differently from 10, 11 or 12 year-olds. That will be hard.

The other area that jumped out was about encouraging harm through challenges and stunts. That immediately brought “Jackass” to mind, or the Welsh version, “Dirty Sanchez”, which I am sure is a show that everyone in the House watched avidly. It is available on TV. Talking about equality, one can go online and watch it. It is people doing ridiculous, dangerous things, is enjoyed by teenagers and is legal and acceptable. My working assumption has to be that we are expecting platforms to distinguish between a new dangerous stunt such as the choking game—such things really exist—from a ridiculous “Jackass” or “Dirty Sanchez” stunt, which has existed for years and is accessible elsewhere.

The point that I am making in the round is that it is great to have these priority harms in the Bill but it is going to be very difficult to implement them in a meaningful way whereby we are catching the genuinely harmful stuff but not overrestricting. But that is that task that we have set Ofcom and the platforms. The more that we can make it clear to people out there what we are expecting to happen, the better. We are not expecting a blanket ban on all ridiculous teenage humour or activity. We are expecting a nuanced response. That is really helpful as we go through the debate.

[Baroness Fox of Buckley (Non-Afl)]

I just have a question for the noble Lord. He has given an excellent exposé of the other things that I was worried about but, even when he talks about listing the harms, I wonder how helpful it is. Like him, I read them out to a focus group. Is it helpful to write these things, for example emojis, down? Will that not encourage the platforms to over-panic? That is my concern.

[Lord Allan of Hallam (LD)]

On the noble Baroness’s point, that is why I intervened in the debate: so that we are all clear. We are not saying that, for priority content, it is an amber light and not a red light. We are not saying, “Just remove all this stuff”; it would be a wrong response to the Bill to say, “It’s a fictional character being slaughtered so remove it”, because now we have removed “Twilight”, “Watership Down” and whatever else. We are saying, “Think very carefully”. If it is one of those circumstances where this is causing harm—they exist; we cannot pretend that they do not—it should be removed. However, the default should not be to remove everything on this list; that is the point I am really trying to make.

[Baroness Stowell of Beeston (Con)]

My Lords, our debate on this group is on the topic of priority harms to children. It is not one that I have engaged in so I tread carefully. One reason why I have not engaged in this debate is because I have left it to people who know far more about it than I do; I have concentrated on other parts of the Bill.

In the context of this debate, one thing has come up on which I feel moved to make a short contribution: misinformation and disinformation content. There was an exchange between my noble friend Lady Harding and the noble Baroness, Lady Fox, on this issue. Because I have not engaged on the topic of priority harms, I genuinely do not have a position on what should and should not be featured. I would not want anybody to take what I say as support for or opposition to any of these amendments. However, it is important for us to acknowledge that, as much as misinformation and disinformation are critical issues—particularly for children and young people because, as the right reverend Prelate said, the truth matters—we cannot, in my view, ignore the fact that misinformation and disinformation have become quite political concepts. They get used in a way where people often define things that they do not agree with as misinformation—that is, opinions are becoming categorised as misinformation.

We are now putting this in legislation and it is having an impact on content, so it is important, too, that we do not just dismiss that kind of concern as not relevant because it is real. That is all I wanted to say.

[Lord Russell of Liverpool (CB)]

My Lords, I will speak briefly as I know that we are waiting for a Statement.

If you talk to colleagues who know a great deal about the harm that is happening and the way in which platforms operate, as well as to colleagues who talk directly to the platforms, one thing that you commonly hear from them is a phrase that often recurs when they talk to senior people about some of the problems here: “I never thought of that before”. That is whether it is about favourites on Snapchat, which cause grief in friendship groups, about the fact that, when somebody leaves a WhatsApp group, it flags up who that person is—who wants to be seen as the person who took the decision to leave?—or about the fact that a child is recommended to other children even if the company does not know whether they are remotely similar.

If you are 13, you are introduced as a boy to Andrew Tate; if you are a girl, you might be introduced to a set of girls who may or may not share anorexia content, but they dog-whistle and blog. The companies are not deliberately orchestrating these outcomes—it is the way they are designed that is causing those consequences—but, at the moment, they take no responsibility for what is happening. We need to reflect on that.

I turn briefly to a meeting that the noble Lord, Lord Stevenson, and I were at yesterday afternoon, which leads neatly on to some of the comments the noble Baroness, Lady Fox, made, a few moments ago about the far right. The meeting was convened by Luke Pollard MP and was on the strange world known as the manosphere, which is the world of incels—involuntary celibates. As your Lordships may be aware, on various occasions, certain individuals who identify as that have committed murder and other crimes. It is a very strange world.

17:00

I was introduced to two terms that I was not aware of. If you are an incel, you refer to males who are fortunate enough to get on well with ladies as Chads, and ladies who are fortunate enough to get on well with men or boys are apparently known as Stacys. That was something I did not particularly want to learn, but I did. This was the second meeting that Luke Pollard had convened; the people at that meeting were from a huge variety of groups and they all said that it is the only forum they have found in United Kingdom that is pulling all these different elements together. They are acutely aware of how much of a problem this is, and they find that forum incredibly helpful, because nobody else is doing it.

I have asked some of the people gave evidence in that meeting to forward some of their concerns to us, which the noble Lord, Lord Stevenson, and I would like to forward to the Minister and the Bill team. I raise this so as to encourage the Minister to understand the scale of this, what is happening and its effects and then to look at how harms are defined in the Bill and how functionality is looked at, to see whether this live, growing area is dealt with effectively by the Bill.

This takes me into the area of media literacy, which I flag so that the Minister and the Bill team can do some homework. In Scotland, there is a very sensible scheme called Mentors in Violence Prevention. Essentially, it uses the older pupils in the sixth form, who have learned beforehand from other mentors how to talk about and understand the harms they might experience online. They deliver to the younger children the information that they have accumulated. The evidence is that this is infinitely more effective than teachers or outside experts doing it. It is almost peer-to-peer—perhaps a very appropriate approach for your Lordships’ House.

[Lord Clement-Jones (LD)]

I shall be brief, my Lords, because I know we have a Statement to follow. It is a pleasure to follow the noble Lord, Lord Russell. I certainly share his concern about the rise of incel culture, and this is a very appropriate point to raise it.

This is all about choices and the Minister, in putting forward his amendments, in response not only to the Joint Committee but the overwhelming view in Committee on the Bill that this was the right thing to do, has done the right thing. I thank him for that, with the qualification that we must make sure that the red and amber lights are used—just as my noble friend Lord Allan and the noble Baroness, Lady Stowell, qualified their support for what the Minister has done. At the same time, I make absolutely clear that I very much support the noble Baroness, Lady Kidron. I was a bit too late to get my name down to her amendment, but it would be there otherwise.

I very much took to what the right reverend Prelate had to say about the ethics of the online world and nowhere more should they apply than in respect of children and young people. That is the place where we should apply these ethics, as strongly as we can. With some knowledge of artificial intelligence, how it operates and how it is increasingly operating, I say that what the noble Baroness wants to add to the Minister’s amendment seems to be entirely appropriate. Given the way in which algorithms are operating and the amount of misinformation and disinformation that is pouring into our inboxes, our apps and our social media, this is a very proportionate addition. It is the future. It is already here, in fact. So I very strongly support Amendment 174 from the noble Baroness and I very much hope that after some discussion the Minister will accept it.

[Lord Stevenson of Balmacara (Lab)]

My Lords, like the noble Baroness, Lady Harding, I want to make it very clear that I think the House as a whole welcomes the change of heart by the Government to ensure that we have in the Bill the two sides of the question of content that will be harmful to children. We should not walk away from that. We made a big thing of this in Committee. The Government listened and we have now got it. The fact that we do not like it—or do not like bits of it—is the price we pay for having achieved something which is, probably on balance, good.

The shock comes from trying to work out why it is written the way it is, and how difficult it is to see what it will mean in practice when companies working to Ofcom’s instructions will take this and make this happen in practice. That lies behind, I think I am right in saying, the need for the addition to Amendment 172 from the noble Baroness, Lady Kidron, which I have signed, along with the noble Baroness, Lady Harding, and the right reverend Prelate the Bishop of Oxford. Both of them have spoken well in support of it and I do not need to repeat those points.

Somehow, in getting the good of Amendments 171 and 172, we have lost the flexibility that we think we want as well to try to get that through. The flexibility does exist, because the Government have retained powers to amend and change both primary priority content that is harmful to children and the primary content. Therefore, subject to approval through the secondary legislation process, this House will continue to have a concern about that—indeed, both Houses will.

Somehow, however, that does not get to quite where the concern comes from. The concern should be both the good points made by the noble Lord, Lord Russell—I should have caught him up in the gap and said I had already mentioned the fact that we had been together at the meeting. He found some additional points to make which I hope will also be useful to future discussion. I am glad he has done that. He is making a very good point in relation to cultural context and the work that needs to go on—which we have talked about in earlier debates—in order to make this live: in other words, to make people who are responsible for delivering this through Ofcom, but also those who are delivering it through companies, to understand the wider context. In that sense, clearly we need the misinformation/disinformation side of that stuff. It is part and parcel of the problems we have got. But more important even than that is the need to see about the functionality issues. We have come back to that. This Bill is about risk. The process that we will be going through is about risk assessment and making sure that the risks are understood by those who deliver services, and the penalties that follow the failure of the risk assessment process delivering change that we want to see in society.

However, it is not just about content. We keep saying that, but we do not see the changes around it. The best thing that could happen today would be if the Minister in responding accepted that these clauses are good—“Tick, we like them”—but could we just not finalise them until we have seen the other half of that, which is: what are the other risks to which those users of services that we have referred to and discussed are receiving through the systemic design processes that are designed to take them in different directions? It is only when we see the two together that we will have a proper concern.

I may have got this wrong, but the only person who can tell us is the Minister because he is the only one who really understands what is going on in the Bill. Am I not right in saying—I am going to say I am right; he will say no, I am not, but I am, aren’t I?—that we will get to Clauses 208 and 209, or the clauses that used to be 208 and 209, one of which deals with harms from content and the other deals with functionality? We may need to look at the way in which those are framed in order to come back and understand better how these lie and how they interact with that. I may have got the numbers wrong—the Minister is looking a bit puzzled, so I probably have—but the sense is that this will probably not come up until day 4. While I do not want to hold back the Bill, we may need to look at some of the issues that are hidden in the interstices of this set of amendments in order to make sure that the totality is better for those who have to use it.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this has been a useful debate. As the noble Baroness, Lady Kidron, says, because I spoke first to move the government amendments, in effect I got my response in first to her Amendment 174, the only non-government amendment in the group. That is useful because it allows us to have a deeper debate on it.

The noble Baroness asked about the way that organisations such as the British Board of Film Classification already make assessments of sexualised content. However, the Bill’s requirement on service providers and the process that the BBFC takes to classify content are not really comparable. Services will have far less time and much more content to consider them the BBFC does, so will not be able to take the same approach. The BBFC is able to take an extended time to consider maybe just one scene, one image or one conversation, and therefore can apply nuance to its assessments. That is not possible to do at the scale at which services will have to apply the child safety duties in the Bill. We therefore think there is a real risk that they would excessively apply those duties and adversely affect children’s rights online.

I know the noble Baroness and other noble Lords are rightly concerned with protecting rights to free expression and access to information online for children and for adults. It is important that we strike the right balance, which is what we have tried to do with the government amendments in this group.

[Baroness Kidron (CB)]

To be clear, the point that I made about the BBFC was not to suggest a similar arrangement but to challenge the idea that we cannot categorise material of a sexualised nature. Building on the point made by the noble Lord, Lord Allan, perhaps we could think about it in terms of the amber light rather than the red light—in other words, something to think about.

[Lord Parkinson of Whitley Bay (Con)]

I certainly will think about it, but the difficulty is the scale of the material and the speed with which we want these assessments to be made and that light to be lit, in order to make sure that people are properly protected.

My noble friend Lord Moylan asked about differing international terminology. In order for companies to operate in the United Kingdom they must have an understanding of the United Kingdom, including the English-language terms used in our legislation. He made a point about the Equality Act 2010. While it uses the same language, it does not extend the Equality Act to this part of the Bill. In particular, it does not create a new offence.

The noble Baroness, Lady Fox, also mentioned the Equality Act when she asked about the phraseology relating to gender reassignment. We included this wording to ensure that the language used in the Bill matches Section 7(1) of the Equality Act 2010 and that gender reassignment has the same meaning in the Bill as it does in that legislation. As has been said by other noble Lords—

[Baroness Fox of Buckley (Non-Afl)]

I clarify that what I said was aimed at protecting children. Somebody corrected me and asked, “Do you know that this says ‘abusive’?”—of course I do. What I suggested was that this is an area that is very contentious when we talk about introducing it to children. I am thinking about safeguarding children in this instance, not just copying and pasting a bit of an Act.

17:15

[Lord Moylan (Con)]

I take this opportunity to ask my noble friend the Minister a question; I want some clarity about this. Would an abusive comment about a particular religion—let us say a religion that practised cannibalism or a historical religion that sacrificed babies, as we know was the norm in Carthage—count as “priority harmful content”? I appreciate that we are mapping the language of the Equality Act, but are we creating a new offence of blasphemy in this Bill?

[Lord Parkinson of Whitley Bay (Con)]

As was pointed out by others in the debate, the key provision in Amendment 172 is subsection (2) of the proposed new clause, which relates to:

“Content which is abusive and which targets any of the following characteristics”.


It must both be abusive and target the listed characteristics. It does not preclude legitimate debate about those things, but if it were abusive on the basis of those characteristics—rather akin to the debate we had in the previous group and the points raised by the noble Baroness, Lady Kennedy of The Shaws, about people making oblique threats, rather than targeting a particular person, by saying, “People of your characteristic should be abused in the following way”—it would be captured.

[Baroness Fox of Buckley (Non-Afl)]

I will keep this short, because I know that everyone wants to get on. It would be said that it is abusive to misgender someone; in the context of what is going on in sixth forms and schools, I suggest that this is a problem. It has been suggested that showing pictures of the Prophet Muhammad in an RE lesson—these are real-life events that happen offline—is abusive. I am suggesting that it is not as simple as saying the word “abusive” a lot. In this area, there is a highly contentious and politicised arena that I want to end, but I think that this will exacerbate, not help, it.

[Lord Moylan (Con)]

My noble friend seemed to confirm what I said. If I wish to be abusive—in fact, I do wish to be abusive—about the Carthaginian religious practice of sacrificing babies to Moloch, and I were to do that in a way that came to the attention of children, would I be caught as having created “priority harmful content”? My noble friend appears to be saying yes.

[Lord Parkinson of Whitley Bay (Con)]

Does my noble friend wish to do that and direct it at children?

[Lord Moylan (Con)]

With respect, it does not say “directed at children”. Of course, I am safe in expressing that abuse in this forum, but if I were to do it, it came to the attention of children and it were abusive—because I do wish to be abusive about that practice—would I have created “priority harmful content”, about which action would have to be taken?

[Baroness Kidron (CB)]

I will leap to the Minister’s defence on this occasion. I remind noble colleagues that this is not about individual pieces of content; there would have to be a consistent flow of such information being proffered to children before Ofcom would ask for a change.

[Lord Moylan (Con)]

My Lords, these words have obviously appeared in the Bill in one of those unverified sections; I have clicked the wrong button, so I cannot see them. Where does it say in Amendment 172 that it has to be a consistent flow?

[Baroness Harding of Winscombe (Con)]

May I attempt to assist the Minister? This is the “amber” point described by the noble Lord, Lord Allan: “priority content” is not the same as “primary priority content”. Priority content is our amber light. Even the most erudite and scholarly description of baby eating is not appropriate for five year-olds. We do not let it go into “Bod” or any of the other of the programmes we all grew up on. This is about an amber warning: that user-to-user services must have processes that enable them to assess the risk of priority content and primary priority content. It is not black and white, as my noble friend is suggesting; it is genuinely amber.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, we may be slipping back into a Committee-style conversation. My noble friend Lord Moylan rightly says that this is the first chance we have had to examine this provision, which is a concession wrung out of the Government in Committee. As the noble Lord, Lord Stevenson, says, sometimes that is the price your Lordships’ House pays for winning these concessions, but it is an important point to scrutinise in the way that my noble friend Lord Moylan and the noble Baroness, Lady Fox, have done.

I will try to reassure my noble friend and the noble Baroness. This relates to the definition of a characteristic with which we began our debates today. To be a characteristic it has to be possessed by a person; therefore, the content that is abusive and targets any of the characteristics has to be harmful to an individual to meet the definition of harm. Further, it has to be material that would come to the attention of children in the way that the noble Baronesses who kindly leapt to my defence and added some clarity have set out. So my noble friend would be able to continue to criticise the polytheistic religions of the past and their tendencies to his heart’s content, but there would be protections in place if what he was saying was causing harm to an individual—targeting them on the basis of their race, religion or any of those other characteristics—if that person was a child. That is what noble Lords wanted in Committee, and that is what the Government have brought forward.

My noble friend and others asked why mis- and disinformation were not named as their own category of priority harmful content to children. Countering mis- and disinformation where it intersects with the named categories of primary priority or priority harmful content, rather than as its own issue, will ensure that children are protected from the mis- and disinformation narratives that present the greatest risk of harm to them. We recognise that mis- and disinformation is a broad and cross-cutting issue, and we therefore think the most appropriate response is to address directly the most prevalent and concerning harms associated with it; for example, dangerous challenges and hoax health advice for children to self-administer harmful substances. I assure noble Lords that any further harmful mis- and disinformation content will be captured as non-designated content where it presents a material risk of significant harm to an appreciable number of children.

In addition, the expert advisory committee on mis- and disinformation, established by Ofcom under the Bill, will have a wide remit in advising on the challenges of mis- and disinformation and how best to tackle them, including how they relate to children. Noble Lords may also have seen that the Government have recently tabled amendments to update Ofcom’s statutory media literacy duty. Ofcom will now be required to prioritise users’ awareness of and resilience to misinformation and disinformation online. This will include children and their awareness of and resilience to mis- and disinformation.

My noble friend Lady Harding of Winscombe talked about commercial harms. Harms exacerbated by the design and operation of a platform—that is, their commercial models—are covered in the Bill already through the risk assessment and safety duties. Financial harm, as used in government Amendment 237, is dealt with by a separate legal framework, including the Consumer Protection from Unfair Trading Regulations. This exemption ensures that there is no regulatory overlap.

The noble Lord, Lord Russell of Liverpool, elaborated on remarks made earlier by the noble Lord, Lord Stevenson of Balmacara, about their meeting looking at the incel movement, if it can be called that. I assure the noble Lord and others that Ofcom has a review and report duty and will be required to stay on top of changes in the online harms landscape and report to government on whether it recommends changes to the designated categories of content because of the emerging risks that it sees.

The noble Baroness, Lady Kidron, anticipated the debate we will have on Monday about functionalities and content. I am grateful to her for putting her name to so many of the amendments that we have brought forward. We will continue the discussions that we have been having on this point ahead of the debate on Monday. I do not want to anticipate that now, but I undertake to carry on those discussions.

In closing, I reiterate what I know is the shared objective across your Lordships’ House—to protect children from harmful content and activity. That runs through all the government amendments in this group, which cover the main categories of harmful content and activity that, sadly, too many children encounter online every day. Putting them in primary legislation enables children to be swiftly protected from encountering them. I therefore hope that noble Lords will be heartened by the amendments that we have brought forward in response to the discussion we had in Committee.

Amendment 31 agreed.

Supply and Appropriation (Main Estimates) (No.2) Bill

1st reading
Thursday 6th July 2023 Lords Chamber

First Reading

17:26

The Bill was brought from the Commons, endorsed as a money Bill, and read a first time.

Iran

Thursday 6th July 2023 Lords Chamber

Statement

17:27

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, with the leave of the House, I shall repeat a Statement made by my right honourable friend the Foreign Secretary in the other place on the threat that Iran poses to the United Kingdom and the actions that the Government are taking to counter it. The Statement is as follows:

“Since protests began in Iran last September, the Iranian regime has dramatically increased its attempts to silence dissent, which have never been confined to Iranian territory. While our police, intelligence and security agencies have been confronting these threats for many years, their seriousness and intensity have increased in recent months. In the last 18 months, there have been at least 15 credible threats to kill or kidnap British nationals and others living in the United Kingdom by the Iranian regime.

We have evidence that Farsi-language media outlets operating out of the United Kingdom and the individuals who work for them have also been targeted. One such company is Iran International. As my right honourable friend the Security Minister told the House on 20 February, Iran International’s employees have been threatened with kidnap and murder, and they have been subjected to a debilitating campaign of aggressive online harassment. Such threats are a direct attack on press and media freedom, and a direct attack on public safety. This Government will never tolerate such threats on British soil or on the territory of our friends and allies.

We know from working closely with our international partners that these Iranian menaces extend beyond the UK to the rest of Europe and the wider world. In March this year, an Iranian-orchestrated plot was stopped in Athens. We have seen similar attempts in the United States, Türkiye, France and Denmark. Such brazen activity is unacceptable. These actions demonstrate the Iranian regime’s increasing desperation in the face of its unpopularity at home and isolation abroad.

The first duty of His Majesty’s Government is to protect the British people and those who have made their home here in the United Kingdom. Whenever necessary, the Government will not hesitate to defend the freedom of the press. My right honourable friend the Home Secretary leads our work on countering Iranian state threats. Our police, security and intelligence agencies are working together around the clock to identify, deter and prevent Iranian threats to our national security. My right honourable friend the Security Minister leads work to protect the integrity of our democracy in the UK from foreign interference through the Government’s Defending Democracy Taskforce.

The Foreign, Commonwealth and Development Office leads our work on sanctions. We have designated more than 350 individuals and organisations linked to the Iranian regime, covering its military, security and judiciary. We have sanctioned the Islamic Revolutionary Guard Corps in its entirety. Our diplomatic network is co-ordinating with our friends and allies around the world to reinforce our response, including the US, Australia, New Zealand, Canada and the European Union.

The cowardly attacks planned by the Iranian regime on British soil violate the most elementary rules of diplomatic relations between states. I have twice summoned Iran’s most senior diplomat in London to explain his Government’s activities, most recently following Iran International’s decision to temporarily relocate its broadcasting service. It is intolerable that any media outlet should be forced to leave the United Kingdom because the Iranian regime is threatening to kidnap and murder its journalists.

I am in no doubt that every part of this House will share my sense of outrage. There is clear evidence that the Iranian regime continues to prepare operations against individuals in Europe and beyond. We have made representations to the Iranian Foreign Ministry. We emphasised, in no uncertain terms, our determination to pursue any Iranian agent who would harm the UK or our allies. We will also continue to work with our international partners to identify, expose and counter the threats made against us.

The UK is clear that we need to go further, so today I am announcing to the House further measures that constitute a toolkit I would prefer not to use, but the decision on whether I do so is firmly in the hands of the Iranian regime. First, we will establish a new Iran sanctions regime. This will be the first wholly new geographic autonomous sanctions regime that the United Kingdom has created since leaving the European Union. It will give us new and enhanced powers to counter Iran’s hostile and destabilising activities in the UK and around the world, allowing us to impose asset freezes and travel bans on more of Iran’s decision-makers and those doing its bidding.

In particular, we will have broader powers to target those involved in the regime’s efforts: to undermine peace, stability and security in the region and internationally; to proliferate arms or weapons technology from Iran; to undermine democracy, respect for the rule of law and good governance; and to carry out other hostile activities towards the UK and our partners, including threats to our people, property or national security. We expect to bring the necessary legislation to Parliament later this year.

Secondly, I can tell that House that today we have designated a further 13 individuals and entities responsible for serious human rights violations inside Iran. This package of sanctions includes: five senior officials from Iran’s notorious prison system, which is rife with torture and abuse of prisoners; further measures targeting the Supreme Council of the Cultural Revolution, as the organisation that enforces social and cultural norms that oppress Iranian citizens; and six key actors responsible for suppressing freedom of expression online, including the Islamic Revolutionary Guard Corps’ cyber defence command and the Supreme Council of Cyberspace.

Our actions are a direct response to the escalation of Iran’s reprehensible behaviour in the United Kingdom. We are not seeking to escalate; our aim is to prevent and deter hostile Iranian activity on British soil and on the territory of our partners and allies. Iran is selling drones to Russia. It attacks its neighbours and even attacks its own people when they stand up for human rights and the most basic freedoms. It is my fervent hope that there will be brighter days ahead for the relationship between our two countries, but we cannot take any steps in that direction until the regime ceases its deplorable activities. Until that day comes, we remain steadfast in our efforts to stop Iranian aggression and protect the United Kingdom. I commend this Statement to the House.”

17:35

[Lord Collins of Highbury (Lab)]

My Lords, I thank the Minister for repeating the Foreign Secretary’s Statement. The recent actions of the Government of Iran since the protests began are another signal that they are acting outside the rules-based order that the international system relies on. As I warned during previous debates in recent years, in response to the detention of prisoners, the attacks on merchant vessels and the flagrant human rights violations, we must show that these actions have consequences. However, we also have a responsibility to protect the United Kingdom and British nationals, and to respond to the continuing threats of violence by the Iranian regime. I therefore begin by asking the Minister to briefly comment on how the FCDO is working with the Home Office, and whether he has considered proposals for a state threats cell to co-ordinate the response. We have just been talking about the actions of the Chinese Government and the Chinese Communist Party, and it would be good to have a clearer response in relation to the Iranian regime.

Unfortunately, these threats are not confined to the United Kingdom; as the Minister points out, the threats we face are being replicated against nationals of our allies, in Europe and across the world. Having assumed the presidency of the UN Security Council, the UK is in a unique position to co-ordinate the response to the behaviour of this rogue Government, and I urge the Minister to see that as a responsibility, not just an opportunity. So although I welcome the commitment to work with the US, Australia, New Zealand, Canada and the EU, I begin by asking how the United Kingdom will broaden our response to include other international counterparts.

I turn to the Minister’s main announcement, the new sanctions regime. He will know that I have previously welcomed the designations of more than 350 individuals and organisations, and I very much welcome today’s announcement of the new designations, as well as the new regime. However, I hope the Minister can clarify just how it will operate.

First, will he comment on what form the legislation will take? Will we have primary or secondary legislation, and how quickly can we expect it to be implemented? I noted that he said it will be brought forward later in the year. Will it be in the current or the next Parliament? Speed is absolutely of the essence, because we are responding to events that happen very quickly. Secondly, given that the Minister refers to the new regime as autonomous, does he remain committed to the principle —I know that he does—that these sanctions are effective only if they are implemented in conjunction with the action of our allies? How can we ensure that this is embedded in the statutory framework and how will we ensure a co-ordinated response? Finally, I know the Minister agrees that this must be a constantly evolving document to respond to the nature of the threat, and I know he is committed to engaging with Parliament and civil society organisations to extend designations when possible. Sanctions are one of the most effective tools at our disposal but, where necessary, we must be prepared to pair them with other action.

The Minister specifically referred to the sanctioning of the Islamic Revolutionary Guard Corps. I turn to the issue—I know he will expect this question—of updating us on the proscription of the IRGC, as a terrorist organisation, and whether the Government are still working on a legislative solution to this. I heard the Foreign Secretary in the other place this afternoon suggest that we should not worry about proscription because many of the actions covered by such a measure are included in the sanctions regime. But if our allies are proscribing the IRGC, why are we not doing so? Why are we not working in concert? I know that there are similar actions, but I think it is important that we act in complete solidarity with our allies in addressing these concerns.

I end by returning to how the UK has a responsibility and an opportunity to take a leading role on Iran at the UN. While our first duty will always be our national security, we must also stand by the people of Iran who have faced a brutal crackdown since September. I repeat the call of my right honourable friend the shadow Foreign Secretary for the UK to ask the UN Human Rights Council to investigate urgently Iran’s crackdown on protesters. I ask the Minister also to update the House on the UK’s contribution at the UN in monitoring Iran’s nuclear programme and the implementation of UN Security Council Resolution 2231, in order to hold the Iranian regime to account.

[Baroness Northover (LD)]

My Lords, I too thank the Minister for repeating the Statement and, from these Benches, we welcome it; there is clearly cross-party agreement on this, as the noble Lord, Lord Collins, made clear.

As the Foreign Secretary said in the other place today, our quarrel is not with the Iranian people but with their present leadership and the revolutionary guard, which has carried out so many major human rights abuses. It is appalling to see the increased oppression that has occurred over recent times, especially of women. Those who are standing up for rights and freedoms in Iran are exceptionally brave, and many have suffered unbearable consequences. Clearly, the Iranian regime is, as we have heard, reaching out beyond its territories in the attempt to stifle dissent. It is chilling to hear that, since the start of 2022, there have been more than 15 credible threats to kill or kidnap British or UK-based individuals by the Iranian regime.

Iran is not the only regime to seek to do so, as we know, but I have a number of questions to raise. Can the Minister spell out the extent to which we are moving in lockstep with the EU and other partners? I would expect nothing less from him. The Minister always and rightly makes clear that sanctions are most effective when they are implemented jointly with others. Can he spell out more details, and are there areas of difference? The Government are putting in place a further sanctions regime and not proscribing the revolutionary guard, as the noble Lord, Lord Collins, has just pointed out. Is this because that could limit any engagement with it? We agree, after all, that it is the driving force in Iran, in particular in relation to the crackdown on human rights.

As the noble Lord, Lord Collins, did, I ask about the JCPOA. The UK and the EU rightly and hugely regretted the decision by President Trump to pull out of the JCPOA on the grounds that the good was not the best, opting as a result for the worst. What progress are we making to restore some effective control over Iran’s nuclear ambitions? Predictably, by pulling out, Iran took that as an opportunity to develop its programme further.

Like the noble Lord, Lord Collins, I would like to ask about others who are oppressed as a result of Iran’s actions, and I would like to ask about the dual nationals in particular. I expect the Minister will have heard Richard Ratcliffe, who battled so long and hard, and eventually successfully, for Nazanin’s release. Of course, many of us here raised her case. Richard has said that the Government have not put the cases of the dual nationals high enough in their list of priorities. It is therefore very concerning to hear the Foreign Secretary in the other place—and I also heard him this afternoon—say that his last contact in this regard with relevant Iranian Ministers or others was in 2021. That hardly shows that these cases are a high priority for the Government.

The Foreign Secretary did mention that the Minister has been in more recent contact, so could he please update us? And could he please update us particularly in relation to Morad Tahbaz, who it was assumed would be released much earlier with the other dual nationals and whose health is now very poor?

We know about the extreme pressure on the BBC’s Persian service, and the Statement mentions press freedom. What can the Minister tell us about how the BBC’s Persian service can best be supported and defended? It is not enough simply to urge the BBC to continue, which is what the Foreign Secretary seemed to indicate this afternoon. What assistance can the Government give?

The Minister will know that, in recent times, there was the surprising slight rapprochement between Iran and Saudi Arabia brought about by Chinese diplomatic intervention. The hope has been that this will help bring forward a reduction of conflict in, for example, Yemen. But what effect does the Minister see in terms of the position of the Iranian Government more generally as a result of this? In the Statement, the Government seem not to be optimistic, since the new sanctions will be addressing Iranian efforts to undermine peace, stability and security in the region and internationally. We know that Iran is supplying drones to Russia and possibly also to regimes in various African countries. Again, the new sanctions regime, generally speaking, addresses this.

We know of rumours of oil going out via various routes, despite sanctions. The Minister will be aware, I am sure, of Iranian actions that have interrupted commercial traffic, including tankers in the Gulf. What action are the Government taking with international partners on this? The United States has said that its navy intervened to prevent Iran seizing two commercial tankers in the Gulf of Oman on Wednesday. This matters, because about a fifth of the world’s supply of seaborne crude oil and oil products passes through the Strait of Hormuz.

The Minister will be acutely aware of the tinderbox that is this region and the actions of the various players within it. The Iranian people have shown great courage in seeking to stand up to the human rights abuses from which they are suffering. It had been hoped that the JCPOA would pave the way for better relations with Iran, for mutual benefit, yet even this is fast reaching a crisis point. At this key time, I look forward to the Minister’s response.

[Lord Ahmad of Wimbledon (Con)]

My Lords, first, I thank the noble Lord, Lord Collins, and the noble Baroness, Lady Northover, for their support for the actions that the Government have taken. Both raised the issue, understandably, of the IRGC proscription. As both noble Lords will know, we have sanctioned the IRGC in its entirety. The separate list of terrorist organisation proscriptions is kept under review. I cannot comment further than this. What I can say to the noble Lord, Lord Collins, directly, though, is that of course we co-ordinate with our key allies on the actions we are taking. Indeed, on the actions we have taken today, we have worked very closely with our key colleagues across the European Union and the US. Recently, we shared in advance the actions we would be taking.

The issue of state threats is quite specific. It has ratcheted up the challenge that we face. Also, as the noble Baroness, Lady Northover, said, on the direct security threat, we have witnessed for a long time the destabilising efforts of Iran within the region. However, this is not just about Iran. We have seen the suppression of its own population, which the noble Baroness referred to. We have seen the suppression and continuing instability through proxies, particularly in the Yemen conflict, which I will come on to in a moment. We have also seen further action on non-compliance on the JCPOA, which the noble Baroness mentioned. We have kept it on the table. I appreciate and thank the noble Baroness for recognising, even when the previous US Administration pulled back, that we kept it on the table. This is still the live agreement. It has been there for the Iranians to sign since autumn 2022. It is not perfect, as we all know. It does not cover everything—for example, ballistic missiles—but it is there.

Linked to that, we have been engaging with key European partners, the US and key regional partners on the importance of Iran returning to some semblance of ensuring compliance with this important issue in fulfilment of the key objective that Iran does not proceed to an enrichment which allows it to produce nuclear weapons. That must remain a fundamental priority for all of us.

The noble Lord, Lord Collins, raised the issue of the legislation and whether we will bring this forward at the earliest opportunity. He is right, of course, that we must do this as soon as possible. We have certainly been the leaders on this in terms of country designation, which the noble Baroness, Lady Northover, asked about. Sharing what we are doing with our key allies ensures co-ordination. The instruments that we will use will be secondary legislation. Statutory instruments will be introduced in this respect. I will keep both Front Benches informed—not just in the Chamber—of progress in this regard.

I take on board the importance of a state threat cell, which the noble Lord, Lord Collins, talked about. We work very closely with the Home Office in co-ordinating our work with it and with other key departments. That continues to be the case. There are different committee structures already set up and the concept which the noble Lord proposes is already ingrained and embellished in some of the work that we are doing. I assure noble Lords that we do talk to each other across government departments.

On the issue of the UN, I have just checked with the Box. Our United Kingdom ambassador to the UN is currently live, talking about Resolution 2231 and on the broader debate on the role of Iran. It qualifies what the noble Baroness said about the ongoing and growing instability caused through the use of drones in Russia’s war on Ukraine. We are taking leadership on that as presidents of the UN Security Council. I am sure that noble Lords noticed that this was debated yesterday at the Human Rights Council. I issued a statement thereafter about the appalling and abhorrent practice that Iran has undertaken in terms of executions of its own people and the continuing suppression. We have called that out with about 56 countries that supported the statement in that respect. These actions are co-ordinated. In answer to the noble Lord, Lord Collins, in this respect we will continue to work as we have done.

On the issue of dual nationals and access, I am engaging directly but also, if the noble Baroness will excuse me, at times quite discreetly on these important issues with key allies. She will be reassured to know that I take this as a personal priority on my patch. Yes, I did hear the brave and courageous Richard Ratcliffe. I gave evidence to that inquiry on detainees—or hostage taking, as it was termed by the Foreign Affairs Committee. It must be a priority of any Minister and any Government to ensure that we are fully aware of and engaged with the families supporting them. I have recently engaged with them, including those in the case of Mr Tahbaz. I continue to engage frequently with his key family members. This morning, in another part of the world, I spoke with the mother of Mr Alaa el-Fattah, from Egypt. It is important that these meetings are held at ministerial level, to show that there is direct access. It not only supports the families but sends a very strong message to the Governments, some of whom are our partners and others who we have a direct challenge with, that this is not just about a family being on their own.

We will of course take very seriously the findings of the Foreign Affairs Committee review on this. I will never say we are doing the perfect job, and there are always things we can do. Finally, as I said right at the start, I will continue to update noble Lords—the Front Benches in particular—on further steps we may be taking.

17:55

[Lord Lamont of Lerwick (Con)]

My Lords, I draw the House’s attention to my register of interests entry, particularly as the trade envoy to Iran. I very strongly support what the Minister and the Government have said. Does the Minister agree that this is an appalling throwback to the way Iran behaved immediately after the Iranian Revolution in 1979, when there were a lot of attacks and assassinations in European countries, particularly France? It is utterly intolerable that a state that calls itself a legitimate Government should seek to attack people within their own country, on British soil.

The Minister referred to the new measures as a toolkit. Can he say precisely in what way this differs in its scope, and not just in the number of entities, from the regime of sanctions that we have had in the past? Can he also say something about the role of the E3? Does the E3, including France and Germany, which played an important part in developing our negotiations, particularly over the nuclear deal, still exist? Or, now that we are outside the EU, has that fallen by the wayside and we have to co-ordinate with the EU more generally?

Can the Minister also tell me whether the Charity Commission has been looking at some of the Iranian cultural and religious institutions in this country, to make sure that they comply strictly to their charitable objectives and are not supporting any of these utterly deplorable acts and threats that we have seen in this country?

Lastly, on the JCPOA, the Minister described it as being alive. He will know, as will other Members of the House, that there have been a lot of reports that America is trying to develop an alternative to the JCPOA—a more informal, less detailed agreement, but one that would freeze the present position. I wonder whether he can comment on that, though I have my doubts that he will be able to or want to.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I will take each of the issues in turn. First, on the governance and the announcement made today, this is a new Iran-specific sanctions regime, which is, in terms of the geography, the first autonomous one. We have had rollovers of what we did with the European Union, but this is specific to Iran. When we have previously sanctioned, we have done so under the so-called Magnitsky-style sanctions for human rights violations. That is why the Foreign Secretary was able to announce a further 13 designations under that governance structure of the human rights sanctions regime.

On the issue of charities, we of course work very closely with the Charity Commission. Without going into further details, there is an ongoing review of all organisations that operate to ensure that they adhere to the rules of the Charity Commission. On the suppression of communities within Iran, it is startling and abhorrent that in 2022 Iran executed at least 576 people. That is a minimum figure and is nearly double the previous year. The latest assessments in 2023 indicate that the rate of executions continues to climb, I think to circa 300 already this year. A lot of these executions have what can only be described as a fragile basis. Our long-standing view on the death penalty is very clear: we oppose it. Equally, it is shocking to see that these are young people, often men, who have committed nothing but protest. Even some who have brought glory to Iran are now subject to this most abhorrent of measures.

I referred to the JCPOA as a live deal in as much as it is the one on the table. E3 co-operation continues. As I said, we continue to engage at official level. There is much speculation about, but I will resist the temptation to comment on it; my noble friend will appreciate that. Its primary objective must be non-proliferation and that Iran does not progress on to acquiring nuclear weapons. The JCPOA provides those provisions. As I said, it still awaits a key signature: that of Iran.

[Viscount Stansgate (Lab)]

My Lords, I thank the Minister for repeating the Statement. The House will support and understand the measures that have been announced. The Statement refers to

“other hostile activities towards the UK and our partners”.

Can the Minister confirm that this includes cyberattacks and cyberwarfare conducted from within Iran, whether the actors are state actors or bad actors operating from within Iran?

[Lord Ahmad of Wimbledon (Con)]

I can answer that: yes, we have recognised, both privately and publicly, that there are state actors and others who seek to target the United Kingdom and our key allies. Technology is a new tool, and we need to be very vigilant on mitigation to ensure that the private sector and our public sector services are fully protected.

[Lord Stevens of Birmingham (CB)]

The UK Government rightly proscribed Hezbollah in 2019 and Hamas in 2021, both of which receive material support from the Islamic Revolutionary Guard Corps. Can the Minister say whether there are circumstances in which proscription of the Islamic Revolutionary Guard Corps would be contemplated? If so, what are they?

[Lord Ahmad of Wimbledon (Con)]

My Lords, as my right honourable friend the Foreign Secretary and I have said, on whether the IRGC is sanctioned in its completeness, we take any issue of proscribing organisations seriously. It is very much a decision for the Home Office, as the noble Lord will be aware, but we co-ordinate our activities extensively. Any decision we take in the future remains an option for us to consider, but I do not want to go further than that, nor would noble Lords expect me to.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I join the general welcome for the government actions reported in the Statement and pick up a point made by the noble Baroness, Lady Northover, about the rapprochement between Iran and Saudi Arabia, which is reportedly mediated by China and is reflected in the meeting between their Oil Ministers yesterday on the sidelines of the OPEC conference in Vienna. Can the Minister tell me whether the Government are reconsidering UK arms sales to Saudi Arabia in the light of these relationships, given that arms sales totalled, in an official declaration, £7.9 billion since the bombing of Yemen started in March 2015? The Campaign Against Arms Trade estimates that the total is £23 billion.

In that context—the actions of the Iranian state that have provoked this reaction by the British Government—what impact does the Minister see on the war in Yemen and the terrible humanitarian conditions there, given that it is one of the world’s worst humanitarian crises? It is also an enormous environmental threat, in the light of the sadly misnamed tanker, the “Safer”, off Sanaa. I do not know whether the Minister can update me, either now or in writing, because the latest information I could find was talk of a UN mission to pump the 1.1 million barrels of oil out of the “Safer”. At the end of May it was reported that this was about to start, but there has been no report since then. How is the behaviour of the Iranian regime, and indeed of the Saudis, likely to impact on attempts to defuse this environmental time bomb?

[Lord Ahmad of Wimbledon (Con)]

My Lords, yes, I acknowledge that. The noble Baroness, Lady Northover, also asked about the Saudis and the new deal that was signed between the Saudis and Iran. I was in Saudi Arabia recently, in Riyadh, and met some of the key people involved in the direct negotiations with the Houthis. What I can share with the noble Baroness is that since that deal has been signed, which I asked directly of the Saudi Minister who visited on Monday, a month on, he smiled and said, “We will wait and see how stabilisation works in the region”. Thankfully, we have seen, through some of the work done directly by the Kingdom of Saudi Arabia, a fragile peace that has been sustained in Yemen. I have had extensive meetings with various representatives of the Yemeni Government, including, this week, the Prime Minister. We have also met various leaders, including the Foreign Minister. When I was in Saudi Arabia, I met the Saudi Arabian ambassador, Mohammed bin Jaber, who is leading the direct engagement with the Houthis and the other parties within Yemen.

While the noble Baroness is correct and we stand by our strong humanitarian support for Yemen, the situation is improving and we are playing our part, directly and through the UN, to ensure that the UN-mandated process is further strengthened by the Saudis in this respect. While I hear what the noble Baroness says about support for its arms industry and our defence sales, those are carried out under a rigorous programme and practice. But it is important to recognise where there is progress. In what is a challenging situation of fragility across the Middle East and Yemen, we are seeing progress on the ground in accessibility and reconstruction, led primarily by some of the Kingdom of Saudi Arabia’s efforts.

If I may just pick up the point raised by the noble Baroness, Lady Northover, about the US and the interventions, our militaries work very closely. Earlier this year, regrettably and tragically, we again saw the shipment of arms from Iran through the Gulf to supply the Houthi machine, but we were able to intercept and we have been able to share information with key Gulf partners on the interceptions that we have made and to make the case for the importance of ensuring that we can stop this arms flow from Iran.

On the FSO “Safer”—which is an Arabic word that translates in an Anglicised way—we want to make the “Safer” safer. The first step was very much about money, and that money has now been gathered. The UN, using British expertise and that of other nations, is working on ensuring that the environmental catastrophe that would happen if the tanker’s load was shed across the Gulf is being directly dealt with. A lot of work is being done in stabilising the vessel before any operations can begin. While I am not going to tempt fate and say there is good news, there has been some real progress and the first thing was about ensuring the financing was in place, which I can assure the noble Baroness is very much now in situ.

Online Safety Bill

Report stage
Thursday 6th July 2023 Lords Chamber

Report (1st Day) (Continued)

18:08

Clause 6: Providers of user-to-user services: duties of care

Amendment 32

Moved by

[Lord Parkinson of Whitley Bay]

32: Clause 6, page 5, line 29, at end insert—
“(ba) the duties about assessments related to adult user empowerment set out in section (Assessment duties: user empowerment),”Member’s explanatory statement
This amendment ensures that the new duties in the new Clause proposed after Clause 11 in my name are imposed on providers of Category 1 services.

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

My Lords, as noble Lords will be aware, the Government removed the legal but harmful provisions from the Bill in another place, given concerns about freedom of expression. I know that many noble Lords would not have taken that approach, but I am grateful for their recognition of the will of the elected House in this regard as well as for their constructive contributions about ways of strengthening the Bill while continuing to respect that.

I am therefore glad to bring forward a package of amendments tabled in my name relating to adult safety. Among other things, these strengthen our existing approach to user empowerment and terms of service by rebalancing the power over the content adults see and interact with online, moving the choice away from unaccountable technology companies and towards individual users.

First, we are introducing a number of amendments, which I am pleased to say have the support of the Opposition Front Bench, which will introduce a comprehensive duty on category 1 providers to carry out a full assessment of the incidence of user empowerment content on their services. The amendments will mean that platforms can be held to account by Ofcom and their users when they fail to assess the incidence of this kind of content on their services or when they fail to offer their users an appropriate ability to control whether or not they view it.

Amendments 19 to 21 and 26—I am grateful to noble Lords opposite for putting their names to them—will strengthen the user empowerment content duty. Category 1 providers will now need proactively to ask their registered adult users how they would like the control features to be applied. We believe that these amendments achieve two important aims that your Lordships have been seeking from these duties: first, they ensure that they are more visible for registered adult users; and, secondly, they offer better protection for young adult users.

Amendments 55 and 56, tabled by the noble Lord, Lord Clement-Jones, my noble friend Lord Moylan and the noble Baroness, Lady Fox of Buckley, seek to provide users with a choice over how the tools are applied for each category of content set out in Clause 12(10), (11) and (12). The legislation gives platforms the flexibility to decide what tools they offer in compliance with Clause 12(2). A blanket approach is unlikely to be consistent with the duty on category 1 services to have particular regard to the importance of protecting users’ freedom of expression when putting these features in place. Additionally, the measures that Ofcom will recommend in its code of practice must consider the impact on freedom of expression so are unlikely to be a blanket approach.

Amendments 58 and 63 would require providers to set and enforce consistent terms of service on how they identify the categories of content to which Clause 12(2) applies; and to apply the features to content only when they have reasonable grounds to infer that it is user empowerment content. I assure noble Lords that the Bill’s freedom of expression duties will prevent providers overapplying the features or adopting an inconsistent or capricious approach. If they do, Ofcom can take enforcement action.

Amendments 59, 64 and 181, tabled by the noble Lord, Lord Clement-Jones, seek to require that the user empowerment and user verification features are provided at no cost. I reassure the noble Lord that the effect of these amendments is already achieved by the drafting of Clause 12. Category 1 providers will be compliant with their duties only if they proactively ask all registered users whether or not they want to use the user empowerment content features, which would not be possible with a paywall. Amendment 181 is similar and applies to user verification. While the Bill does not specify that verification must be free of charge, category 1 providers can meet the duties in the Bill only by offering all adult users the option to verify themselves.

Turning to Amendment 204, tabled by the noble Baroness, Lady Finlay of Llandaff, I share her concern about the impact that self-harm and suicide content can have. However, as I said in Committee, the Bill goes a long way to provide protections for both children and adults from this content. First, it includes the new criminal offence of encouraging or assisting self-harm. This then feeds through into the Bill’s illegal content duties. Companies will be required to take down such content when it is reported to them by users.

Beyond the illegal content duties, there are specific protections in place for children. The Government have tabled amendments designating content that encourages, promotes or provides instructions as a category of primary priority content, meaning that services will have to prevent children of all ages encountering it. For adults, the Government listened to concerns and, as mentioned, have strengthened the user empowerment duties to make it easier for adult users to opt in to using them by offering a forced choice. We have made a careful decision, however, to balance these protections with users’ right to freedom of expression and therefore cannot require platforms to treat legal content accessed by adults in a prescribed way. That is why, although I share the noble Baroness’s concerns about the type of content that she mentions, I cannot accept her amendment and hope that she will agree.

The Bill’s existing duties require category 1 platforms to offer users the ability to verify their identity. Clause 12 requires category 1 platforms to offer users the ability to filter out users who have not verified their identity. Amendment 183 from my noble friend Lord Moylan seeks to give Ofcom the discretion to decide when it is and is not proportionate for category 1 services to offer users the ability to verify their identity. We do not believe that these will be excessively burdensome, given that they will apply only to category 1 companies, which have the resource and capacity to offer such tools.

Amendment 182 would require platforms to offer users the option to make their verification status visible. The existing duty in Clause 57, in combination with the duty in Clause 12, will already provide significant protections for adults from anonymous abuse. Adult users will now be able to verify their own status and decide to interact only with other verified users, whether or not their status is visible. We do not believe that this amendment would provide additional protections.

The Government carefully considered mandating that all users display their verification status, which may heighten some users’ safety, but it would be detrimental to vulnerable users, who may need to remain anonymous for perfectly justifiable reasons. Further government amendments in my name will expand the types of information that Ofcom can require category 1, 2A and 2B providers to publish in their transparency reports in relation to user empowerment content.

Separately, but also related to transparency, government Amendments 189 and 202 make changes to Clause 67 and Schedule 8. These relate to category 1 providers’ duties to create clear and accessible terms of service and apply them consistently and transparently. Our amendments tighten these parts of the Bill so that all the providers’ terms through which they might indicate that a certain type of content is not allowed on their service, are captured by these duties.

I hope that noble Lords will therefore accept the Government amendments in this group and that my anticipatory remarks about their amendments will give them some food for thought as they make their contributions. I beg to move.

18:15

[Lord Moylan (Con)]

My Lords, I speak to Amendments 56, 58, 63 and 183 in my name in this group. I have some complex arguments to make, but time is pressing, so I shall attempt to do so as briefly as possible. I am assisted in that by the fact that my noble friend on the Front Bench very kindly explained that the Government are not going to accept my worthless amendments, without actually waiting to hear what it is I might have said on their behalf.

None the less, I turn briefly to Amendment 183. The Bill has been described, I think justly, as a Twitter-shaped Bill: it does not take proper account of other platforms that operate in different ways. I return to the question of Wikipedia, but also platforms such as Reddit and other community-driven platforms. The requirement for a user-verification tool is of course intended to lead to the possibility that ordinary, unverified users—people like you and me—could have the option to see only that content which comes from those people who are verified.

This is broadly a welcome idea, but when we combine that with the fact that there are community-driven sites such as Wikipedia where there are community contributions and people who contribute to those sites are not always verified—sometimes there are very good reasons why they would want to preserve their anonymity —we end up with the possibility of whole articles having sentences left out and so on. That is not going to happen; the fact is that nobody such as Wikipedia can operate a site like that, so it is another one of those existential questions that the Government have not properly grappled with and really must address before we come to Third Reading, because this will not work the way it is.

As for my other amendments, they are supportive of and consistent with the idea of user verification, and they recognise—as my noble friend said—that user verification is intended to be a substitute for the abandoned “legal but harmful” clause. I welcome the abandonment of that clause and recognise that this provision is more consistent with individual freedom and autonomy and the idea that we can make choices of our own, but it is still open to the possibility of abuse by the platforms themselves. The amendments that I am put forward address, first, the question of what should be the default position. My argument is that the default position should be that filtering is not on and that one has to opt into it, because that that seems to me the adult proposition, the adult choice.

The danger is that the platforms themselves will either opt you into filtering automatically as the default, so you do not see what might be called the full-fat milk that is available on the internet, or that they harass you to do so with constant pop-ups, which we already get. If you go on the Nextdoor website, you constantly get the pop-up saying, “You should switch on notifications”. I do not want notifications; I want to look at it when I want to look at it. I do not want notifications, but I am constantly being driven into pressing the button that says, “Switch on notifications”. You could have something similar here—constantly being driven into switching on the filters—because the platforms themselves will be very worried about the possibility that you might see illegal content. We should guard against that.

Secondly, on Amendment 58, if we are going to have user verification—as I say, there is a lot to be said for that approach—it should be applied consistently. If the platform decides to filter out racist abuse and you opt in to filtering out racist abuse or some other sort of specified abuse, it has to filter all racist abuse, not simply racist abuse that comes from people they do not like; or, with gender assignment abuse, they cannot filter out stuff from only one side or other of the argument. The word “consistently” that is included here is intended to address that, and to require policies that show that, if you opt in to having something filtered out, it would be done on a proper, consistent and systematic basis and not influenced by the platform’s own particular political views.

Finally, we come to Amendment 63 and the question of how this is communicated to users of the internet. This amendment would force the platforms to make these policies about how user verification will operate a part of their terms and conditions in a public and visible way and to ensure that those provisions are applied consistently. It goes a little further than the other amendments—the others could stand on their own—but would also add a little bit more by requiring public and consistent policies that people can see. This works with the grain of what the Government are trying to do; I do not see that the Government can object to any of this. There is nothing wrecking here. It is trying to make everything more workable, more transparent and more obvious.

I hope, given the few minutes or short period of time that will elapse between my sitting down and the Minister returning to the Dispatch Box, that he will have reflected on the negative remarks that he made in his initial speech and will find it possible to accept these amendments now that he has heard the arguments for them.

[Lord Clement-Jones (LD)]

My Lords, I will not engage with the amendments of the noble Lord, Lord Moylan, since mine are probably the diametric opposite of what he has been saying.

I say, first, on behalf of the noble Baroness, Lady Finlay, that she regrets very much not being able to be here. Amendment 204 in her name is very much a Samaritans amendment. The Samaritans have encouraged her to put it forward and encourage us to support it. It is clear that the Minister has got his retaliation in first and taken the wind out of all our sails right at the beginning. Nevertheless, that does not mean that we cannot come back at the Minister and ask for further and better particulars of what he has to say.

Clearly the Government’s decision to bring in the new offence of encouraging or assisting self-harm is welcome. However—certainly in the view of the Samaritans—this will only bring into the remit of the Bill content that encourages serious self-harm, which must reach the high threshold amounting to grievous bodily harm. Their view, therefore, is that much harmful content will still be left untouched and available to criminals online. This could include information, depictions, instructions and advice on methods of self-harm and suicide. It would also include content that portrays self-harm and suicide as positive or desirable, and graphic descriptions or depictions of self-harm and suicide.

Perhaps the Minister could redouble his efforts to assure us as to how the Bill will take a comprehensive approach to placing duties on all platforms to reduce all dangerous suicide and self-harm content, such as detailed instructions on how people can harm themselves, for adults as well as children. This should also be in respect of smaller sites; it is not just the larger category 1 sites that will need to proactively remove priority illegal content, whatever the level of detail in their risk assessment. I hope I have done my duty by the noble Baroness, Lady Finlay, who very much regrets that she was not able to be here.

My own Amendments 55, 59, 64 and 181 are about changes in social media. The Bill really began its life at the high point of the phase where services were free to the user and paid for by adverts. The noble Lord talked about this being a Twitter Bill. Well, to some extent we are influenced by what Twitter has been doing over the last 12 months: it has begun to charge for user-verification services and some features, and other services are adopting versions of what you might call this premium model. So there is a real concern that Clause 12 might not be as comprehensive as the Minister seems to be asserting. I assume that it is covered by the “proportionate” wording in Clause 12, and therefore it would not be proportionate—to put it the other way round—if they charged for this service. I would very much like the Minister to give the detail of that, so I am not going to cover the rest of the points that I would otherwise have made.

The Minister said that a blanket approach would not be appropriate for user-empowerment control features. The thought that people have had is that a platform might choose to have a big red on/off button that would try to cover all the types of content that could be subject to this kind of user-empowerment tool. I do not think the contents of Clause 12 are as clear as the Minister perhaps considers they could be, but they go with the grain of the new government amendments. I should have said right at the beginning—although many of us regret the deletion of “legal but harmful” from the original draft Bill—that the kind of assessment that is going to be made is a step in the right direction and demonstrates that the Minister was definitely listening in Committee. However, if a blanket approach of this kind is taken, that would not be in the spirit of where these user-empowerment tools are meant to go. I welcome what the Minister had to say, but again I would like the specifics of where he thinks the wording is helpful in making sure that we have a much more granular form of user-empowerment control feature when this eventually comes into operation.

Finally, I return to user verification. This is very much in the footsteps of the Joint Committee. The noble Baroness, Lady Merron, spoke very well in Committee to what was then Amendment 41, which was in the name of the noble Lord, Lord Stevenson. It would required category 1 services to make visible to users whether another user was verified or non-verified.

18:30

Amendment 182 to Clause 57 is a rather different animal, but we are again trying to get improvements to what is in the clause at the moment. It tries to focus even more on empowering users by giving them choice. Alongside offering UK users a choice to verify, it will ensure that users are also offered a choice to make that verification visible to others. In a sense, it goes very much with the grain of what the Government have been moving towards with their approach to the use of user-empowerment tools and giving choice at the outset. That is, in a sense, the compromise between default and non-default, as we discussed in Committee. This offers users a different kind of choice, but nevertheless an important choice.

Just as the Bill would not force any UK users to verify, so this amendment would not force any UK users to make their choice to verify visible. All it would do is require that platforms offer them an option. Research suggests that most UK users would choose to verify and to make that visible; I am sure that the Minister is familiar with some of the research. New research published this week by Clean Up the Internet, based on independent opinion polling conducted by Opinium, found that 78% of UK social media users say that it would be helpful to be able to see which social media accounts have been verified to help them avoid scams. Almost as many—77%—say that being able to see which accounts have been verified would help with identifying bullies or trolls. Some 72% say it would help with spotting false or misleading news stories, and 68% say it would help with buying products or services.

Ofcom’s own research into online fraud, published in March this year, found:

“A warning from the platform that content or messages come from an unverified source”

is the single most popular measure platforms could introduce to help users avoid getting drawn into scams. So it would be an extremely popular move for the Minister to accept my amendment, as I am sure he would appreciate.

[Lord Stevenson of Balmacara (Lab)]

Is he not outrageous, trying to make appeals to one’s good humour and good sense? But I support him.

I will say only three things about this brief but very useful debate. First, I welcome the toggle-on, toggle-off resolution: that is a good move. It makes sure that people make a choice and that it is made at an appropriate time, when they are using the service. That seems to be the right way forward, so I am glad that that has come through.

Secondly, I still worry that terms of service, even though there are improved transparency measures in these amendments, will eventually need some form of power for Ofcom to set de minimis standards. So much depends on the ability of the terms of service to carry people’s engagement with the social media companies, including the decisions about what to see and not to see, and about whether they want to stay on or keep off. Without some power behind that, I do not think that the transparency will take it. However, we will leave it as it is; it is better than it was before.

Thirdly, user ID is another issue that will come back. I agree entirely with what the noble Lord, Lord Clement-Jones, said: this is at the heart of so much of what is wrong with what we see and perceive as happening on the internet. To reduce scams, to be more aware of trolls and to be aware of misinformation and disinformation, you need some sense of who you are talking to, or who is talking to you. There is a case for having that information verified, whether or not it is done on a limited basis, because we need to protect those who need to have their identities concealed for very good reason—we know all about that. As the noble Lord said, it is popular to think that you would be a safer person on the internet if you were able to identify who you were talking to. I look forward to hearing the Minister’s response.

[Baroness Morgan of Cotes (Con)]

My Lords, I will speak very briefly to Amendments 55 and 182. We are now at the stage of completely taking the lead from the Minister and the noble Lords opposite—the noble Lords, Lord Stevenson and Lord Clement-Jones—that we have to accept these amendments, because we need now to see how this will work in practice. That is why we all think that we will be back here talking about these issues in the not too distant future.

My noble friend the Minister rightly said that, as we debated in Committee, the Government made a choice in taking out “legal but harmful”. Many of us disagree with that, but that is the choice that has been made. So I welcome the changes that have been made by the Government in these amendments to at least allow there to be more empowerment of users, particularly in relation to the most harmful content and, as we debated, in relation to adult users who are more vulnerable.

It is worth reminding the House that we heard very powerful testimony during the previous stage from noble Lords with personal experience of family members who struggle with eating disorders, and how difficult these people would find it to self-regulate the content they were looking at.

In Committee, I proposed an amendment about “toggle on”. Anyone listening to this debate outside who does not know what we are talking about will think we have gone mad, talking about toggle on and toggle off, but I proposed an amendment for toggle on by default. Again, I take the Government’s point, and I know my noble friend has put a lot of work into this, with Ministers and others, in trying to come up with a sensible compromise.

I draw attention to Amendment 55. I wonder if my noble friend the Minister is able say anything about whether users will be able to have specific empowerment in relation to specific types of content, where they are perhaps more vulnerable if they see it. For example, the needs of a user might be quite different between those relating to self-harm and those relating to eating disorder content or other types of content that we would deem harmful.

On Amendment 182, my noble friend leapt immediately to abusive content coming from unverified users, but, as we have heard, and as I know, having led the House’s inquiry into fraud and digital fraud last year, there will be, and already is, a prevalence of scams. The Bill is cracking down on fraudulent advertisements but, as an anti-fraud measure, being able to see whether an account has been verified would be extremely useful. The view now is that, if this Bill is successful—and we hope it is—in cracking down on fraudulent advertising, then there will be even more reliance on what is called organic reach, which is the use of fake accounts, where verification therefore becomes more important. We have heard from opinion polling that the public want to see which accounts are or are not verified. We have also heard that Amendment 182 is about giving users choice, in making clear whether their accounts are verified; it is not about compelling people to say whether they are verified or not.

As we have heard, this is a direction of travel. I understand that the Government will not want to accept these amendments at this stage, but it is useful to have this debate to see where we are going and what Ofcom will be looking at in relation to these matters. I look forward to hearing what my noble friend the Minister has to say about these amendments.

[Lord Allan of Hallam (LD)]

My Lords, I speak to Amendment 53, on the assessment duties, and Amendment 60, on requiring services to provide a choice screen. It is the first time we have seen these developments. We are in something of a see-saw process over legal but harmful. I agree with my noble friend Lord Clement-Jones when he says he regrets that it is no longer in the Bill, although that may not be a consistent view everywhere. We have been see-sawing backwards and forwards, and now, like the Schrödinger’s cat of legal but harmful, it is both dead and alive at the same time. Amendments that we are dealing with today make it a little more alive that it was previously.

In this latest incarnation, we will insist that category 1 services carry out an assessment of how they will comply with their user-empowerment responsibility. Certainly, this part seems reasonable to me, given that it is limited to category 1 providers, which we assume will have significant resources. Crucially, that will depend on the categorisations—so we are back to our previous debate. If we imagine category 1 being the Meta services and Twitter, et cetera, that is one thing, but if we are going to move others into category 1 who would really struggle to do a user empowerment tool assessment—I have to use the right words; it is not a risk assessment—then it is a different debate. Assuming that we are sticking to those major services, asking them to do an assessment seems reasonable. From working on the inside, I know that even if it were not formalised in the Bill, they would end up having to do it as part of their compliance responsibilities. As part of the Clause 8 illegal content risk assessment, they would inevitably end up doing that.

That is because the categories of content that we are talking about in Clauses 12(10) to (12) are all types of content that might sometimes be illegal and sometimes not illegal. Therefore, if you were doing an illegal content risk assessment, you would have to look at it, and you would end up looking at types of content and putting them into three buckets. The first bucket is that it is likely illegal in the UK, and we know what we have to do there under the terms of the Bill. The second is that it is likely to be against your terms of service, in which case you would deal with it there. The third is that it is neither against your terms of service nor against UK law, and you would make a choice about that.

I want to focus on what happens once you have done the risk assessment and you have to have the choice screen. I particularly want to focus on services where all the content in Clause 12 is already against their terms of service, so there is no gap. The whole point of this discussion about legal but harmful is imagining that there is going to be a mixed economy of services and, in that mixed economy, there will be different standards. Some will wish to allow the content listed in Clause 12—self-harm-type content, eating disorder content and various forms of sub-criminal hate speech. Some will choose to do that—that is going to be their choice—and they will have to provide the user empowerment tools and options. I believe that many category 1 providers will not want to; they will just want to prohibit all that stuff under their terms of service and, in that case, offering a choice is meaningless. That will not make the noble Lord, Lord Moylan, or the noble Baroness, Lady Fox, very happy, but that is the reality.

Most services will just say that they do not want that stuff on their platform. In those cases, I hope that what we are going to say is that, in their terms of service, when a user joins a service, they can say that they have banned all that stuff anyway, so they are not going to give the user a user empowerment tool and, if the user sees that stuff, they should just report it and it will be taken down under the terms of service. Throughout this debate I have said, “No more cookie banners, please”. I hope that we are not going to require people, in order for them to comply with this law, to offer a screen that people then click through. It is completely meaningless and ineffective. For those services that have chosen under their terms of service to restrict all the content in Clause 12, I hope that we will be saying that their version of the user empowerment tool is not to make people click anything but to provide education and information and tell them where they can report the content and have it taken down.

Then there are those who will choose to protect that content and allow it on their service. I agree with the noble Lord, Lord Moylan, that this is, in some sense, Twitter-focused or Twitter-driven legislation, because Twitter tends to be more in the freedom of speech camp and to allow hate speech and some of that stuff. It will be more permissive than Facebook or Instagram in its terms, and it may choose to maintain that content and it will have to offer that screen. That is fine, but we should not be making services do so when they have already prohibited such content.

The noble Lord, Lord Moylan, mentioned services that use community moderators to moderate part of the service and how this would apply there. Reddit is the obvious example, but there are others. If you are going to have user empowerment—and Reddit is more at the freedom of expression end of things—then if there are some subreddits, or spaces within Reddit that allow hate speech or the kind of speech that is in Clause 12, it would be rational to say that user empowerment in the context of Reddit is to be told that you can join these subreddits and you are fine or you can join those subreddits and you are allowing yourself to be exposed to this kind of content. What would not make sense would be for Reddit to do it individual content item by content item. When we are thinking about this, I hope that the implementation would say that, for a service with community-moderated spaces, and subspaces within the larger community, user empowerment means choosing which subspaces you enter, and you would be given information about them. Reddit would say to the moderators of the subreddits, “You need to tell us whether you have any Clause 12-type content”—I shall keep using that language—“and, if you are allowing it, you need to make sure that you are restricted”. But we should not expect Reddit to restrict every individual content item.

Finally, as a general note of caution, noble Lords may have detected that I am not entirely convinced that these will be hugely beneficial tools, perhaps other than for a small subset of Twitter users, for whom they are useful. There is an issue around particular kinds of content on Twitter, and particular Twitter users, including people in prominent positions in public life, for whom these tools make sense. For a lot of other people, they will not be particularly meaningful. I hope that we are going to keep focused on outcomes and not waste effort on things that are not effective.

As I say, many companies, when they are faced with this, will look at it and say, “I have limited engineering time. I could build all these user empowerment tools or I could just ban the Clause 12 stuff in my terms of service”. That would not be a great outcome for freedom of expression; it might be a good outcome for the people who wanted to prohibit legal but harmful in the first place. You are going to do that as a really hard business decision. It is much more expensive to try to maintain these different regimes and flag all this content and so on. It is simpler to have one set of standards.

18:45

I think most services will just adopt the Clause 12 content restrictions into their terms of service and have done with it. I do not think we want to create a perverse situation where we say you must allow some in order to have a tool to block it. I certainly had the experience at Facebook where people were saying to me, “Why does Facebook not have safe search to prevent nudity?” I would say, “Our terms ban nudity”, and then they would say, “But you need safe search”. I would say, “It is banned. You are not supposed to have it. Why would I have a tool to block something that should not be there in the first place?” I hope we are not going to go down that path and create those perverse incentives.

This is crucially about deploying resources so I hope if we are going ahead with the user empowerment tools we will assess them and be ruthless about deploying resources where they work best. I do not think anyone is going to cry for category 1 companies. They have plenty of resources; they can build stuff. But the pool of engineers is not infinite and if we are asking them to spend their time on user empowerment tools that very few people use and are not producing huge safety benefits, frankly, I would rather they take those engineers and put them on something else, such as scanning algorithms which can pick up the priority content for children.

I hope we keep all that in mind as we do this. We are going to build the user empowerment tools. It is a logical response once we had decided to take legal but harmful out, but I think we should approach it with a note of caution that we do not assume it is necessarily going to be a fix everywhere and in the same way on all platforms. For some platforms, it might be quite meaningless; for others, potentially, it is something people will want to use.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I am happy to acknowledge and recognise what the Government did when they created user empowerment duties to replace legal but harmful. I think they were trying to counter the dangers of over-paternalism and illiberalism that oblige providers to protect adult users from content that allegedly would cause them harm.

At least the new provisions brought into the Bill have a different philosophy completely. They enhance users’ freedom as individuals and allow them to apply voluntary content filters and freedom of choice, on the principle that adults can make decisions for themselves.

In case anyone panics, I am not making a philosophical speech. I am reminding the Government that that is what they said to us—to everybody—“We are getting rid of legal but harmful because we believe in this principle”. I am worried that some of the amendments seem to be trying to backtrack from that different basis of the Bill—and that more liberal philosophy—to go back to the old legal but harmful. I say to the noble Lord, Lord Allan of Hallam, that the cat is distinctly not dead.

The purpose of Amendment 56 is to try to ensure that providers also cannot thwart the purpose of Clause 12 and make it more censorious and paternalistic. I am not convinced that the Government needed to compromise on this as I think Amendment 60 just muddies the waters and fudges the important principle that the Government themselves originally established.

Amendment 56 says that the default must be no filtering at all. Then users have to make an active decision to switch on the filtering. The default is that you should be exposed to a full flow of ideas and, if you do not want that, you have to actively decide not to and say that you want a bowdlerised or sanitised version.

Amendment 56 takes it a bit further, in paragraph (b), and applies different levels of filtering in terms of content of democratic importance and journalistic content. In the Bill itself, the Government accept the exceptional nature of those categories of content, and this just allows users to be able to do the same and say, “No; I might want to filter some things out but bear in mind the exceptional importance of democratic and journalistic content”. I worry that the government amendments signal to users that certain ideas are dangerous and must be hidden. That is my big concern. In other words, they might be legal but they are harmful: that is what I think these amendments try to counter.

One of the things that worries me about the Bill is the danger of echo chambers. I know we are concentrating on harms, but I think echo chambers are harmful. I started today quite early at Blue Orchid at 55 Broadway with a big crowd of sixth formers involved in debating matters. I complimented Keir Starmer on his speech on the importance of oracy and encouraging young people to speak. I stressed to all the year 12 and year 13 young people that the important thing was that they spoke out but also that they listened to contrary opinions and got out of their safe spaces and echo chambers. They were debating very difficult topics such as commercial surrogacy, cancel culture and the risks of contact sports. I am saying all that to them and then I am thinking, “We have now got a piece of legislation that says you can filter out all the stuff you do not want to hear and create your own safe space”. So I just get anxious that we do not inadvertently encourage in the young—I know this is for all adults—that antidemocratic tendency to not want to hear what you do not want to hear, even when it would be good to hear as many opinions as possible.

I also want to press the Minister on the problem of filtering material that targets race, religion, sex, sexual orientation, disability and gender reassignment. I keep trying to raise the problem that it could lead to diverse philosophical views around those subjects also being removed by overzealous filtering. You might think that you know what you are asking to be filtered out. If you say you want to filter out material that is anti-religion, you might not mean that you do not want any debates on religious tolerance. For example, there was that major controversy over the “The Lady of Heaven” film. I know the Minister was interested, as I was, in the dangers of censorship in relation to that. You would not want, because you said, “Don’t target me for my religion”, to not be able to access that debate.

I think there is a danger that we are handing a lot of power to filterers to make filtering decisions based on their values when we are not clear about what they are. Look at what has happened with the banks in the last few days. Their values have closed down people’s bank accounts because they disagree on values. Again, we say “Don’t target on race”, but I have been having lots of arguments with people recently who have accused the Government, through their Illegal Migration Bill, of being racist. I think we just need to know that we are not accepting an ideological filtering of what we see.

Amendment 63 is key because it requires providers’ terms of service to include provisions about how content to which Clause 12(2) applies is identified, precisely to try to counter these problems. It imposes a duty on providers to apply those provisions consistently, as the noble Lord, Lord Moylan, explained. The point that providers have to set out how they identify content that is allegedly hostile, for example, to religion, or racially abusive, is important because this is about empowering users. Users need to know whether this will be done by machine learning or will it be a human doing it. Do they look for red flags and, if so, what are the red flags? How are these things decided? That means that providers have to state clearly and be accountable for their definition of any criteria that could justify them filtering out and disturbing the flow of democratic information. It is all about transparency and accountability in that sense.

Finally, in relation to Amendment 183, I am worried about the notion of filtering out content from unverified users for a range of reasons. It indicates somehow that there is a direct link between being unverified or anonymous and harm or being dodgy, which I think that is illegitimate. It has already been explained that there will be a detrimental impact on certain organisations —we have talked about Reddit, but I like to remember Mumsnet. There are quite a lot of organisations with community-centred models, where the structure is that influencers broadcast to their followers and where there are pseudonymous users. Is the requirement to filter out those contributors likely to lead to those models collapsing? I need to be reassured on this because I am not convinced at all. As has been pointed out, there will be a two-tier internet because those who are unable or unwilling to disclose their identity online or to be verified by someone would be or could be shut out from public discussions. That is a very dangerous place to have ended up, even though I am sure it is not what the Government intend.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful for the broad, if not universal, support for the amendments that we have brought forward following the points raised in Committee. I apologise for anticipating noble Lords’ arguments, but I am happy to expand on my remarks in light of what they have said.

My noble friend Lord Moylan raised the question of non-verified user duties and crowdsourced platforms. The Government recognise concerns about how the non-verified user duties will work with different functionalities and platforms, and we have engaged extensively on this issue. These duties are only applicable to category 1 platforms, those with the largest reach and influence over public discourse. It is therefore right that such platforms have additional duties to empower their adult users. We anticipate that these features will be used in circumstances where vulnerable adults wish to shield themselves from anonymous abuse. If users decide that they are restricting their experience on a particular platform, they can simply choose not to use them. In addition, before these duties come into force, Ofcom will be required to consult effective providers regarding the codes of practice, at which point they will consider how these duties might interact with various functionalities.

My noble friend and the noble Lord, Lord Allan of Hallam, raised the potential for being bombarded with pop-ups because of the forced-choice approach that we have taken. These amendments have been carefully drafted to minimise unnecessary prompts or pop-ups. That is why we have specified that the requirement to proactively ask users how they want these tools to be applied is applicable only to registered users. This approach ensures that users will be prompted to make a decision only once, unless they choose to ignore it. After a decision has been made, the provider should save this preference and the user should not be prompted to make the choice again.

The noble Lord, Lord Clement-Jones, talked further about his amendments on the cost of user empowerment tools as a core safety duty in the Bill. Category 1 providers will not be able to put the user empowerment tools in Clause 12 behind a pay wall and still be compliant with their duties. That is because they will need to offer them to users at the first possible opportunity, which they will be unable to do if they are behind a pay wall. The wording of Clause 12(2) makes it clear that providers have a duty to include user empowerment features that an adult user may use or apply.

[Lord Allan of Hallam (LD)]

The Minister may not have the information today, but I would be happy to get it in writing. Can he clarify exactly what will be expected of a service that already prohibits all the Clause 12 bad stuff in their terms of service?

[Lord Parkinson of Whitley Bay]

I will happily write to the noble Lord on that.

Clause 12(4) further sets out that all search user empowerment content tools must be made available to all adult users and be easy to access.

The noble Lord, Lord Clement-Jones, on behalf of the noble Baroness, Lady Finlay, talked about people who will seek out suicide, self-harm or eating-disorder content. While the Bill will not prevent adults from seeking out legal content, it will introduce significant protections for adults from some of the most harmful content. The duties relating to category 1 services’ terms of service are expected hugely to improve companies’ own policing of their sites. Where this content is legal and in breach of the company’s terms of service, the Bill will force the company to take it down.

We are going even further by introducing a new user empowerment content-assessment duty. This will mean that where content relates to eating disorders, for instance, but which is not illegal, category 1 providers need fully to assess the incidence of this content on their service. They will need clearly to publish this information in accessible terms of service, so users will be able to find out what they can expect on a particular service. Alternatively, if they choose to allow suicide, self-harm or eating content disorder which falls into the definition set out in Clause 12, they will need proactively to ask users how they would like the user empowerment content features to be applied.

My noble friend Lady Morgan was right to raise the impact on vulnerable people or people with disabilities. While we anticipate that the changes we have made will benefit all adult users, we expect them particularly to benefit those who may otherwise have found it difficult to find and use the user empowerment content features independently—for instance, some users with types of disabilities. That is because the onus will now be on category 1 providers proactively to ask their registered adult users whether they would like these tools to be applied at the first possible opportunity. The requirement also remains to ensure that the tools are easy to access and to set out clearly what tools are on offer and how users can take advantage of them.

19:00

On the granularity of choice for different tools, as pressed by the noble Lord, Lord Clement-Jones, the forced choice user empowerment amendment has been drafted in such a way to ensure that, should platforms offer users a range of tools to comply with their duties, users will get a choice about each tool that they offer. For instance, if a provider offers users one tool that will reduce the likelihood that they see certain categories of content and another that alerts them to the nature of it, they will get separate choices about whether they want these tools to be applied. This will ensure that users have even more control over their experience online. A blanket on/off choice for all user empowerment features is unlikely to be consistent with the duty on category 1 services to have particular regard to the importance of protecting users’ freedom of expression when putting in place these features, which can be found in Clause 18. Additionally, duties under the Human Rights Act 1998 and the requirement to consult experts on freedom of expression mean that the measures Ofcom will recommend in its codes of practice must consider the impact of freedom of expression so are unlikely to take a blanket approach.

I hope all that goes some way towards reassuring the noble Baroness, Lady Fox, that freedom of expression is baked into all these amendments. Many of the questions she raises come down to the choice of users. We are not forcing people by having a default on or off. We are encouraging all users to make a decision about what material they see as adults on the internet within the law. If, like her and like me, they want to continue to see that, they should continue to keep their settings broad and know that they will encounter things with which they may disagree or that may offend them.

[Lord Clement-Jones (LD)]

My Lords, does the Minister have any more to say on identity verification?

[Lord Parkinson of Whitley Bay (Con)]

I am being encouraged to be brief so, if I may, I will write to the noble Lord on that point.

Amendment 32 agreed.

Amendment 33

Moved by

[Lord Parkinson of Whitley Bay]

33: Clause 6, page 5, line 37, leave out “duty about record-keeping set out in section 19(9)” and insert “duties about record-keeping set out in section 19(8A) and (9)”
Member’s explanatory statement
This amendment ensures that the new duties in Clause 19 proposed by amendments in my name to that clause are imposed on providers of Category 1 services.

Amendment 33 agreed.

Clause 10: Children’s risk assessment duties

Amendment 34

Moved by

[Lord Parkinson of Whitley Bay]

34: Clause 10, page 9, line 13, after “8” insert “and, in the case of services likely to be accessed by children which are Category 1 services, the duties about assessments set out in section (Assessment duties: user empowerment)”
Member’s explanatory statement
This amendment inserts a signpost to the new duties imposed on providers of Category 1 services by the new Clause proposed after Clause 11 in my name.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I will speak to the government amendments now but not anticipate the non-government amendments in this group.

As noble Lords know, protecting children is a key priority for this Bill. We have listened to concerns raised across your Lordships’ House about ensuring that it includes the most robust protections for children, particularly from harmful content such as pornography. We also recognise the strength of feeling about ensuring the effective use of age-assurance measures, by which we mean age verification and age estimation, given the important role they will have in keeping children safe online.

I thank the noble Baroness, Lady Kidron, and my noble friends Lady Harding of Winscombe and Lord Bethell in particular for their continued collaboration over the past few months on these issues. I am very glad to have tabled a significant package of amendments on age assurance. These are designed to ensure that children are prevented from accessing pornography, whether it is published by providers in scope of the Part 5 duties or allowed by user-to-user services that are subject to Part 3 duties. The Bill will be explicit that services will need to use highly effective age verification or age estimation to meet these new duties.

These amendments will also ensure that there is a clear, privacy-preserving and future-proof framework governing the use of age assurance, which will be overseen by Ofcom. Our amendments will, for the first time, explicitly require relevant providers to use age verification or age estimation to protect children from pornography. Publishers of pornographic content, which are regulated in Part 5, will need to use age verification or age estimation to ensure that children are not normally able to encounter content which is regulated provider pornographic content on their service.

Further amendments will ensure that, where such tools are proactive technology, Ofcom may also require their use for Part 5 providers to ensure compliance. Amendments 279 and 280 make further definitional changes to proactive technology to ensure that it can be recommended or required for this purpose. To ensure parity across all regulated pornographic content in the Bill, user-to-user providers which allow pornography under their terms of service will also need to use age verification or age estimation to prevent children encountering pornography where they identify such content on their service. Providers covered by the new duties will also need to ensure that their use of these measures meets a clear, objective and high bar for effectiveness. They will need to be highly effective at correctly determining whether a particular user is a child. This new bar will achieve the intended outcome behind the amendments which we looked at in Committee, seeking to introduce a standard of “beyond reasonable doubt” for age assurance for pornography, while avoiding the risk of legal challenge or inadvertent loopholes.

To ensure that providers are using measures which meet this new bar, the amendments will also require Ofcom to set out, in its guidance for Part 5 providers, examples of age-verification and age-estimation measures which are highly effective in determining whether a particular user is a child. Similarly, in codes of practice for Part 3 providers, Ofcom will need to recommend age-verification or age-estimation measures which can be used to meet the new duty to use highly effective age assurance. This will meet the intent of amendments tabled in Committee seeking to require providers to use measures in a manner approved by Ofcom.

I confirm that the new requirement for Part 3 providers will apply to all categories of primary priority content that is harmful to children, not just pornography. This will mean that providers which allow content promoting or glorifying suicide, self-harm and eating disorders will also be required to use age verification or age estimation to protect children where they identify such content on their service.

Further amendments clarify that a provider can conclude that children cannot access a service—and therefore that the service is not subject to the relevant children’s safety duty—only if it uses age verification or age estimation to ensure that children are not normally able to access the service. This will ensure consistency with the new duties on Part 3 providers to use these measures to prevent children’s access to primary priority content. Amendment 34 inserts a reference to the new user empowerment duties imposed on category 1 providers in the child safety duties.

Amendment 214 will require Part 5 providers to publish a publicly available summary of the age-verification or age-estimation measures that they are using to ensure that children are not normally able to encounter content that is regulated provider pornographic content on their service. This will increase transparency for users on the measures that providers are using to protect children. It also aligns the duties on Part 5 providers with the existing duties on Part 3 providers to include clear information in terms of service on child protection measures or, for search engines, a publicly available statement on such measures.

I thank the noble Baroness, Lady Kidron, for her tireless work relating to Amendment 124, which sets out a list of age-assurance principles. This amendment clearly sets out the important considerations around the use of age-assurance technologies, which Ofcom must have regard to when producing its codes of practice. Amendment 216 sets out the subset of principles which apply to Part 5 guidance. Together, these amendments ensure that providers are deploying age-assurance technologies in an appropriate manner. These principles appear as a full list in Schedule 4. This ensures that the principles can be found together in one place in the Bill. The wider duties set out in the Bill ensure that the same high standards apply to both Part 3 and Part 5 providers. These principles have been carefully drafted to avoid restating existing duties in the Bill. In accordance with good legislative drafting practice, the principles also do not include reference to other legislation which already directly applies to providers. In its relevant guidance and codes, however, Ofcom may include such references as it deems appropriate.

Finally, I highlight the critical importance of ensuring that users’ privacy is protected throughout the age-assurance processes. I make it clear that privacy has been represented in these principles to the furthest degree possible, by referring to the strong safeguards for user privacy already set out in the Bill.

In recognition of these new principles and to avoid duplication, Amendment 127 requires Ofcom to refer to the age-assurance principles, rather than to the proactive technology principles, when recommending age-assurance technologies that are also proactive technology.

We have listened to the points raised by noble Lords about the importance of having clear and robust definitions in the Bill for age assurance, age verification and age estimation. Amendment 277 brings forward those definitions. We have also made it clear that self-declared age, without additional, more robust measures, is not to be regarded as age verification or age estimation for compliance with duties set out in the Bill. Amendment 278 aligns the definition of proactive technology with these new definitions.

The Government are clear that the Bill’s protections must be implemented as quickly as is feasible. This entails a complex programme of work for the Government and Ofcom, as well as robust parliamentary scrutiny of many parts of the regime. All of this will take time to deliver. It is right, however, that we set clear expectations for when the most pressing parts of the regulation—those targeting illegal content and protecting children—should be in place. These amendments create an 18-month statutory deadline from the day the Bill is passed for Ofcom’s implementation of those areas. By this point, Ofcom must submit draft codes of practice to the Secretary of State to be laid in Parliament and publish its final guidance relating to illegal content duties, duties about content harmful to children and duties about pornography content in Part 5. This also includes relevant cross-cutting duties, such as content reporting procedures, which are relevant to illegal content and content harmful to children.

In line with convention, most of the Bill’s substantive provisions will be commenced two months after Royal Assent. These amendments ensure that a set of specific clauses will commence earlier—on the day of Royal Assent—allowing Ofcom to begin vital implementation work sooner than it otherwise would have done. Commencing these clauses early will enable Ofcom to launch its consultation on draft codes of practice for illegal content duties shortly after Royal Assent.

Amendment 271 introduces a new duty on Ofcom to produce and publish a report on in-scope providers’ use of age-assurance technologies, and for this to be done within 18 months of the first date on which both Clauses 11 and 72(2), on pornography duties, are in force. I thank the noble Lord, Lord Allan of Hallam, for the amendment he proposed in Committee, to which this amendment responds. We believe that this amendment will improve transparency in how age-assurance solutions are being deployed by providers, and the effectiveness of those solutions.

Finally, we are also making a number of consequential and technical amendments to the Bill to split Clauses 11 and 25 into two parts. This is to ensure these do not become unwieldy and that the duties are clear for providers and for Ofcom. I beg to move.

Debate on Amendment 34 adjourned.

Consideration on Report adjourned.

House adjourned at 7.12 pm.