Online Safety Bill

Report stage
Wednesday 12th July 2023 Lords Chamber

Report (3rd Day)

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

16:00

Clause 38: Procedure for issuing codes of practice

Amendment 129

Moved by

[Lord Parkinson of Whitley Bay]

129: Clause 38, page 40, line 29, after “39” insert “(A1), (B1) or”
Member’s explanatory statement
This amendment is consequential on the amendments made to Clause 39 in my name.

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

My Lords, the amendments in this group consider regulatory accountability and the roles of Ofcom, the Government and Parliament in overseeing the new framework. The proposals include altering the powers of the Secretary of State to direct Ofcom, issue guidance to Ofcom and set strategic priorities. Ofcom’s operational independence is key to the success of this framework, but the regime must ensure that there is an appropriate level of accountability to government. Parliament will also have important functions, in particular scrutinising and approving the codes of practice which set out how platforms can comply with their duties and providing oversight of the Government’s powers.

I heard the strength of feeling expressed in Committee that the Bill’s existing provisions did not get this balance quite right and have tabled amendments to address this. Amendments 129, 134 to 138, 142, 143, 146 and 147 make three important changes to the power for the Secretary of State to direct Ofcom to modify a draft code of practice. First, these amendments replace the public policy wording in Clause 39(1)(a) with a more defined list of reasons for which the Secretary of State can make a direction. This list comprises: national security, public safety, public health and the UK’s international obligations. This is similar to the list set out in a Written Ministerial Statement made last July but omits “economic policy” and “burden to business”.

This closely aligns the reasons in the Bill with the existing power in Section 5 of the Communications Act 2003. The power is limited to those areas genuinely beyond Ofcom’s remit as a regulator and where the Secretary of State might have access to information or expertise that the regulator does not. Secondly, the amendments clarify that the power will be used only for exceptional reasons. As noble Lords know, this has always been our intent and the changes we are tabling today put this beyond doubt. Thirdly, the amendments increase the transparency regarding the use of the power by requiring the Secretary of State to publish details of a direction at the time the power is used. This will ensure that Parliament has advance sight of modifications to a code and I hope will address concerns that several directions could be made on a single code before Parliament became aware.

This group also considers Amendments 131 to 133, which create an 18-month statutory deadline for Ofcom to submit draft codes of practice to the Secretary of State to be laid in Parliament relating to illegal content, safety duties protecting children and other cross-cutting duties. These amendments sit alongside Amendment 230, which we debated on Monday and which introduced the same deadline for Ofcom’s guidance on Part 5 of the regime.

I am particularly grateful to my noble friend Lady Stowell of Beeston, with whom I have had the opportunity to discuss these amendments in some detail as they follow up points that she and the members of her committee gave particular attention to. I beg to move.

[Baroness Stowell of Beeston (Con)]

My Lords, I will speak to the amendments in this group in my name: Amendments 139, 140, 144 and 145. I thank the noble Lords, Lord Stevenson and Lord Clement-Jones, and the noble Viscount, Lord Colville, for signing those amendments and for their continued support on this group. I am also grateful to my noble friend the Minister and his team for engaging with me on the issue of Secretary of State powers. He has devoted a lot of time and energy to this, which is reflected in the wide- ranging group of amendments tabled by him.

Before I go any further, it is worth emphasising that the underlying concern here is making sure that we have confidence, through this new regulation regime, that the Bill strikes the right balance of power between government, Parliament, the regulator and big tech firms. The committee that I chair—the Communications and Digital Select Committee of your Lordships’ House—has most focused on that in our consideration of the Bill. I should say also that the amendments I have brought forward in my name very much have the support of the committee as well.

These amendments relate to Clause 39, which is where the main issue lies in the context of Secretary of State powers, and we have three broad concerns. First, as it stood, the Bill handed the Secretary of State unprecedented powers to direct the regulator on pretty much anything. Secondly, these powers allowed the Government to conduct an infinite form of ping-pong with the regulator, enabling the Government to prevail in a dispute. Thirdly, this ping-pong could take place in private with no possibility of parliamentary oversight or being able to intervene, as would be appropriate in the event of a breakdown in the relationship between executive and regulator.

This matters because the Online Safety Bill creates a novel form for regulating the internet and what we can or cannot see online, in particular political speech, and it applies to the future. It is one thing for the current Government, who I support, to say that they would never use the powers in this way. That is great but, as we know, current Governments cannot speak for whoever is in power in the generations to come, so it is important that we get this right.

As my noble friend said, he has brought forward amendments to Clause 39 that help to address this. I support him in and commend him for that. The original laundry list of powers to direct Ofcom has been shortened and now follows the precedent set out in the Communications Act 2003. The government amendments also say that the Secretary of State must now publish their directions to Ofcom, which will improve transparency, and once the code is agreed Ofcom will publish changes so that Parliament can see what changes have been made and why. These are all very welcome and, as I say, they go a long way to addressing some of our concerns, but two critical issues remain.

First, the Government retain an opt-out, which means that they do not have to publish their directions if the Secretary of State believes that doing so would risk

“national security or public safety”,

or international relations. However, those points are now the precise grounds on which the Secretary of State may issue a direction and, if history is any guide, there is a real risk that we will never hear about the directions because the Government have decided that they are a security issue.

My Amendments 139 and 140 would require the Secretary of State to at least notify Parliament of the fact that a direction has been issued and what broad topic it relates to. That would not require any details to be published, so it does not compromise security, but it does give assurance that infinite, secretive ping-pong is not happening behind the scenes. My noble friend spoke so quickly at the beginning that I was not quite sure whether he signalled anything, but I hope that he may be able to respond enthusiastically to Amendments 139 and 140.

Secondly, the Government still have powers for infinite ping-pong. I appreciate that the Government have reservations about capping the number of exchanges between the Secretary of State and Ofcom, but they must also recognise the concern that they appear to be preparing the ground for any future Government to reject infinitely the regulator’s proposals and therefore prevail in a dispute about a politically contentious topic. My Amendments 144 and 145 would clarify that the Government will have a legally binding expectation that they will use no more than the bare minimum number of directions to achieve the intent set out in their first direction.

The Government might think that adding this to the Bill is superfluous, but it is necessary in order to give Parliament and the public confidence about the balance of power in this regime. If Parliament felt that the Secretary of State was acting inappropriately, we would have sufficient grounds to intervene. As I said, the Government acknowledged in our discussions the policy substance of these concerns, and as we heard from my noble friend the Minister in introducing this group, there is an understanding on this. For his part, there is perhaps a belief that what they have done goes far enough. I urge him to reconsider Amendments 144 and 145, and I hope that, when he responds to the debate on this group, he can say something about not only Amendments 139 and 140 but the other two amendments that will give me some grounds for comfort.

[Lord Moylan (Con)]

My Lords, I realise that I am something of a fish out of water in this House, as I was in Committee, on the Bill, which is fundamentally flawed in a number of respects, including its approach to governance, which we are discussing today. Having said that, I am generally sympathetic to the amendments proposed by my noble friend Lady Stowell of Beeston. If we are to have a flawed approach, her amendments would improve it somewhat.

However, my approach is rather different and is based on the fairly simple but important principle that we live in a free democracy. If we are to introduce a new legislative measure such as this Bill, which has far- reaching powers of censorship taking us back 70 or 80 years in terms of the freedom of expression we have been able to develop since the 1950s and 1960s— to the days of Lady Chatterley’s Lover and the Lord Chamberlain, in equivalent terms, as far as the internet and the online world are concerned—then decisions of such a far-reaching character affecting our lives should be taken by somebody who is democratically accountable.

My approach is utterly different from that which my noble friend on the Front Bench has proposed. He has proposed amendments which limit yet further the Secretary of State’s power to give directions to Ofcom, but the Secretary of State is the only party in that relationship who has a democratic accountability. We are transferring huge powers to a completely unaccountable regulator, and today my noble friend proposes transferring, in effect, even more powers to that unaccountable regulator.

To go back to a point that was discussed in Committee and earlier on Report, if Ofcom takes certain decisions which make it impossible for Wikipedia to operate its current model, such that it has to close down at least its minority language websites—my noble friend said that the Government have no say over that and no idea what Ofcom will do—to whom do members of the public protest? To whom do they offer their objections? There is no point writing to the Secretary of State because, as my noble friend told us, they will not have had any say in the matter and we in this House will have forsworn the opportunity, which I modestly proposed, to take those powers here. There is no point writing to their MP, because all their MP can do is badger the Secretary of State. It is a completely unaccountable structure that is completely indefensible in a modern democratic society. So I object to the amendments proposed by my noble friend, particularly Amendments 136 and 137.

16:15

I rise particularly to speak to the amendments in my name: Amendments 218, 220, 221 and 223. This is surely the structure we want, one in which decisions are made by someone who is accountable and are then properly scrutinised by Parliament. My amendments introduce that particularly in respect of the Secretary of State’s powers to set Ofcom’s strategic objectives. This is the purpose of my Amendment 223, to which Amendments 220 and 226 are consequential. It would require that those instructions and directions should be approved by Parliament through the affirmative process. At the moment, the proposal is that they be approved by the negative process, and I think it should be the affirmative process; that is what my amendments seek to achieve. I do not think it requires much argument.

My Amendment 218 relates not to the setting of Ofcom’s strategic priorities but the guidance to be given by the Secretary of State to Ofcom on the exercise of any function. There is currently no parliamentary check on this guidance; it simply has to be laid before Parliament, but there is no procedure for this, neither negative nor affirmative. Surely we should say that this, too, should be subject to the affirmative procedure so that your Lordships’ House has an opportunity to debate and comment on those directions and that guidance, so that we have some of the features of a proper, functioning democracy.

Overall, we need accountable decision-makers, not unaccountable regulators, and we need them to be subject to parliamentary scrutiny. That is the burden of my argument and the effect of my amendments. I hope that they will command the support of the House.

[Viscount Colville of Culross (CB)]

My Lords, the codes of practice are among the most important documents that Ofcom will produce as a result of the Bill—in effect, deciding what content we, the users of the internet, will see. The Government’s right to modify these drafts affects us all, so it is absolutely essential that the codes are trusted.

I, too, welcome the Government’s Amendments 134 to 138, which are a huge improvement on the Clause 39 that was presented in Committee. I am especially grateful that the Government have not proceeded with including economic conditions as a reason for the Secretary of State to modify draft codes, which the noble Baroness, Lady Harding, pointed out in Committee would be very damaging. But I would like the Minister to go further, which is why I put my name to Amendments 139, 140, 144 and 145.

Amendment 139 is so important at the moment. My fear is about the opt-out from publishing these directions from the Secretary of State for Ofcom to modify the draft codes, which will then allow them to be made behind closed doors between the Government and the regulator. This should not be allowed to happen. It would happen at a time when trust in the Government is low and there is a feeling that so many decisions affecting us all are taken without our knowledge. Surely it is right that there should be as much transparency as possible in exposing the pressure that the Minister is placing on the regulator. I hope that, if this amendment is adopted, it will allow Parliament to impose the bright light of transparency on the entire process, which is in danger of becoming opaque.

I am sure that no one wants a repeat of what happened under Section 94 of the Telecommunications Act 1984, which gave the Secretary of State power to give directions of a “general character” to anyone, in the “interests of national security” or international relations, as long as they did not disclose important information to Parliament. The Minister’s power to operate in total secrecy, without any accountability to Parliament, was seen by many as wrong and undemocratic. It was subsequently repealed. Amendments 139 and 140 will prevent the creation of a similar problem.

Likewise, I support Amendment 144, which builds on the previous amendments, as another brake on the control of the Secretary of State over this important area of regulations. Noble Lords in this House know how much the Government dislike legislative ping-pong—which we will see later this evening, I suspect. I ask the Minister to transfer this dislike to limiting ping-pong between the Government and the regulator over the drafting of codes of practice. It would also prevent the Secretary of State or civil servants expanding their control of the draft codes of practice from initial parameters to slightly wider sets of parameters each time that they are returned to the Minister for consideration. It will force the civil servants and the Secretary of State to make a judgment on the limitation of content and ensure that they stick to it. As it is, the Secretary of State has two bites of the cherry. They are involved in the original shaping of the draft codes of practice and then they can respond to Ofcom’s formulation. I hope the Minister would agree that it is sensible to stop this process from carrying on indefinitely. I want the users of the digital world to have full faith that the control of online content they see is above board —and not the result of secretive government overreach.

[Baroness Harding of Winscombe (Con)]

My Lords, not for the first time I find myself in quite a different place from my noble friend Lord Moylan. Before I go through some detailed comments on the amendments, I want to reflect that at the root of our disagreement is a fundamental view about how serious online safety is. The logical corollary of my noble friend’s argument is that all decisions should be taken by Secretaries of State and scrutinised in Parliament. We do not do that in other technical areas of health and safety in the physical world and we should not do that in the digital world, which is why I take such a different view—

[Lord Moylan (Con)]

My Lords—

[Baroness Harding of Winscombe (Con)]

Perhaps the noble Lord will allow me to make my point. I really welcome the government amendments in this group. I thank my noble friend the Minister for bringing them forward and for listening hard to the debates that we had at Second Reading and in Committee. I am very pleased to see the removal of economic policy and the burdens to business as one of the reasons that a Secretary of State could issue directions. I firmly believe that we should not be putting Secretaries of State in the position of having to trade off safety for economic growth. The reality is that big tech has found it impossible to make those trade-offs too. People who work in these companies are human beings. They are looking for growth in their businesses. Secretaries of State are rightly looking for economic growth in our countries. We should not be putting people in the position of trying to make that trade-off. The right answer is to defer to our independent regulator to protect safety. I thank my noble friend and the Government very much for tabling these amendments.

I also support my noble friend Lady Stowell, as a member of the Communications and Digital Committee that she chairs so ably. She has brought forward a characteristically thoughtful and detailed set of amendments in an attempt to look around the corners of these powers. I urge my noble friend the Minister to see whether he can find a way in the specific issues of infinite and secretive ping-pong. Taking the secretive, my noble friend Lady Stowell has found a very clever way of making sure that it is not possible for future Governments to obscure completely any direction that they are giving, while at the same time not putting at risk any national secrets. It is a very thoughtful and precise amendment. I very much hope that my noble friend the Minister can support it.

On the infinite nature of ping-pong, which I feel is quite ironic today—I am not sure anyone in this House welcomes the concept of infinite ping-pong right now, whatever our views on business later today—friends of mine in the business world ask me what is different about working in government versus working in the business world; I have worked in both big and small businesses. Mostly it is not different: people come to work wanting to do a good job and to further the objectives of the organisation that they are part of, but one of the biggest differences in government is that doing nothing and continuing to kick the can down the road is a much more viable option in the body politic than it is in the business world. Rarely is that for the good.

One of the things you learn in business is that doing nothing is often the very worst thing you can do. My worry about the infinite nature of the ping-pong is that it refers to a technical business world that moves unbelievably fast. What we do not need is to enshrine a system that enables government essentially to avoid doing anything. That is a particularly business and pragmatic reason to support my noble friend’s amendment. I stress that it is a very mild amendment. My noble friend Lady Stowell has been very careful and precise not to put unreasonable burdens on a future Secretary of State. In “Yes Minister”-speak, the bare minimum could be quite a lot. I urge my noble friend the Minister to look positively on what are extremely constructive amendments, delivered in a very thoughtful way.

[Lord Allan of Hallam (LD)]

My Lords, I want to congratulate the noble Baroness, Lady Stowell, on her amendments and to raise some concerns, in particular about Amendment 138. I do this as somebody who has had the perhaps unique experience of being leaned on by Governments around the world who sought to give us, as a platform, directions about how to handle content. The risk is real: when there is a huge public outcry and you are an elected politician, you must be seen to be doing something, and the thing that you have been doing to date is to go directly to the platforms and seek to lean on them to make the change that you want.

In future, as the noble Baroness, Lady Stowell, has pointed out quite a few times, we are moving the accountability from the platforms to our independent regulator, Ofcom—and I agree with the noble Baroness, Lady Harding, that that is the right model, as it is an independent regulator. In these amendments we are considering a mechanism whereby that political outrage can still find an outlet, and that outlet will be a direction from the Secretary of State to the regulator asking it to change the guidance that it would otherwise have issued. It is really important that we dig into that and make sure that it does not prevent legitimate political activity but, at the same time, does not replicate the problem that we have had—the lack of transparency about decision-making inside companies, which has been resolved and addressed through leaks and whistleblowers. We do not want to be in a position in which understanding what has been happening in that decision-making process, now inside government, depends on leaks and whistleblowers. Having these directions published seems critical, and I worry a lot about Amendment 138 and how it will potentially mean that the directions are not published.

I have a couple of specific questions around that process to which I hope the Minister can respond. I understand how this will work: Ofcom will send its draft code of practice to the department and, inside the department, if the Secretary of State believes that there is an issue related to national security or there is another more limited set of conditions, they will be able to issue a direction. The direction may or may not have reasons with it; if the Secretary of State trusts Ofcom, they might give their reasons, but if the Secretary of State does not trust Ofcom with the information, they will give it the bare direction with no reasons. Clause 39 gives the Secretary of State the power to either give or withhold reasons, for reasons of national security. Ofcom will then come up with an amended version of the code of practice, reflecting the direction that it has been given.

The bit that I am really interested in is what happens from a Freedom of Information Act point of view. I hope that the Minister can clarify whether it would be possible for an individual exercising their Freedom of Information Act powers to seek the original draft code of practice as it went to the department. The final code of practice will be public, because it will come to us. It may be that we are in a situation in which you can see the original—Ofcom’s draft—and the final draft as it came to Parliament, and the only bit you cannot see under Amendment 138 is the actual direction itself, if the Secretary of State chooses to withhold it. That is quite critical, because we can anticipate that in these circumstances there will be Freedom of Information Act requests and a significant public interest in understanding any direction that was given that affected the speech of people in the United Kingdom. I would expect the ICO, unless there was some compelling reason, to want that original draft from Ofcom to be made public. That is one question around the interaction of the Freedom of Information Act and the process that we are setting out here, assuming that the Secretary of State has withheld their direction.

The other question is whether the Minister can enlighten us as to the circumstances in which he thinks the Secretary of State would be happy to publish the direction. We have said that this is now related only to very narrow national security interests and we have given them that get-out, so I am curious as to whether there are any examples of the kind of direction, in legislating for a power for the Secretary of State, that would meet the narrow criteria of being those exceptional circumstances, yet not be so sensitive—to use the double negative—that the Secretary of State would want to withhold it. If there were some examples of that, it might help assure us that the withholding of publication will be exceptional rather than routine.

My fear is that Section 138 says you can withhold in some circumstances. Actually, if we read it all together and say that, by definition, the direction comes from the fact that there is a national security concern, we end up with a situation in which the lack of publication has to be on national security grounds. Those two mirror each other, and therefore the norm may be that directions are never published. The Minister might allay our concerns if he could, at least in general terms, describe the kind of directions that would meet the gateway criteria for being permissible and yet not be so sensitive that the Secretary of State would not be comfortable with them being published.

16:30

[Baroness Fox of Buckley (Non-Afl)]

My Lords, a lot of positive and interesting things have been said that I am sympathetic to, but this group of amendments raises concerns about a democratic deficit: if too much of the Bill is either delegated to the Secretary of State or open to interference in relation to the Secretary of State and Ofcom, who decides what those priorities are? I will ask for a couple of points of clarification.

I am glad to see that the term “public policy” has been replaced, because what did that mean? Everything. But I am not convinced that saying that the Secretary of State can decide not just on national security but on public safety and public health is reassuring in the present circumstances. The noble Lord, Lord Allan, has just pointed out what it feels like to be leaned on. We had a very recent example internationally of Governments leaning on big tech companies in relation to Covid policies, lockdowns and so on, and removing material that was seen to contradict official public health advice—often public health advice that turned out not to be accurate at all. There should at least have been a lot more debate about what were political responses to a terrible virus. Noble Lords will know that censorship became a matter of course during that time, and Governments interfering in or leaning on big tech directly was problematic. I am not reassured that the Government hold to themselves the ability to lean on Ofcom around those issues.

It is also worth remembering that the Secretary of State already has a huge amount of power to designate, as we have discussed previously. They can designate what constitute priority illegal offences and priority content harmful to children, and that can all change beyond what we have discussed here. We have already seen that there is a constant expansion of what those harms can be, and having those decisions removed using only secondary legislation, unaccountable to Parliament or to public scrutiny, really worries me. It is likely to give a green light to every identity group and special interest NGO to demand that the list of priority harms and so on should be dealt with. That is likely to make the job of the Secretary of State to respond to “something must be done” moral panics all the more difficult. If that is going to happen, we should have parliamentary scrutiny of it; it cannot just be allowed to happen elsewhere.

It is ironic that the Secretary of State is more democratic, because they are elected, than an unelected regulator. I just feel that there is a danger in so much smoke and mirrors. When the Minister very kindly agreed to see the noble Lord, Lord Moylan, and me, I asked in a rather exasperated way why Ofcom could not make freedom of expression a priority, with codes of practice so that it would have to check on freedom of speech. The Minister said, “It’s not up to me to tell Ofcom what to do”, and I thought, “The whole Bill is telling Ofcom what to do”. That did not seem to make any sense.

I had another exchange with the present Secretary of State—again, noble Lords will not be surprised to hear that it was not a sophisticated intervention on my part—in which I said, “Why can’t the Government force the big tech companies to put freedom of expression in their terms and conditions or terms of service?” The Minister said, “They are private companies; we’re not interfering in what they do”. So you just end up thinking, “The whole Bill is telling companies that they’re going to be compelled to act in relation to harm and safety, but not on freedom of expression”. What that means is that you feel all the time as though the Government are saying that they are outsourcing this to third parties, which means that you cannot hold anyone to account.

Civil liberties campaigner Guy Herbert compared this to what is happening with the banks at the moment; they are being blamed by the Government and held to account for things such as politically exposed people and Ts and Cs that overconcentrate on values such as EDI and ESG that may be leading to citizens of this country having their bank accounts closed down. The Government say that they will tell the regulator that it has to act and say that the banks cannot behave in this way, but this all came from legislation—it is not as though the regulator was doing it off its own bat. Maybe it overinterpreted the legislation and the banks then overinterpreted it again and overremoved.

The obvious analogy for me is that there is a danger here that we will not be able to hold anyone to account for overremoval of legitimate democratic discussion from the online world, because everyone is pointing the finger at everyone else. At the very least, the amendments are trying to say that any changes beyond what we have discussed so far on this Bill must come before Parliament. That is very important for any kind of democratic credibility to be attached to this legislation.

[Baroness Kidron (CB)]

My Lords, I too express my admiration to the noble Baroness, Lady Stowell, for her work on this group with the Minister and support the amendments in her name. To pick up on what the noble Baroness, Lady Harding, said about infinite ping-pong, it can be used not only to avoid making a decision but as a form of power and of default decision-making—if you cannot get the information back, you are where you are. That is a particularly important point and I add my voice to those who have supported it.

I have a slight concern that I want to raise in public, so that I have said it once, and get some reassurance from the Minister. New subsection (B1)(d) in Amendment 134 concerns the Secretary of State directing Ofcom to change codes that may affect

“relations with the government of a country outside the United Kingdom”.

Many of the companies that will be regulated sit in America, which has been very forceful about protecting its sector. Without expanding on this too much, when it was suggested that senior managers would face some sort of liability in international fora, various parts of the American Government and state apparatus certainly made their feelings clearly known.

I am sure that the channels between our Government and the US are much more straightforward than any that I have witnessed, but it is absolutely definite that more than one Member of your Lordships’ House was approached about the senior management and said, “This is a worry to us”. I believe that where we have landed is very good, but I would like the Minister to say what the limits of that power are and acknowledge that it could get in a bit of a muddle with the economic outcomes that we were talking about, celebrating that they had been taken off the list, and government relations. That was the thing that slightly worried me in the government amendments, which, in all other ways, I welcome.

[Lord Clement-Jones (LD)]

My Lords, this has been a consistent theme ever since the Joint Committee’s report. It was reported on by the Delegated Powers and Regulatory Reform Committee, and the Digital and Communications Committee, chaired by the noble Baroness, Lady Stowell, has rightly taken up the issue. Seeing some movement from the Minister, particularly on Clause 29 and specifically in terms of Amendments 134 to 137, is very welcome and consistent with some of the concerns that have been raised by noble Lords.

There are still questions to answer about Amendment 138, which my noble friend has raised. I have also signed the amendments to Clause 38 because I think the timetabling is extremely welcome. However, like other noble Lords, I believe we need to have Amendments 139, 140, 144 and 145 in place, as proposed by the noble Baroness, Lady Stowell of Beeston. The phrase “infinite ping-pong” makes us all sink in gloom, in current circumstances—it is a very powerful phrase. I think the Minister really does have to come back with something better; I hope he will give us that assurance, and that his discussions with the noble Baroness Stowell will bear further fruit.

I may not agree with the noble Lord, Lord Moylan, about the Clause 39 issues, but I am glad he raised issues relating to Clause 159. It is notable that of all the recommendations by the Delegated Powers and Regulatory Reform Committee, the Government accepted four out of five but did not accept the one related to what is now Clause 159. I have deliberately de-grouped the questions of whether Clauses 158 and 159 should stand part of the Bill, so I am going to pose a few questions which I hope, when we get to the second group which contains my clause stand part proposition, the Minister will be able to tell me effortlessly what he is going to do. This will prevent me from putting down further amendments on those clauses, because it seems to me that the Government are being extraordinarily inconsistent in terms of how they are dealing with Clauses 158 and 159 compared with how they have amended Clause 39.

For instance, Clause 158 allows the Secretary of State to issue a direction to Ofcom, where the Secretary of State has reasonable grounds for believing that there is a threat to public health and safety or national security, and they can direct Ofcom to set objectives in how they use their media-literacy powers in Section 11 of the Communications Act for a specific period to address the threat, and make Ofcom issue a public-statement notice. That is rather extraordinary. I will not go into great detail at this stage, and I hope the Minister can avoid me having to make a long speech further down the track, but the Government should not be in a position to be able to direct a media regulator on a matter of content. For instance, the Secretary of State has no powers over Ofcom on the content of broadcast regulation—indeed, they have limited powers to direct over radio spectrum and wires—and there is no provision for parliamentary involvement, although I accept that the Secretary of State must publish reasons for the direction. There is also the general question of whether the threshold is high enough to justify this kind of interference. So Clause 158 is not good news at all. It raises a number of questions which I hope the Minister will start to answer today, and maybe we can avoid a great debate further down the track.

16:45

Then, of course, we have Clause 159. I think the noble Lord, Lord Moylan is correct. It does not have nearly enough parliamentary input into this, as the DPRRC itself said. It allows the Secretary of State to issue “have regard” guidance to Ofcom about Ofcom’s exercise of functions under the Act, research it might carry out, the use of its powers from the Communications Act, and how Ofcom uses its media literacy powers in the Communications Act across the Bill.

The point of principle involved here is that the Secretary of State should not interfere with the independence of the communications regulator—in particular, not in its day-to-day operation. There are a number of questions there, particularly on why the Government absolutely resisted what the DPRRC had to say. This is unusual, as normally the Government make a better fist of it in responding than I think they did on this occasion, but I look forward to hearing what the Minister has to say.

[Baroness Merron (Lab)]

My Lords, first, I have to say that, having read Hansard from last Thursday, I feel I should have drawn attention to my interests in the register that relate to the Jewish community. I apologise for not doing so at the time and am pleased to now put this on the record.

I will be brief, as noble Lords have already raised a number of very pertinent points, to which I know the Minister will want to respond. In this group of amendments, there is a very welcome focus on transparency, accountability and the role of Parliament, all of which are absolutely crucial to the success of the Bill. I am grateful to the Minister for his introduction and explanation of the impact of the proposed changes to the role of the Secretary of State and Ofcom, whose codes of practice will be, as the noble Viscount, Lord Colville, said, vitally important to the Bill. We very much welcome the amendments in the name of the noble Baroness, Lady Stowell, which identify the requirements of the Secretary of State. We also welcome the government amendments, which along with the amendments by the noble Baroness, have been signed by my noble friend Lord Stevenson.

The amendments tabled in the name of the noble Lord, Lord Moylan, raise interesting points about the requirement to use the affirmative procedure, among other points. I look forward to the Minister’s response to that and other amendments. It would be helpful to hear from the Minister his thoughts on arrangements for post-legislative scrutiny. It would also be helpful to deliberations to understand whether there have been discussions on this between the usual channels.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this is indeed an apposite day to be discussing ongoing ping-pong. I am very happy to speak enthusiastically and more slowly about my noble friend Lady Stowell of Beeston’s Amendments 139 and 140. We are happy to support those, subject to some tidying up at Third Reading. We agree with the points that she has made and are keen to bring something forward which would mean broadly that a statement would be laid before Parliament when the power to direct had been used. My noble friend Lady Harding characterised them as the infinite ping-pong question and the secretive ping-pong question; I hope that deals with the secretive ping-pong point.

My noble friend Lady Stowell’s other amendments focus on the infinite ping-pong question, and the power to direct Ofcom to modify a code. Her Amendments 139, 140, 144 and 145 seek to address those concerns: that the Secretary of State could enter into a private form of ping-pong with Ofcom, making an unlimited number of directions on a code to prevent it from ever coming before Parliament. Let me first be clear that we do not foresee that happening. As the amendments I have spoken to today show, the power can be used only when specific exceptional reasons apply. In that sense, we agree with the intent of the amendments tabled by my noble friend Lady Stowell. However, we cannot accept them as drafted because they rely on concepts— such as the “objective” of a direction—which are not consistent with the procedure for making a direction set out in the Bill.

The amendments I have brought forward mean that private ping-pong between the Secretary of State and Ofcom on a code is very unlikely to happen. Let me set out for my noble friend and other noble Lords why that is. The Secretary of State would need exceptional reasons for making any direction, and the Bill then requires that the code be laid before Parliament as soon as is reasonably practicable once the Secretary of State is satisfied that no further modifications to the draft are required. That does not leave room for the power to be used inappropriately. A code could be delayed in this way and in the way that noble Lords have set out only if the Secretary of State could show that there remained exceptional reasons once a code had been modified. This test, which is a very high bar, would need to be met each time. Under the amendments in my name, Parliament would also be made aware straightaway each time a direction was made, and when the modified code came before Parliament, it would now come under greater scrutiny using the affirmative procedure.

I certainly agree with the points that the noble Lord, Lord Allan, and others made that any directions should be made in as transparent a way as possible, which is why we have tabled these amendments. There may be some circumstances where the Secretary of State has access to information—for example, from the security services—the disclosure of which would have an adverse effect on national security. In our amendments, we have sought to retain the existing provisions in the Bill to make sure that we strike the right balance between transparency and protecting national security.

As the noble Lord mentioned, the Freedom of Information Act provides an additional route to transparency while also containing existing safeguards in relation to national security and other important areas. He asked me to think of an example of something that would be exceptional but not require that level of secrecy. By dropping economic policy and burden to business, I would point him to an example in those areas, but a concrete example evades me this afternoon. Those are the areas to which I would turn his attention.

[Lord Allan of Hallam (LD)]

Can the Minister confirm that the fact that a direction has been made will always be known to the public, even if the substance of it is not because it is withheld under the secrecy provision? In other words, will the public always have a before and after knowledge of the fact of the direction, even if its substance is absent?

[Lord Parkinson of Whitley Bay (Con)]

Yes; that is right.

I hope noble Lords will agree that the changes we have made and that I have outlined today as a package mean that we have reached the right balance in this area. I am very grateful to my noble friend Lady Stowell —who I see wants to come in—for the time that she too has given this issue, along with members of her committee.

[Baroness Stowell of Beeston (Con)]

I am grateful to my noble friend for his constructive response to my Amendments 139 and 140. I am sure he will do me the honour of allowing me to see the Government’s reversioning of my amendments before they are laid so that we can be confident at Third Reading that they are absolutely in line with expectations.

Could I press my noble friend a little further on Amendments 144 and 145? As I understood what he said, the objection from within government is to the language in the amendments I have tabled—although as my noble friend Lady Harding said, they are incredibly modest in their nature.

I was not sure whether my noble friend was saying in his defence against accepting them that issuing a direction would have to be exceptional, and that that led to a need to clarify that this would be ongoing. Would each time there is a ping or a pong be exceptional? Forgive me, because it starts to sound a bit ridiculous when we get into this amount of detail, but it seems to me that the “exceptional” issue kicks in at the point where you issue the direction. Once you engage in a dialogue, “exceptional” is no longer really the issue. It is an odd defence against trying to limit the number of times you allow that dialogue to continue. Bearing in mind that he is willing to look again at Amendments 139 and 140, I wonder whether, between now and Third Reading, he would at least ask parliamentary counsel to look again at the language in my original amendment.

[Lord Parkinson of Whitley Bay (Con)]

I am certainly happy to commit to showing my noble friend the tidying up we think necessary of the two amendments I said we are happy to accept ahead of Third Reading. On the others, as I said, the code could be delayed repeatedly only if the Secretary of State showed that there remained exceptional reasons once it had been modified, and that high bar would need to be met each time. So we do not agree with her Amendments 14 and 145 because of concerns about the drafting of my noble friend’s current amendment and because the government amendments we have brought forward cater for the scenario about which she is concerned. Her amendments would place a constraint on the Secretary of State not to give more directions than are necessary to achieve the objectives set out in the original direction, but they would not achieve the intent I think my noble friend has. The Bill does not require the direction to have a particular objective. Directions are made because the Secretary of State believes that modifications are necessary for exceptional reasons, and the direction must set out the reasons why the Secretary of State believes that a draft should be modified.

Through the amendments the Government have laid today, the direction would have to be for exceptional reasons relating to a narrower list and Parliament would be made aware each time a direction was made. Parliament would also have increased scrutiny in cases where a direction had been made under Clause 39(1)(a), because of the affirmative procedure. However, I am very happy to keep talking to my noble friend, as we will be on the other amendments, so we can carry on our conversation then if she wishes.

Let me say a bit about the amendments tabled by my noble friend Lord Moylan. His Amendment 218 would require the draft statement of strategic priorities laid before Parliament to be approved by resolution of each House. As we discussed in Committee, the statement of strategic priorities is necessary because future technological changes are likely to shape harms online, and the Government must have an avenue through which to state their strategic priorities in relation to these emerging technologies.

The Bill already requires the Secretary of State to consult Ofcom and other appropriate persons when preparing a statement. This provides an opportunity for consideration and scrutiny of a draft statement, including, for example, by committees of Parliament. This process, combined with the negative procedure, provides an appropriate level of scrutiny and is in line with comparable existing arrangements in the Communications Act in relation to telecommunications, the management of radio spectrum and postal services.

My noble friend’s other amendments would place additional requirements on the Secretary of State’s power to issue non-binding guidance to Ofcom about the exercise of its online safety functions. The guidance document itself does not create any statutory requirements —Ofcom is required only to have regard to the guidance —and on that basis, we do not agree that it is necessary to subject it to parliamentary approval as a piece of secondary legislation. As my noble friend Lady Harding of Winscombe pointed out, we do not require that in numerous other areas of the economy, and we do not think it necessary here.

Let me reassure my noble friend Lord Moylan on the many ways in which Parliament will be able to scrutinise the work of Ofcom. Like most other regulators, it is accountable to Parliament in how it exercises its functions. The Secretary of State is required to present its annual report and accounts before both Houses. Ministers from the devolved Administrations must also lay a copy of the report before their respective Parliament or Assembly. Ofcom’s officers can be required to appear before Select Committees to answer questions about its work; indeed, its chairman and chief executive appeared before your Lordships’ Communications and Digital Committee just yesterday. Parliament will also have a role in approving a number of aspects of the regulatory framework through its scrutiny of both primary and secondary legislation.

17:00

Once the regime that the Bill establishes is in force, a key point will be the Secretary of State’s review of its effectiveness, which will take place between two and five years after it comes into force, resulting in the production of a report that will then be laid before Parliament. This will clearly be an important moment, requiring input and scrutiny from a number of parties. We will ensure that Parliament is central to that process and is able thoroughly to scrutinise the operation of the regulatory framework in a way that deploys the skills and expertise in both Houses.

The noble Baroness, Lady Merron, asked to hear a bit more about this post-legislative scrutiny. In addition to that, we agree that ongoing parliamentary scrutiny of the regime will be crucial to providing reassurance that it is working in the way we all intend it to. The creation of the Department for Science, Innovation and Technology means that there is a new dedicated Select Committee in another place looking at the work of that department, and this provides an enhanced opportunity for cross-party work to scrutinise the online safety regime and digital regulation. More broadly, your Lordships’ Communications and Digital Committee will of course continue to play a vital role in scrutiny, as its work yesterday in talking to Ofcom’s chief executive and chairman demonstrates. We will continue to consider how to support the committee’s work; indeed, we will have an opportunity in a later debate to discuss this issue further in relation to Amendment 239.

The noble Lord, Lord Clement-Jones, asked why it is necessary for the Secretary of State to have powers over Ofcom in certain circumstances. We expect the media literacy powers to be used only in exceptional circumstances where it is right that the Secretary of State should have the power to direct the regulator.

[Lord Clement-Jones (LD)]

My Lords, the key question is this: why have these powers over social media when the Secretary of State does not have them over broadcast?

[Lord Parkinson of Whitley Bay (Con)]

If I may, I will write to the noble Lord having reflected on that question further. We are talking here about the provisions set up in the Bill to deal with online harms; clearly, that is the focus here, which is why this Bill deals with that. I will speak to colleagues who look at other areas and respond further to the noble Lord’s question.

Let me reassure the noble Baroness, Lady Fox, that, through this Bill, both Ofcom and providers are being asked to have regard to freedom of expression. Ofcom already has obligations under the Human Rights Act to be bound by the European Convention on Human Rights, including Article 10 rights relating to freedom of expression. Through this Bill, user-to-user and search services will have to consider and implement safeguards for freedom of expression when fulfilling their duties. Those points are uppermost in our minds.

I am grateful for the support expressed by noble Lords for the government amendments in this group. Given the mixed messages of support and the continued work with my noble friend Lady Stowell of Beeston, I urge her not to move her amendments.

Amendment 129 agreed.

Amendment 130 not moved.

Amendments 131 to 133

Moved by

[Lord Parkinson of Whitley Bay]

131: Clause 38, page 41, line 4, leave out “This section applies” and insert “Subsections (1) to (6) apply”
Member’s explanatory statement
This amendment is consequential on the amendment inserting new subsections (9) to (13) into this Clause in my name.

132: Clause 38, page 41, line 5, leave out “it applies” and insert “they apply”
Member’s explanatory statement
This amendment is consequential on the amendment inserting new subsections (9) to (13) into this Clause in my name.

133: Clause 38, page 41, line 7, at end insert—
“(9) Subsection (11) applies to—(a) a draft of the first code of practice prepared under section 36(1) (terrorism code of practice);(b) a draft of the first code of practice prepared under section 36(2) (CSEA code of practice);(c) a draft of the first code of practice prepared under section 36(3) relating to a duty set out in section 9 or 23 (illegal content);(d) a draft of the first code of practice prepared under section 36(3) relating to a duty set out in section 11 or 25 (children’s online safety);(e) a draft of the first code of practice prepared under section 36(3) relating to a duty set out in section 16 or 26 (content reporting);(f) a draft of the first code of practice prepared under section 36(3) relating to—(i) a duty set out in section 17 (complaints procedures) that concerns complaints of a kind mentioned in subsection (4) or (5) of that section, or(ii) a duty set out in section 27 (complaints procedures).(10) For the purposes of paragraphs (c) to (f) of subsection (9) a draft of a code of practice is a draft of the first code of practice relating to a duty if—(a) it describes measures recommended for the purpose of compliance with the duty, and(b) it is a draft of the first code of practice prepared under section 36(3) that describes measures for that purpose.(11) OFCOM must submit a draft to which this subsection applies to the Secretary of State under subsection (1) within the period of 18 months beginning with the day on which this Act is passed.(12) If OFCOM consider that it is necessary to extend the period mentioned in subsection (11) in relation to a draft mentioned in any of paragraphs (a) to (f) of subsection (9), OFCOM may extend the period in relation to that draft by up to 12 months by making and publishing a statement.But this is subject to subsection (15).(13) A statement under subsection (12) must set out—(a) the reasons why OFCOM consider that it is necessary to extend the period mentioned in subsection (11) in relation to the draft concerned, and(b) the period of extension.(14) A statement under subsection (12) may be published at the same time as (or incorporate) a statement under section (Time for publishing first guidance under certain provisions of this Act)(3) (extension of time to prepare certain guidance).(15) But a statement under subsection (12) may not be made in relation to a draft mentioned in a particular paragraph of subsection (9) if—(a) a statement has previously been made under subsection (12) (whether in relation to a draft mentioned in the same or a different paragraph of subsection (9)), or(b) a statement has previously been made under section (Time for publishing first guidance under certain provisions of this Act)(3).”Member’s explanatory statement
This amendment provides that OFCOM must prepare the first draft of certain codes of practice within 18 months of Royal Assent, unless they consider a longer period to be necessary in which case OFCOM may (on one occasion only) extend the period and set out why in a published statement.

Amendments 131 to 133 agreed.

Clause 39: Secretary of State’s powers of direction

Amendments 134 to 137

Moved by

[Lord Parkinson of Whitley Bay]

134: Clause 39, page 41, line 8, at end insert—
“(A1) The Secretary of State may direct OFCOM to modify a draft of a code of practice submitted under section 38(1) if the Secretary of State believes that modifications are required for the purpose of securing compliance with an international obligation of the United Kingdom.(B1) The Secretary of State may direct OFCOM to modify a draft of a code of practice, other than a terrorism or CSEA code of practice, submitted under section 38(1) if the Secretary of State believes that modifications are required for exceptional reasons relating to—(a) national security,(b) public safety,(c) public health, or(d) relations with the government of a country outside the United Kingdom.”Member’s explanatory statement
This amendment (together with other amendments to this Clause in my name) sets out the circumstances in which the Secretary of State can direct OFCOM to modify a draft of a code of practice.

135: Clause 39, page 41, line 9, after second “a” insert “terrorism or CSEA”
Member’s explanatory statement
This amendment is consequential on the other amendments to this Clause in my name.

136: Clause 39, page 41, line 12, leave out “public policy” and insert “national security or public safety”
Member’s explanatory statement
This amendment removes the ability of the Secretary of State to direct OFCOM to modify a draft of a code of practice for public policy reasons.

137: Clause 39, page 41, line 13, leave out paragraph (b) and insert—
“(b) for exceptional reasons relating to public health or relations with the government of a country outside the United Kingdom.”Member’s explanatory statement
This amendment (together with other amendments to this Clause in my name) sets out the circumstances in which the Secretary of State can direct OFCOM to modify a draft of a code of practice.

Amendments 134 to 137 agreed.

Amendment 138

Moved by

[Lord Parkinson of Whitley Bay]

138: Clause 39, page 41, line 37, at end insert “, and
(c) must be published, except where the Secretary of State considers that doing so would have the effect mentioned in paragraph (b).”Member’s explanatory statement
This amendment requires a direction given under Clause 39 to be published except in cases where the Secretary of State considers that to do so would be against the interests of national security, public safety or relations with the government of a country outside the United Kingdom.

[Lord Parkinson of Whitley Bay (Con)]

I beg to move.

Amendment 139 (to Amendment 138) not moved.

Amendment 138 agreed.

Amendments 140 and 141 not moved.

Amendments 142 and 143

Moved by

[Lord Parkinson of Whitley Bay]

142: Clause 39, page 42, line 2, at end insert—
“(ca) publish the document, and”Member’s explanatory statement
This amendment requires OFCOM to publish a document submitted to the Secretary of State in response the Secretary of State giving a direction under this Clause.

143: Clause 39, page 42, line 8, after “subsection” insert “(A1), (B1),”
Member’s explanatory statement
This amendment is consequential on the other amendments to this Clause in my name.

Amendments 142 and 143 agreed.

Amendments 144 and 145 not moved.

Clause 40: Procedure for issuing codes of practice following direction under section 39

Amendments 146 and 147

Moved by

[Lord Parkinson of Whitley Bay]

146: Clause 40, page 42, line 34, leave out “(1)(a)” and insert “(A1), (B1) or (1)(b)”
Member’s explanatory statement
This amendment is consequential on the amendments made to Clause 39 in my name.

147: Clause 40, page 42, line 36, leave out “(b)” and insert “(a)”
Member’s explanatory statement
This amendment is consequential on the amendments made to Clause 39 in my name.

Amendments 146 and 147 agreed.

Clause 43: Minor amendments of codes of practice

Amendment 148 not moved.

Clause 47: OFCOM’s guidance about certain duties in Part 3

Amendments 149 and 150

Moved by

[Lord Parkinson of Whitley Bay]

149: Clause 47, page 48, line 11, at end insert—
“(A1) OFCOM must produce guidance for providers of Category 1 services to assist them in complying with their duties set out in section (Assessment duties: user empowerment) (assessments related to the adult user empowerment duty set out in section 12(2)).”Member’s explanatory statement
This amendment requires OFCOM to produce guidance to assist providers of Category 1 services in carrying out their assessments as required by the new Clause proposed after Clause 11 in my name.

150: Clause 47, page 48, line 20, after “subsection” insert “(A1) or”
Member’s explanatory statement
This amendment requires OFCOM to consult the Information Commissioner before producing guidance mentioned in the preceding amendment in my name.

Amendments 149 and 150 agreed.

Clause 48: OFCOM’s guidance: content that is harmful to children and user empowerment

Amendment 151

Moved by

[Lord Parkinson of Whitley Bay]

151: Clause 48, page 48, line 33, leave out “12(9)” and insert “(User empowerment duties: interpretation)”
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 12 into two Clauses.

Amendment 151 agreed.

Amendment 152

Moved by

[Lord Parkinson of Whitley Bay]

152: After Clause 48, insert the following new Clause—
“OFCOM’s guidance about protecting women and girls
(1) OFCOM must produce guidance for providers of Part 3 services which focuses on content and activity—(a) in relation to which such providers have duties set out in this Part or Part 4, and(b) which disproportionately affects women and girls.(2) The guidance may, among other things—(a) contain advice and examples of best practice for assessing risks of harm to women and girls from content and activity mentioned in subsection (1), and for reducing such risks;(b) refer to provisions contained in a code of practice under section 36 which are particularly relevant to the protection of women and girls from such content and activity.(3) Before producing the guidance (including revised or replacement guidance), OFCOM must consult—(a) the Commissioner for Victims and Witnesses,(b) the Domestic Abuse Commissioner, and(c) such other persons as OFCOM consider appropriate.(4) OFCOM must publish the guidance (and any revised or replacement guidance).”Member’s explanatory statement
This new Clause requires OFCOM to produce and publish a guidance document focusing on online content and activity which disproportionately affects women and girls.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, as we discussed in Committee, the Bill contains strong protection for women and girls and places duties on services to tackle and limit the kinds of offences and online abuse that we know disproportionately affect them. His Majesty’s Government are committed to ensuring that women and girls are protected online as well as offline. I am particularly grateful to my noble friend Lady Morgan of Cotes for the thoughtful and constructive way in which she has approached ensuring that the provisions in the Bill are as robust as possible.

It is with my noble friend’s support that I am therefore pleased to move government Amendment 152. This will create a new clause requiring Ofcom to produce guidance that summarises, in one clear place, measures that can be taken to tackle the abuse that women and girls disproportionately face online. This guidance will relate to regulated user-to-user and search services and will cover content regulated under the Bill’s frame- work. Crucially, it will summarise the measures in the Clause 36 codes for Part 3 duties, namely the illegal and child safety duties. It will also include a summary of platforms’ relevant Part 4 duties—for example, relevant terms of service and reporting provisions. This will provide a one-stop shop for providers.

Providers that adhere to the codes of practice will continue to be compliant with the duties. However, this guidance will ensure that it is easy and clear for platforms to implement holistic and effective protections for women and girls across their various duties. Any company that says it is serious about protecting women and girls online will, I am sure, refer to this guidance when implementing protections for its users.

Ofcom will have the flexibility to shape the guidance in a way it deems most effective in protecting women and girls online. However, as outlined in this amendment, we expect that it will include examples of best practice for assessing risks of harm to women and girls from content and activity, and how providers can reduce these risks and emphasise provisions in the codes of practice that are particularly relevant to the protection of women and girls.

To ensure that this guidance is effective and makes a difference, the amendment creates a requirement on Ofcom to consult the Domestic Abuse Commissioner and the Victims’ Commissioner, among other people or organisations it considers appropriate, when it creates this guidance. Much like the codes of practice, this will ensure that the views and voices of experts on the issue, and of women, girls and victims, are reflected. This amendment will also require Ofcom to publish this guidance.

I am grateful to all the organisations that have worked with us and with my noble friend Lady Morgan to get to this point. I hope your Lordships will accept the amendment. I beg to move.

[Baroness Morgan of Cotes (Con)]

My Lords, I will speak very briefly to this amendment; I know that the House is keen to get on to other business today. I very much welcome the amendment that the Government have tabled. My noble friend the Minister has always said that they want to keep women and girls safe online. As has been referred to elsewhere, the importance of making our digital streets safer cannot be overestimated.

As my noble friend said, women and girls experience a disproportionate level of abuse online. That is now recognised in this amendment, although this is only the start, not the end, of the matter. I thank my noble friend and the Secretary of State for their engagement on this issue. I thank the chief executive and the chair of Ofcom. I also thank the noble Baroness, Lady Kidron, the right reverend Prelate the Bishop of Gloucester, who I know cannot be here today, and the noble Lord, Lord Knight, who signed the original amendment that we discussed in Committee.

My noble friend has already talked about the campaigners outside the Chamber who wanted there to be specific mention of women and girls in the Bill. I thank Refuge, the 100,000 people who signed the End Violence Against Women coalition’s petition, BT, Glitch, Carnegie UK, Professor Lorna Woods, the NSPCC and many others who made the case for this amendment.

As my noble friend said, this is Ofcom guidance. It is not necessarily a code of practice, but it is still very welcome because it is broader than just the specific offences that the Government have legislated on, which I also welcome. As he said, this puts all the things that companies, platforms and search engines should be doing to protect women and girls online in one specific place. My noble friend mentioned holistic protection, which is very important.

There is no offline/online distinction these days. Women and girls should feel safe everywhere. I also want to say, because I know that my noble friend has had a letter, that this is not about saying that men and boys should not be safe online; it is about recognising the disproportionate levels of abuse that women and girls suffer.

I welcome the fact that, in producing this guidance, Ofcom will have to consult with the Domestic Abuse Commissioner and the Victims’ Commissioner and more widely. I look forward, as I am sure do all the organisations I just mentioned, to working with Ofcom on the first set of guidance that it will produce. It gives me great pleasure to have signed the amendment and to support its introduction.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I know that we do not have long and I do not want to be churlish. I am not that keen on this amendment, but I want to ask a question in relation to it.

I am concerned that there should be no conflation in the best practice guidance between the actual, practical problems of, for example, victims of domestic abuse being stalked online, which is a threat to their safety, or threatened with physical violence—I understand that—and abuse. Abuse is horrible to be on the receiving end of, but it is important for freedom of thought and freedom of speech that we do not make no distinction between words and action. It is important not to overreact or frighten young women by saying that being shouted at is the same as being physically abused.

17:15

I also want to discuss the elephant in the room. Many of us have experienced a huge increase in misogynistic abuse over the past year or so. It is actually due to beliefs, rather than to our being women, but it specifically relates to women who insist that we believe in biological sex, as distinct from gender identity. While there are those who do not want this issue raised, it has become one of the key issues for women when people—trans activists, very often men—attack you for being a woman: attack your physical being and tell you that you cannot claim the word “mother” or “woman” for yourself, and so on and so forth. We have seen it in high-profile cases such as those involving Rosie Duffield MP and Joanna Cherry MP, who have been harassed and treated incredibly badly online because of their gender-critical views.

I ask that the consultations bear that in mind and that we do not ignore the contemporary situation; and that the consultations are not confined, therefore, to the domestic abuse commissioner or the victims’ commissioner but include, for example, LGB Alliance and Sex Matters, and that the Government bring this into scope. I appreciate that the Minister says that the Government cannot interfere in Ofcom, but the Government are saying in this amendment that Ofcom should set up this code. I therefore urge that Ofcom broaden its consultation to take into account the savage online attack on the rights of women who are gender critical due to our belief, ironically, in women as a distinct biological category.

[Baroness Kidron (CB)]

My Lords, I rise briefly to support the noble Baroness, Lady Morgan, to welcome the government amendment and to say that this is a moment of delight for many girls—of all varieties. I echo the noble Baroness, Lady Fox, on the issue of having a broad consultation, which is a good idea. While our focus during the passage of this Bill was necessarily on preventing harm, I hope this guidance will be part of the rather more aspirational and exciting part of the digital world that allows young people to participate in social and civic life in ways that do not tolerate abuse and harm on the basis of their gender. In Committee, I said that we have a duty not to allow digital tech to be regressive for girls. I hope that this is a first step.

[Baroness Burt of Solihull (LD)]

My Lords, on behalf of my party, all the groups mentioned by the noble Baroness, Lady Morgan, and potentially millions of women and girls in this country, I briefly express my appreciation for this government amendment. In Committee, many of us argued that a gender-neutral Bill would not achieve strong enough protection for women and girls as it would fail to recognise the gendered nature of online abuse. The Minister listened, as he has on many occasions during the passage of the Bill. We still have differences on some issues—cyberflashing, for instance—but in this instance I am delighted that he is amending the Bill, and I welcome it.

Why will Ofcom be required to produce guidance and not a code, as in the amendment originally tabled by the noble Baroness, Lady Morgan? Is there a difference, or is it a case of a rose by any other name? Is there a timescale by which Ofcom should produce this guidance? Are there any plans to review Ofcom’s guidance once produced, just to see how well it is working?

We all want the same thing: for women and girls to be free to express themselves online and not to be harassed, abused and threatened as they are today.

[Baroness Merron (Lab)]

My Lords, this very positive government amendment acknowledges that there is not equality when it comes to online abuse. We know that women are 27 times more likely than men to be harassed online, that two-thirds of women who report abuse to internet companies do not feel heard, and three out of four women change their behaviour after receiving online abuse.

Like others, I am very glad to have added my name to support this amendment. I thank the Minister for bringing it before your Lordships’ House and for his introduction. It will place a requirement on Ofcom to produce and publish guidance for providers of Part 3 services in order to make online spaces safer for women and girls. As the noble Baroness, Lady Morgan, has said, while this is not a code of practice—and I will be interested in the distinction between the code of practice that was being called for and what we are expecting now—it would be helpful perhaps to know when we might expect to see it. As the noble Baroness, Lady Burt, just asked, what kind of timescale is applicable?

This is very much a significant step for women and girls, who deserve and seek specific protections because of the disproportionate amount of abuse received. It is crucial that the guidance take a holistic approach which focuses on prevention and tech accountability, and that it is as robust as possible. Can the Minister say whether he will be looking to the model of the Violence against Women and Girls Code of Practice, which has been jointly developed by a number of groups and individuals including Glitch, the NSPCC, 5Rights and Refuge? It is important that this be got right, that we see it as soon as possible and that all the benefits can be felt and seen.

[Lord Parkinson of Whitley Bay (Con)]

I am very grateful to everyone for the support they have expressed for this amendment both in the debate now and by adding their names to it. As I said, I am particularly grateful to my noble friend Lady Morgan, with whom we have worked closely on it. I am also grateful for her recognition that men and boys also face harm online, as she rightly points out. As we discussed in Committee, this Bill seeks to address harms for all users but we recognise that women and girls disproportionately face harm online. As we have discussed with the noble Baroness, Lady Merron, women and girls with other characteristics such as women of colour, disabled women, Jewish women and many others face further disproportionate harm and abuse. I hope that Amendment 152 demonstrates our commitment to giving them the protection they need, making it easy and clear for platforms to implement protections for them across all the wide-ranging duties they have.

The noble Baroness, Lady Burt of Solihull, asked why it was guidance and not a code of practice. Ofcom’s codes of practice will set out how companies can comply with the duties and will cover how companies should tackle the systemic risks facing women and girls online. Stipulating that Ofcom must produce specific codes for multiple different issues could, as we discussed in Committee, create duplication between the codes, causing confusion for companies and for Ofcom.

As Ofcom said in its letter to your Lordships ahead of Report, it has already started the preparatory work on the draft illegal content and child sexual abuse and exploitation codes. If it were required to create a separate code relating to violence against women and girls, this preparatory work would need to be revised, so there would be the unintended—and, I think, across the House, undesired—consequence of slowing down the implementation of these vital protections. I am grateful for the recognition that we and Ofcom have had on that point.

Instead, government Amendment 152 will consolidate all the relevant measures across codes of practice, such as on illegal content, child safety and user empowerment, in one place, assisting platforms to reduce the risk of harm that women and girls disproportionately face.

On timing, at present Ofcom expects that this guidance will be published in phase 3 of the implementation of the Bill, which was set out in Ofcom’s implementation plan of 15 June. This is when the duties in Part 4 of the Bill, relating to terms of service and so on, will be implemented. The guidance covers the duties in Part 4, so for guidance to be comprehensive and have the most impact in protecting women and girls, it is appropriate for it to be published during phase 3 of the Bill’s implementation.

The noble Baroness, Lady Fox, mentioned the rights of trans people and the rights of people to express their views. As she knows, gender reassignment and religious or philosophical belief are both protected characteristics under the Equality Act 2010. Sometimes those are in tension, but they are both protected in the law.

With gratitude to all the noble Lords who have expressed their support for it, I commend the amendment to the House.

[Baroness Fox of Buckley (Non-Afl)]

The Minister did not quite grasp what I said but I will not keep the House. Would he be prepared to accept recommendations for a broader consultation—or who do I address them to? It is important that groups such as the Women’s Rights Network and others, which suffer abuse because they say “I know what a woman is”, are talked to in a discussion on women and abuse, because that would be appropriate.

[Lord Parkinson of Whitley Bay (Con)]

I am sorry—yes, the noble Baroness made a further point on consultation. I want to reassure her and other noble Lords that Ofcom has the discretion to consult whatever body it considers appropriate, alongside the Victims’ Commissioner, the Domestic Abuse Commissioner and others who I mentioned. Those consultees may not all agree. It is important that Ofcom takes a range of views but is able to consult whomever. As I mentioned previously, Ofcom and its officers can be scrutinised in Parliament through Select Committees and in other ways. The noble Baroness could take it up directly with them but could avail herself of those routes for parliamentary scrutiny if she felt that her pleas were falling on deaf ears.

Amendment 152 agreed.

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

Amendment 152A

Moved by

[Lord Clement-Jones]

152A: Clause 49, page 49, line 22, at end insert “including user generated or controlled characters and objects with which user characters interact in visual or audio environments within which users interact”
Member’s explanatory statement
This amendment seeks to probe whether the bill sufficiently covers certain harmful content users may encounter in services, for example in the metaverse.

[Lord Clement-Jones (LD)]

My Lords, we had a pretty extensive future-proofing debate in Committee, which I was sadly unable to take part in, but I start this debate with a sinking feeling about the scope of the Bill. This amendment relates to the metaverse in particular.

In metaverse or game-type settings, users interact in a visual or audio environment that is wholly or in part created by the service provider. An analogy might be that the service provider supplies an immersive stage environment for people to act upon, complete with scenery, computer-generated props and characters, some of which could be harmful. The environment created or enabled by the service provider could itself be harmful to children and even adults—for instance, a World War II concentration camp, a sex shop or a Ku Klux Klan rally; at least one online game has allowed people to play the role of an Auschwitz camp guard.

I am particularly influenced by a report from the Center for Countering Digital Hate, Horizon Worlds Exposed, and the research for it, which was carried out by the online CSEA covert intelligence team. This may have been cited earlier but they found that minors are routinely harassed and exposed to adult content on Meta’s flagship virtual reality social network, Horizon Worlds. The research follows Meta’s announcements that Horizon Worlds would be opening up to 13 to 17 year-olds, showing that it is already failing to prevent minors accessing mature content, despite a supposed ban on them accessing its VR applications.

17:30

I am sure that the Minister is familiar with the OCCIT report, which is concerning. There are many more lurid stories. There was a Mail Online story— I hasten to add that I am not a regular reader of the Mail Online—with the great headline, “Chilling chats self-styled ‘assassin’ had with AI bot ‘girlfriend’ who encouraged him to kill the late Queen at Windsor Castle”. We want to avoid such lurid headlines, if possible, but there is a serious point behind this. The Bill acts on user-generated content, but it might not catch the features provided as part of the service, even though it covers user interactions in that environment. Recent government amendments proposed by the Minister try to catch bots, but they do not encompass the static components I have described.

Such issues ought to be caught by the general child safety duty. Possibly, adults should be allowed to use the user empowerment tools in Clause 12 to protect themselves from the risks that Parliament has identified, if they arise from such features—at least, they should be made aware of the potential risks. The illegal content duty might apply there, but there would be difficulties with what is described as “mens rea” or intent. It would be good to get a clear statement from the Government at the Dispatch Box.

When I tried to put down an amendment that attempted to include the provider environment, I discovered from the Public Bill Office that it was out of scope. I think that that means that there are big questions marks over the Bill in that sense. All I could get down was this amendment to include

“user generated or controlled characters and objects with which user characters interact in visual or audio environments within which users interact”.

That speaks volumes about what is excluded from the Bill, and it makes the point that I am trying to make: provider content, such as anti-Semitic slogans on backdrops in an immersive environment, is not entirely within the scope of the Bill. My amendment, as drafted, will not tackle that issue, because I am not able to put down an amendment which might.

I believe that there is a case to answer by the Government. Things are moving very fast—I entirely understand that it is difficult to keep up, in a sense, with the changes—but the metaverse should not be beyond the scope of the Bill and nor should the environments created by it. If we do not include that kind of provider environment in its scope, we will fail our children and vulnerable adults and we will be falling down on the job. We have waited five years to get the Bill through, so to knowingly pass a Bill without the right provisions and the proper future-proofing would be grossly negligent. I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, I am most grateful to the noble Lord, Lord Clement-Jones, for tabling the amendment. If I had been quicker, I would have added my name to it, because he may— I use the word “may” advisedly, because I am not sure—have identified quite a serious gap in terms of future-proofing. As far as I understand it, in a somewhat naive way, the amendment probes whether there is a gap between provider-generated content and user-generated content and whether provider-generated content could lead to a whole lot of ghastly stuff on the metaverse without any way of tackling it because it is deemed to have fallen outside the scope of the Bill.

I am grateful to Carnegie UK for having tried to talk me through this—it is pretty complicated. As a specific example, I understand that a “Decentraland” avatar pops up on gaming sites, and it is useful because it warns you about the dangers of gambling and what it can lead to. But then there is the problem about the backdrop to this avatar: at the moment, it seems to be against gambling, but you can see how those who have an interest in gambling would be quite happy to have the avatar look pretty hideous but have a backdrop of a really enticing casino with lots of lights and people streaming in, or whatever. I am not sure where that would fit, because it seems that this type of content would be provider-generated. When it comes to the metaverse and these new ways of interacting with 3D immersion, I am not clear that we have adequately caught within the Bill some of these potentially dangerous applications. So I hope that the Minister will be able to clarify it for us today and, if not, possibly to write between now and the next time that we debate this, because I have an amendment on future-proofing, but it is in a subsequent group.

[Baroness Kidron (CB)]

My Lords, I am interested to hear what the Minister says, but could he also explain to the House the difference in status of this sort of material in Part 5 versus Part 3? I believe that the Government brought in a lot of amendments that sorted it out and that many of us hoped were for the entire Bill, although we discovered, somewhat to our surprise, that they were only in Part 5. I would be interested if the Minister could expand on that.

[Lord Knight of Weymouth (Lab)]

My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for raising this; it is important. Clause 49(3)(a)(i) mentions content

“generated directly on the service by a user”,

which, to me, implies that it would include the actions of another user in the metaverse. Sub-paragraph (ii) mentions content

“uploaded to or shared on the service by a user”,

which covers bots or other quasi-autonomous virtual characters in the metaverse. As we heard, a question remains about whether any characters or objects provided by the service itself are covered.

A scenario—in my imagination anyway—would be walking into an empty virtual bar at the start of a metaverse service. This would be unlikely to be engaging: the attractions of indulging in a lonely, morose drink at that virtual bar are limited. The provider may therefore reasonably configure the algorithm to generate characters and objects that are engaging until enough users then populate the service to make it interesting.

Of course, there is the much more straightforward question of gaming platforms. On Monday, I mentioned “Grand Theft Auto”, a game with an advisory age of 17—they are still children at that age—but that is routinely accessed by younger children. Shockingly, an article that I read claimed that it can evolve into a pornographic experience, where the player becomes the character from a first-person angle and received services from virtual sex workers, as part of the game design. So my question to the Minister is: does the Bill protect the user from these virtual characters interacting with users in virtual worlds?

[Lord Parkinson of Whitley Bay (Con)]

I will begin with that. The metaverse is in scope of the Bill, which, as noble Lords know, has been designed to be technology neutral and future-proofed to ensure that it keeps pace with emerging technologies—we have indeed come a long way since the noble Lord, Lord Clement-Jones, the noble Lords opposite and many others sat on the pre-legislative scrutiny committee for the Bill. Even as we debate, we envisage future technologies that may come. But the metaverse is in scope.

The Bill will apply to companies that enable users to share content online or to interact with each other, as well as search services. That includes a broad range of services, such as websites, applications, social media services, video games and virtual reality spaces, including the metaverse.

Any service that enables users to interact, as the metaverse does, will need to conduct a child access test and will need to comply with the child safety duties—if it is likely to be accessed by children. Content is broadly defined in the Bill as,

“anything communicated by means of an internet service”.

Where this is uploaded, shared or directly generated on a service by a user and able to be encountered by other users, it will be classed as user-generated content. In the metaverse, this could therefore include things like objects or avatars created by users. It would also include interactions between users in the metaverse such as chat—both text and audio—as well as images, uploaded or created by a user.

[Lord Clement-Jones (LD)]

My Lords, I hope I am not interrupting the Minister in full flow. He has talked about users entirely. He has not yet got to talking about what happens where the provider is providing that environment—in exactly the way in which the noble Lord, Lord Knight, illustrated.

[Lord Parkinson of Whitley Bay (Con)]

We talked about bots controlled by service providers before the noble Lord, Lord Knight, asked questions on this. The Bill is designed to make online service providers responsible for the safety of their users in light of harmful activities that their platforms might facilitate. Providers of a user-to-user service will need to adhere to their duties of care, which apply to all user-generated content present on their service. The Bill does not, however, regulate content published by user-to-user providers themselves. That is because the providers are liable for the content they publish on the service themselves. The one exception to this—as the noble Baroness, Lady Kidron, alluded to in her contribution—is pornography, which poses a particular risk to children and is regulated by Part 5 of the Bill.

I am pleased to reassure the noble Lord, Lord Clement- Jones, that the Bill—

[Baroness Kidron (CB)]

I thank the noble Lord for giving way. The Minister just said that private providers will be responsible for their content. I would love to understand what mechanism makes a provider responsible for their content?

[Lord Parkinson of Whitley Bay (Con)]

I will write to noble Lords with further information and will make sure that I have picked up correctly the questions that they have asked.

On Amendment 152A, which the noble Lord, Lord Clement-Jones, has tabled, I am pleased to assure him that the Bill already achieves the intention of the amendment, which seeks to add characters and objects that might interact with users in the virtual world to the Bill’s definition of user-generated content. Let me be clear again: the Bill already captures any service that facilitates online user-to-user interaction, including in the metaverse or other augmented reality or immersive online worlds.

The Bill broadly defines “content” as

“anything communicated by means of an internet service”,

so it already captures the various ways in which users may encounter content. Clause 211 makes clear that “encounter” in relation to content for the purposes of the Bill means to,

“read, view, hear or otherwise experience”

content. That definition extends to the virtual worlds which noble worlds have envisaged in their contributions. It is broad enough to encompass any way of encountering content, whether that be audio-visually or through online avatars or objects.

In addition, under the Bill’s definition of “functionality”,

“any feature that enables interactions of any description between users of the service”

will be captured. That could include interaction between avatars or interaction by means of an object in a virtual world. All in-scope services must therefore consider a range of functionalities as part of their risk assessment and must put in place any necessary measures to mitigate and manage any risks that they identify.

I hope that that provides some assurance to the noble Lord that the concerns that he has raised are covered, but I shall happily write on his further questions before we reach the amendment that the noble Baroness, Lady Finlay, rightly flagged in her contribution.

[Lord Clement-Jones (LD)]

I thank the Minister. I feel that we have been slightly unfair because we have been asking questions about an amendment that we have not been able to table. The Minister has perfectly well answered the actual amendment itself and has given a very positive reply—and in a sense I expected him to say what he said about the actual amendment. But, of course, the real question is about an amendment that I was unable to table.

17:45

We have those two issues about provider material, and exactly the point that the noble Baroness, Lady Kidron, made about chapter and verse for the provider liability in those circumstances. If we knew the answer to that, and that it was absolutely clear in the Bill, we would be more reassured than we have been so far. In the meantime, I beg leave to withdraw my amendment.

Amendment 152A withdrawn.

Amendments 153 to 157

Moved by

[Lord Parkinson of Whitley Bay]

153: Clause 49, page 49, line 27, after “bot” insert “or other automated tool”
Member’s explanatory statement
This amendment, and the next two amendments in my name, make it clear that an automated tool which is not a bot - as well as a bot - may be regarded as a user for the purposes of the definition of “user-generated content”.

154: Clause 49, page 49, line 28, leave out “bot’s functions” and insert “functions of the bot or tool”
Member’s explanatory statement
See the explanatory statement to the preceding amendment in my name.

155: Clause 49, page 49, line 30, after “bot” insert “or tool”
Member’s explanatory statement
See the explanatory statement to the first amendment of this Clause in my name.

156: Clause 49, page 49, line 38, leave out “description” and insert “kind”
Member’s explanatory statement
This amendment ensures consistency of language in referring to kinds of content.

157: Clause 49, page 49, line 45, leave out from beginning to end of line 2 on page 50 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 Clause 49(6) of the Bill (which provides that comments/reviews on provider content don’t count as regulated user-generated content). 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.

Amendments 153 to 157 agreed.

Amendment 158

Moved by

[Lord Parkinson of Whitley Bay]

158: Clause 49, page 50, line 17, leave out sub-paragraphs (ii) and (iii) and insert—
“(ii) is video or audio content that was originally published or broadcast by a recognised news publisher, and is not a clipped or edited form of such content (unless it is the recognised news publisher who has clipped or edited it), or(iii) is a link to an article or item within sub-paragraph (i) or to content within sub-paragraph (ii).”Member’s explanatory statement
This amendment revises the definition of “news publisher content” so that, in particular, online content published by a recognised news publisher that has not first been broadcast is covered by the definition.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, as noble Lords know, His Majesty’s Government are committed to defending the invaluable role of a free media, and our online safety legislation must protect the vital role of the press in providing people with reliable and accurate information online. That is why we have included strong protections for recognised news publishers in the Bill.

Clause 49(9) and (10) set out what is considered “news publisher content” in relation to a regulated user-to-user service, while Clause 52 sets out that news publishers’ content is exempt from search services’ duties. The government amendments clarify minor elements of these exemptions and definitions. Given the evolving consumption habits for news, recognised news publishers might clip or edit content from their published or broadcast versions to cater to different audiences and platforms. We want to ensure that recognised news publisher content is protected in all its forms, as long as that content is created or generated by the news publishers themselves.

First, our amendments clarify that any video or audio content published or broadcast by recognised news publishers will be exempt from the Bill’s safety duties and will benefit from the news publisher appeals process, when shared on platforms in scope of the Bill. These amendments ensure that old terminology works effectively in the internet age. The amendments now also make it clear that any news publisher content that is clipped or edited by the publisher itself will qualify for the Bill’s protections when shared by third parties on social media. However, these protections will not apply when a third-party user modifies that content itself. This will ensure that the protections do not apply to news publisher content that has been edited by a user in a potentially harmful way.

The amendments make it clear that the Bill’s protections apply to links to any article, video or audio content generated by recognised news publishers, clipped or edited, and regardless of the form in which that content was first published or broadcast. Taken together, these amendments ensure that our online safety legislation protects recognised news publishers’ content as intended. I hope noble Lords will support them. I beg to move.

[Lord Lipsey (Lab)]

My Lords, Amendments 159 and 160 are in my name and those of the noble Lord, Lord McNally, and the noble Baronesses, Lady Hollins and Lady Newlove. First, I apologise for the fact that this is the first time I have spoken on the Bill. That was not the plan: illness intervened. Anyway, I am all better now, thanks.

The purport of the amendments is simple. Content posted on social media by newspapers benefits, under the Bill as it stands, from exemption from any regulatory action by the platforms. Nowhere does the Bill set up a system for the public to complain about such pieces. Newspapers can have any complaints system they want and still benefit from the exemption. Under our amendments, the exemption would apply only to newspapers that have a system for public complaints that meets proper standards—at the very least, the complaints code must be independently set up and not under the control of newspapers, their editors or any puppet regulators they may set up.

Noble Lords will have noticed that the amendments do not say that the system must measure up to the standards required by the Press Recognition Panel and monitored by a body approved by that panel; at the moment, only Impress would qualify. We have omitted that particular way of making sure that the complaints system works not because it would not be perfectly good—it would—but because the very mention of PRP/Impress is a red rag to a bull to those who control the press, so we kept the red rag in our pockets. This, of course, says more about those who control the press than about the admirable PRP/Impress set-up, which has, within its limited practical scope, been doing a very fine job.

What the amendments do mean, however, is that newspapers cannot any more hide behind their fig leaf IPSO, the so-called Independent Press Standards Organisation. I know that some Members of your Lordships’ House are IPSO fans who fought for it tooth and nail; indeed, the noble Lord, Lord Faulks, is its chair. I pay tribute to that organisation: the political skills it has deployed in its attempts to give itself credibility have amazed even me, somebody who has been around politics for nearly 50 years. Two former Northern Ireland officials have been hired to produce whitewash reports on it: appointed by IPSO, terms of reference from IPSO and paid for by IPSO. They did their duty. Only last week—perhaps it knew the Bill was coming up in your Lordships’ House—it actually upheld a complaint: that against Jeremy Clarkson for abusing Meghan. That was an event as rare as bumping into a dodo on the streets one night: only three in 1,000 complaints are upheld by IPSO.

A more objective academic view of IPSO than mine was provided by the Media Standards Trust, a study by the academics Martin Moore and Gordon Ramsay published in 2019. It found that IPSO fell short on 25 of 38 Leveson recommendations. I am sorry—we have not heard the word “Leveson” for a while, and I am not sure we are still allowed to utter it, but I will. IPSO has never in its history established a single standards investigation. It has never fined a publisher. It and its editors set the code to suit themselves.

Ever intrepid, I once tried complaining about a case—a slam dunk case, if I may ask the House to take my word for it—against the Express about its use of something it wrongly described as a poll. It was an intriguing experience. IPSO followed the procedural rules minutely and scrupulously, if slowly. The Express obfuscated. Eventually, IPSO produced a ruling that was so bizarre and incomprehensible that I hesitate to describe it to the House and, of course, turned down my complaint. That experience is very typical. Some 1,500 people give up on their complaints every year, despairing of fighting their way through IPSO and the newspapers’ attritional system. The average complaint takes about six months to resolve.

These amendments, partly for the reasons I have already mentioned, do not attempt to specify what body can rule. It could be a body approved by the PRP or one adhering to another kosher code. What should be clear, however, is that the regulator should not be a pussycat regulator controlled by the press, as IPSO is. It should be a genuinely independent regulator with a genuinely independent code to enforce.

“You’re against free speech, Lipsey; you want state regulation”. But there is no inhibition on free speech in our amendments. They merely provide a way of hearing complaints after pieces have been printed, and the state need have nothing to do with it. Incidentally, I find great curiosity in the way in which this state regulation bogey is played about with in this debate. In fact, Ofcom is already a state regulator of many of the things that would be covered by our amendments. Nevertheless, the cry of “state regulation” is obviously red blood that the proponents of total freedom want.

I too want freedom. I spent a third of my working life as a journalist. I was deputy editor of two national newspapers and Bagehot of the Economist. I believe in press freedom to my very core. If I thought for a moment that these amendments in any way threatened press freedom, I would not be proposing them tonight, but I am perfectly certain that they would not. Instead, they would put some inhibition on newspapers planning to abuse often innocent people on their websites; not stopping them saying it but subjecting them to complaints if they do so, which would be independently adjudicated.

I, my co-signatories and my noble friends on the Front Bench are aware that a media Bill is coming up this Session, next Session or sometime sooner or later— I hope sooner, obviously. That will explicitly end the incentives for newspapers to join an independent regulatory system, such as PRP/Impress, by repealing Section 40 of the Act that gives them the incentives to do so. When we last debated these matters, my noble friend Lord Knight on the Front Bench argued that this Bill was not the right way to tackle the complaints problem, and that it could be done under the media Bill. I am pleased to say that my party, the Labour Party, has specifically pledged that it will not repeal Section 40 in any media Bill introduced if and when it takes power. I respect my noble friend Lord Knight’s argument so, for the avoidance of doubt, we shall not seek the opinion of the House on this amendment. But let the press be in no doubt: Parliament remains on the case—sometimes more intently, sometimes less intently; once agreed on the royal charter, but that has gone down the river; but always ready to act if the newspapers defeat the rights of the public to complain.

We will not finish the job tonight, nor with this Bill, but examples of egregious press behaviour continue to mount up. I know that some of them are in the past, and we were all following the recent High Court case, but they still appear to be around. The question will not go away. The Government continue to attempt to curry favour with the press—the Prime Minister even went to a Rupert Murdoch party rather than attend a climate conference—but, at the end of the day, the power of the press is declining. The force of those who argue for a better complaints system multiplies. Sooner or later, something will have to be done.

18:00

[Lord McNally (LD)]

My Lords, my name is also to this amendment. I am moved by a phrase used by the noble Lord, Lord Stevenson, on Monday; he said the passage of this Bill has been a “series of conversations”. So it has been. The way the Minister has engaged with the House on many of the concerns that the Bill tries to cover has been greatly to his credit.

It is somewhat unknown how much the new technologies will impact on our democracy, our privacy and the safety of our children, although they have all been discussed with great thoroughness. That is why the opt-out for recognised news publishers is something of a puzzle, unless you assume that the Government have caved in to pressure from that sector. Why should it be given this opt-out? It is partly because if you ask the press to take responsibility in any way, it becomes like Violet Elizabeth Bott in the Just William stories; it “thkweems and thkweems”—usually led by the noble Lord, Lord Black, whom I am glad to see in his place —and talks about press freedom.

My skin in this game is that I was the Minister in the Lords when the Leveson inquiry was under way and when we took action to try to implement its findings. It is interesting that at that point there was cross-party agreement in both Houses on how to implement them. I advise anybody intending to go into coalitions in future not to take the Conservative Party’s assurances on such matters totally at face value, as that cross-party agreement to implement Leveson was reneged on by the Conservative Party under pressure from the main newspaper publishers.

It was a tragedy, because the “series of conversations” that the noble Lord, Lord Stevenson, referred to will be ongoing. We will not let the press off the hook, no matter how much it wields its power. It is just over 90 years since Stanley Baldwin’s famous accusation of

“power without responsibility—the prerogative of the harlot throughout the ages”.

It is just over 30 years since David Mellor warned the press that it was in the “last chance saloon” and just over 10 years since Rupert Murdoch said that appearing before the Leveson inquiry, with a curious choice of language, was

“the most humble day of my life”.

Of course, like water off a duck’s back, once the pressure was off and the deal had been done with the Conservative Party, we could carry on on our own merry way.

It was a tragedy too because the Leveson settlement—as I think the PRP and Impress have proved—works perfectly well. It is neither state controlled nor an imposition on a free press. Like the noble Lord, Lord Lipsey, I greatly resent the idea that this is somehow an attempt to impose on a free press. It is an attempt to get the press to help the whole of our democracy and make things work properly, just as this Bill attempts to do.

Someone mentioned Rupert Murdoch’s recent summer party. The Prime Minister was not the only one who went—so did the leader of the Opposition. I like to think that Mr Attlee would not have gone. I am not sure that my old boss, Jim Callaghan, would have gone. I do not think that either would have flown half way around the world, as Tony Blair did, to treat with him. The truth is that, over the last decade or so, in some ways the situation has got worse. Politicians are more cowed by the press. When I was a Minister and we proposed some reasonably modest piece of radical change, I was told by my Conservative colleague, “We’ll not get that through; the Daily Mail won’t tolerate it”. That pressure on politics means we need politicians with the guts to resist it.

Those who want a genuinely free press would not leave this festering wound. I will not join in the attack on the noble Lord, Lord Faulks, because we worked together very well in coalition. I would prefer to see IPSO reform itself to become Leveson-compliant. That would not bring any of the dangers that we will hear about from the noble Lord, Lord Black, but it would give us a system of press regulation that we could all agree with.

On Section 40, I remember well the discussions about how we would give some incentive to join. A number of my colleagues feel uncomfortable about Section 40 making even the winners pay, but the winner pays only if they are not within a Leveson-compliant system. That was, perhaps innocently, thought of as a carrot to bring the press in, though, of course, it does not read easily. Frankly, if Section 40 were to go but IPSO became Leveson-compliant, that would be a fair deal.

This Bill leaves us with some very dangerous loopholes. Some of the comments underneath in the press and, as the Minister referred to, the newsclips that can be added can be extremely dangerous if children are exposed to them.

There are many other loopholes that this genuflection to press power is going to leave in the Bill and which will lead to problems in the future. Rather than launch another attack—because you can be sure another case will come along or another outrage will happen, and perhaps this time, Parliament will have the guts to deal with it—it would be far better if the media itself saw Leveson for what it was: a masterful, genuine attempt to put a free press within the context of a free society and protect the individuals and institutions in that society in a way that is in all our interests. As the noble Lord, Lord Lipsey, said, we are not pushing this tonight, but we are not going to go away.

[Viscount Colville of Culross (CB)]

My Lords, I have been a journalist my whole career and I have great respect for the noble Lords who put their names to Amendments 159 and 160. However, I cannot support another attempt to lever Section 42 of the Crime and Courts Act into the Bill. In Committee I put my name to Amendment 51, which aims to protect journalism in the public interest. It is crucial to support our news outlets, in the interests of democracy and openness. We are in a world where only a few newspapers, such as the New York Times, manage to make a profit from their digital subscribers. I welcome the protection provided by Clause 50; it is much needed.

In the past decade, the declining state of local journalism has meant there is little coverage of magistrates’ courts and council proceedings, the result being that local public servants are no longer held to account. At a national level, newspapers are more and more reluctant to put money into investigations unless they are certain of an outcome, which is rarely the case. Meanwhile, the tech platforms are using newspapers’ contents for free or paying them little money, while disaggregating news content on their websites so the readers do not even know its provenance. I fear that the digital era is putting our legacy media, which has long been a proud centrepiece of our democracy, in great danger. The inclusion of these amendments would mean that all national newspapers and most local media would be excluded from the protections of the clause. The Bill, which is about regulating the digital world, should not be about trying to limit the number of newspapers and news websites covered by the protections of Clause 50; it would threaten democracy at a local and national level.

[Lord Black of Brentwood (Con)]

My Lords, I am very pleased to say a few words, because I do not want to disappoint my good friend the noble Lord, Lord McNally, who has obviously read the text of my speech before I have even delivered it. I declare my interests as deputy chairman of the Telegraph Media Group and a director of the Regulatory Funding Company, and note my other interests as set out in the register.

It will not come as a surprise that I oppose Amendments 159 and 160. I am not going to detain your Lordships for long; there are other more important things to talk about this evening than this seemingly never-ending issue, about which we had a good discussion in Committee. I am sorry that the two noble Lords were indisposed at that time, and I am glad to see they are back on fighting form. I am dispirited that these amendments surfaced in the first place as I do not think they really have anything to do with online safety and the protection of children. This is a Bill about the platforms, not the press. I will not repeat all the points we discussed at earlier stages. Suffice it to say that, in my view, this is not the time and the place to seek to impose what would be statutory controls on the press, for the first time since that great liberal, John Locke, led the charge for press freedom in 1695 when the Licensing Acts were abolished. Let us be clear: despite what the two noble Lords said, that is what these amendments would do, and I will briefly explain why.

These amendments seek to remove the exemption for news publishers from an onerous statutory regime overseen by Ofcom, which is, as the noble Lord, Lord Lipsey, said, a state regulator, unless they are part of an approved regulator. Yet no serious publisher, by which I mean the whole of the national and regional press, as the noble Viscount, Lord Colville, said—including at least 95% of the industry, from the Manchester Evening News to Cosmopolitan magazine—is ever going to join a regulator which is approved by the state. Even that patron saint of press controls, Sir Brian Leveson, conceded that this was a “principled position” for the industry to take. The net effect of these amendments would be, at a stroke, to subject virtually the entire press to state regulation—a momentous act wholly inimical to any definition of press freedom and free speech—and with very little discussion and absolutely no consultation.

18:15

The Bill would then become not the Online Safety Act but the state regulation of the press Act, changed entirely from something in which we should take great pride to something deeply controversial and condemned across the globe. I say to the noble Lord, Lord McNally, that on a basic administrative level, it would no longer be possible to certify that the legislation accords with the Human Rights Act, as statutory press controls of this sort have always been found to be in contravention of the ECHR’s provisions on freedom of expression. That is why this is not the place for so fateful a piece of legislation; nor is it the time. As the noble Lord, Lord Lipsey, said, I hope that, within months, we will have a media Bill which will contain provisions to repeal the odious Section 40 of the Crime and Courts Act, in line with the Government’s manifesto commitment. If noble Lords do wish to discuss press regulation and re-open issues which were settled a decade ago—and, indeed, that relate to events which took place two decades ago—that is the time to do it, not here and now.

I am pleased to hear from the noble Lord that he will not divide the House, because to do so would be to hijack this important legislation, in which we should all take great pride, and turn it into something it was never intended to be.

[Lord Faulks (Non-Afl)]

My Lords, I declare my interest—although I think it has already been declared for me by the noble Lords, Lord McNally and Lord Lipsey—as the chair of the Independent Press Standards Organisation.

We had this debate in Committee, although not with the same actors; I am glad to see both of them now back in their places and restored to health. However, I cannot welcome all the comments they made, particularly not those of the noble Lord, Lord Lipsey, critical as he was of IPSO. I should tell the House that IPSO is not on the side of the press. It is not on anybody’s side: it is an independent organisation for the regulation of the press that regulates, by circulation, some 95% of both national and regional newspapers.

The noble Lord, Lord Lipsey, spoke of how ineffective we were as an organisation and was rather disparaging about the reviews of IPSO’s governance and operations. I ought, at the very least, to maintain a defence of Sir Bill Jeffrey, a very distinguished civil servant in the Ministry of Defence who recently carried out a report on IPSO. I hope that Members of your Lordships’ House, particularly the noble Lords, Lord Lipsey and Lord McNally, will read the report to see in what ways they consider IPSO is still not showing its independence, but I would very much defend Sir Bill Jeffrey’s independence and the way in which he approached the task. I think it unfortunate that he was attacked in the way he was by the noble Lord. I give way.

[Lord Lipsey (Lab)]

Does the noble Lord agree that a report which gives as part of its evidence conversations with a sample of precisely 12 complainants cannot be taken seriously?

[Lord Faulks (Non-Afl)]

The report must be read as a whole. I do not accept at all what the noble Lord has said. It is worth visiting the IPSO website, because he was very disparaging about the number of complaints that were upheld. IPSO is very transparent; its website shows all the decisions that were reached and the way in which they were reached. I invite those who doubt its independence to look at the constituent elements of those who are on the complaints committee and the board, and all the published decisions, in order to decide whether IPSO is indeed in the pockets of the press, which seemed to be the suggestion made by both noble Lords.

Of course, the approved regulator, Impress, has very little work to do. I am sure it does its work highly conscientiously. The code by which it regulates is remarkably similar to the editors’ code, which is produced by the industry, it is true, with contributions from all sorts of people. It varies from year to year. There is very little criticism of the editors’ code. It provides a very sensible and balanced view to make the press accountable, allowing the complaints committee to decide whether there has been a violation of the code.

The noble Lord, Lord Lipsey, said that at last it has found the press to be in breach of that code in the recent complaint. It was interesting that the complaints body which I chair was alleged to not be independent of the press. It was roundly criticised by the press for coming to that decision—by the Times, the Telegraph and the Daily Mail. At the same time, it is said that the organisation which I chair is not independent. It is of course independent and will continue to be so.

As for Section 40, before I had anything to do with press regulation, I did not like it. As a lawyer, the idea of somebody having a free hit against anybody is unattractive. Whatever you think of press regulation, I do not think that Section 40 should commend itself to anybody. As they have promised for some time, the Government are quite right to include it in the media Bill, which is to come before your Lordships’ House in due course. It has been a sword of Damocles hanging over the industry. It is not helpful, and I hope that it is repealed. I understand that the Labour Party and perhaps the Liberal Democrats will bring back something of that sort. I understand they may be opposing it when it comes into the media Bill, but that is a matter for them in due course.

Of course, the press should be accountable. Of course, it should be properly regulated. The idea of an independent regulator is to provide reassurance that it is being regulated, as opposed to, until this Bill becomes law, social media—which is not regulated—which provides a source for news which is considerably less reliable than all those newspapers which are subject to regulation.

This is not the occasion to go into further debates about Leveson, but it is perhaps worth rereading the Leveson report and the conclusions that Sir Brian reached—which I have done recently. It must be seen, as all reports, as very much of its time. It is particularly interesting to see the extent to which he promoted and advanced the cause of arbitration. Alternative dispute resolution is very much at the centre of what the legal profession as a whole, and Sir Brian Leveson and his committee in particular, advance as a much better way to resolve disputes. There is an arbitration scheme provided by IPSO, as noble Lords and the House may know. Of course, that is an option which we would encourage people to use—consistent with what Sir Brian and his committee recommended. It is not a substitute for going to court, and if people want to, they should be allowed to do so. However, I think there is a case for courts considering having directions whereby, at first, somebody seeking relief in the court should show that they have exhausted alternative remedies, including alternative dispute resolution. I am in favour of that.

On the idea of being Leveson-compliant—I do not think Sir Brian Leveson particularly likes that expression. He made various recommendations, many of which are reflected in what IPSO does now. I understand there is a great deal of history in this debate. I remember the debates myself. No doubt, we will return to them in due course, but I think we should fight today’s battles, and not the battles of 10 years ago or longer. I think the press is much more accountable and responsible than it was. Of course, as parliamentarians, we will carefully watch what the press do and consider carefully whether this exemption is merited. However, I do not think that this amendment is justified and I hope that the Government do not support it.

[Lord Allan of Hallam (LD)]

My Lords, I want to bring the tone of the debate down somewhat to talk about government Amendments 158 and 161 in a rather nerdier fashion. I hope that the House will be patient with me as I do that.

The Minister said that these two amendments introduce some “minor changes” that would make the Bill work as intended. I want to explore whether they are rather more significant than the Minister has given them credit for, and whether they may have unintended consequences. As I understand it, the purpose of the amendments is to ensure that all forms of video and audio content, in long form or short form, whether originally broadcast or made exclusively for social media, will now benefit from the news publisher exemptions.

Particularly thinking about this from a social media point of view—the noble Lord, Lord Faulks, just made the point about news publishers such as newspapers—when we have been looking at the Bill and the news publisher exemption, we have been thinking of the BBC and newspapers. We have been thinking a lot less about people who regard themselves to be news publishers but produce things exclusively for social media—often in a clickbait fashion, using a lot of short-form material. As I read these amendments, they are saying very clearly that this kind of material will benefit from the news publisher exemption. That opens up a whole series of questions we must ask ourselves about whether that will have unintended consequences.

Looking at this in the context of what it takes to be registered as a news publisher in Clause 50, the noble Viscount, Lord Colville, referred to the fact that there is an intention and a view that Clause 50 should be kept broad so that people can register as news publishers. Clearly, that is good for media diversity, but if we look at those tests, they are tests that I think that a lot of organisations could pass. We must ask ourselves who might try to establish themselves as a recognised news publisher. They would need to have an office in the United Kingdom. They would also need to apply our standards code, but Clause 50(6)(b) says that the standards code can be their own standards code—it does not have to be anyone else’s.

I am not going to get into a debate about who should be the press regulator; that is for other noble Lords. As I read it, these internet services could pass the Clause 50(2) test by establishing the office and meeting a few basic requirements, then under Clause 50(6)(b) say, “I’ve got a standards code. It’s my standards code. I’ve written it—on the back of an envelope but it’s a standards code”. Then we need to think about who might want to take advantage of that material. My reading of the Bill, thinking about intention, is that services such as Breitbart News—which is not my cup of tea, but is a recognised news publisher—would pass the test and would be able to establish themselves as a news publisher in the UK, benefiting from the exemptions. Whether or not I agree with it, I can see that is a reasonable unintended outcome.

My concern is about other services, such as Infowars, which I am sure everybody is familiar with. It is a service that has caused untold harm and has been sued in the US courts for defamation—which is a pretty high bar. Infowars has clearly caused so much harm that it has found itself on the wrong end of defamation lawsuits in the United States. I do not think it should in any way be our intention that a service such as Infowars should be able to benefit from the special privileges granted to news publishers under the legislation. I know that it is hard to draw lines, and I am not expecting the Minister to say at the Dispatch Box exactly where the line should be drawn. However, I think that without citing examples such as that, we risk not testing the legislation to destruction—which is precisely what we should be doing here—and ending up in a scenario where we have created a news publisher exemption that could be taken advantage of by the wrong organisations. Someone has to draw a line and make a classification.

As we create this news publisher exemption, it is incumbent on us to describe it to people out there in vernacular terms they would understand. My understanding is that the BBC, the Daily Mail, Breitbart News—all those are in. We expect them to be able to pass the Clause 50 test and we have no problem with that. Russia Today, Infowars and a whole host of other services that brand themselves news but are incredibly harmful and destructive to society and individuals—we would want them to fail the Clause 50 test.

I hope the Minister will at least acknowledge that there is going to be a challenge around bad services run by bad people claiming to be news publishers under Clause 50. I hope he will agree that it is not our intention to give publisher privileges to services such as Infowars that cause so much harm to society.

18:30

I hope the Minister will be able to at least suggest to us where there may be some mechanism for disputes, because I do not see that in the Bill at the moment. We are leaving it to providers to make this judgment and then, presumably, to the disgruntled excluded service to make a complaint and go after the provider. When there is a dispute—when social media companies do what I think we want them to do, which is to not grant special privileges and keep content up when it is coming from these awful people who are causing harm to society—what will be the mechanism for resolving that?

At some point, someone has to say, “You’ve got it right: you shouldn’t be able to classify that as a recognised news publisher”, or, “You’ve got it wrong: actually, the British Government, in all their glory, stand behind the fact that Infowars should be recognised and given these special privileges”. Those are really important questions we have to ask about how this clause will work in practice. Amendments 158 and 161, because they allow explicitly for short-form video made especially for social media, will come to be seen as quite instrumental and not at all minor.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I am completely opposed to Amendments 159 and 160, but the noble Lords, Lord Faulks and Lord Black, and the noble Viscount, Lord Colville, have explained the issues perfectly. I am fully in agreement with what they said. I spoke at length in Committee on that very topic. This is a debate we will undoubtedly come back to in the media Bill. I, for one, am extremely disappointed that the Labour Party has said that it will not repeal Section 40. I am sure that these issues will get an airing elsewhere. As this is a speech-limiting piece of legislation, as was admitted earlier this week, I do not want any more speech limiting. I certainly do not want it to be a media freedom-limiting piece of legislation on top of that.

I want to talk mainly about the other amendments, Amendments 158 and 161, but approach them from a completely different angle from the noble Lord, Lord Allan of Hallam. What is the thinking behind saying that the only people who can clip content from recognised news publishers are the news publishers? The Minister mentioned in passing that there might be a problem of editing them, but it has become common practice these days for members of the public to clip from recognised news publishers and make comments. Is that not going to be allowed? That was the bit that completely confused me. It is too prescriptive; I can see all sorts of people getting caught by that.

The point that the noble Lord, Lord Allan of Hallam, made about what constitutes a recognised news publisher is where the issue gets quite difficult. The point was made about the “wrong” organisations, but I want to know who decides what is right and wrong. We might all nod along when it comes to Infowars and RT, but there are lots of organisations that would potentially fail that test. My concern is that they would not be able to appeal when they are legitimate news organisations, even if not to everybody’s taste. Because I think that we already have too much speech limiting in the Bill, I do not want any more. This is important.

When it comes to talking about the “wrong” organisations, I noticed that the noble Lord, Lord McNally, referred to people who went to Rupert Murdoch’s parties. I declare my interests here: I have never been invited or been to a Rupert Murdoch party—although do feel free, I say, if he is watching—but I have read about them in newspapers. For some people in this Chamber, the “wrong” kind of news organisation is, for example, the Times or one with the wrong kind of owner. The idea that we will all agree or know which news publishers are the “wrong” kind is not clear, and I do not think that the test is going to sort it out.

Will the Minister explain what organisations can do if they fail the recognised news publisher test to appeal and say, “We are legitimate and should be allowed”? Why is there this idea that a member of the public cannot clip a recognised news publisher’s content without falling foul? Why would they not be given some exemption? I genuinely do not understand that.

[Baroness Stowell of Beeston (Con)]

My Lords, I shall speak very briefly. I feel a responsibility to speak, having spoken in Committee on a similar group of amendments when the noble Lords, Lord Lipsey and Lord McNally, were not available. I spoke against their amendments then and would do so again. I align myself with the comments of my noble friend Lord Black, the noble Lord, Lord Faulks, and the noble Viscount, Lord Colville. As the noble Baroness, Lady Fox, just said, they gave a comprehensive justification for that position. I have no intention of repeating it, or indeed repeating my arguments in Committee, but I think it is worth stating my position.

[Lord Clement-Jones (LD)]

My Lords, we have heard some very well-rehearsed lines during the debate today, with the usual protagonists. Nevertheless, the truth of the matter is that the Press Recognition Panel is as frustrated as many of us on these Benches and other Benches at the failure to implement a post-Leveson scheme of press regulation. Despite many efforts, it has never been fully put into effect.

I do not think I need to repeat a great deal of what has been said today. For instance, the record of IPSO, which the noble Lord, Lord Faulks, talked about, has been very well tracked by Hacked Off. This is not a proposal for state regulation—which is so often, if you like, the canard placed on it.

If not this Bill, which Bill? The media Bill is not going to tackle issues such as this, as my noble friend Lord McNally said. As the noble Lord, Lord Stevenson, has pointed out, this Bill has been a series of conversations —extremely fruitful conversations—but in this particular direction it has borne no fruit at all.

I must admit that, throughout my looking at the draft Bill and continuing to look through its various versions, this opt-out for news publishers has remained a puzzle. The below-the-line opt-out for the mainstream news media always strikes me as strange, because there is no qualification that there should be any curation of that below-the-line, user-generated content. That is peculiar, and it is rather like somebody in the last chance saloon being rewarded with a bouquet. It seems a rather extraordinary provision.

My noble friend Lord Allan rightly pointed to some of the dangers in the new provisions, and indeed in the provisions generally, for these services. I hope the Minister has at least some answers to give to the questions he raised. Progress on this and the scheme that the PRP was set up to oversee, which is still not in place, remain a source of great division across the parties and within them. There is still hope; it may be that under a different Government we would see a different result.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I was unfortunately unable to attend round 1 of this debate—I had to leave. My noble friend Lord Knight has absented himself from hearing what I am going to say about his remarks, so he must fear that he had got his lines wrong. I apologised to him for leaving him a bit exposed, because we had not quite anticipated how the conversation would go, but I think he did as well as he could, and I repeat the lines he said: this is not the right Bill to rerun the arguments about the Leveson report. I still believe that. The noble Lord, Lord Clement-Jones, does not think the media Bill is; maybe it is not, but at least we can make sure that the debate is properly argued.

It is interesting that, although we clearly have well-defined positions and antipathies present in the debate, a number of things have been said today that will be helpful, if we manage to get a little closer, in trying to resolve some of the issues outstanding. If I am still around and involved in it, I will approach this by trying to see what we can do together rather than the rights and wrongs of positions we have adopted before. It has worked for this Bill: we have achieved huge changes to the Bill because we decided from the start that we would try to see what was the best that could come out of it. That is the instinct I have as we go forward to any future debate and discussion, whether or not it is on the media Bill.

The puzzling thing here is why this is such a continuing concern that it needs to be brought into to any opportunity we have to discuss these areas. The sense we had in the pre-legislative scrutiny committee, which discussed this to some extent but not in quite the same range as we have tonight, or even in Committee, was that the issues raised in this Bill were really about protecting freedom of expression. At that stage, the Bill still had the legal but harmful clauses in it so perhaps had had less exposure to those issues in the debate we had. I still think it is primarily about that. I still have real concerns about it, as have been raised by one or two people already in our discussion. I do not think the recognised news provider definition is a good one; I do not think the definition of a journalist is a good one. The pre-legislative scrutiny committee wanted an objective test of material based around public interest, but the Government would not accept that, so we are where we are. We must try to ensure that what works is what we have in the Bill in relation to the topics before it.

The primary purpose must be to ensure material that will inform and enhance our knowledge about democracy, current affairs and issues that need to be debated in the public space, so it is clearly right that that which is published by recognised journalists—quality journalists is another phrase that has been used—should be protected, perhaps more than other material, but at the fringes there are still doubts as to whether the Bill does that.

I had taken it that in the amendments I signed up to, government Amendments 158 and 161, the material we were talking about was from recognised news publishers, not material self-generated in social media. I am looking hard at the Minister hoping he will be able to come to my aid when he comes to respond. The issue here is about making sure that material that was not originally broadcast but is still provided by a recognised news publisher is protected from being taken down, and it would not have been if those amendments were not made. I hope that is the right interpretation. That was the basis on which I signed up for them; I do not know quite where it leaves me if that is wrong.

[Lord Allan of Hallam (LD)]

As I opened up that question, just to be clear, I was saying that it is exactly right that an individual user would not be covered, but I was trying to suggest that a social media-only news service that does not exist as a publication or a broadcaster outside social media, if it meets the Clause 50 test to be a recognised news publisher, should be given extra scope under the amendments.

[Lord Stevenson of Balmacara (Lab)]

I hope they do not, and I think the Minister has to answer that question quite directly. The issue here is about quality material that would otherwise be taken down being kept in place so that we can all as a society be informed by that. That does not mean it needs to be from particular sources that we know to be egregious or running material which is certainly not in the public interest. Again, I make the point that that would have been a better way of approaching this in the legislation, but I take the point made by the noble Lord, Lord Allan, who knows his stuff—I often think we ought to bottle him and carry it around so we can take a whiff of his expertise and knowledge every time we get stuck on a problem, but I am not quite sure how we manage that.

18:45

That is a long way in to what is a relatively straightforward point. At the end of the day, we need some system under which the material that we want in circulation in our democratic society, supporting the essential characteristics we have just talked about, is protected. I think the Bill moves that way. We will have to see whether it works in practice, but it gives us a basis for that. That is not the same thing as in any sense trying to address the questions raised about whether particular groups of newspapers perform or are categorised in a way that meets a particular set of regulations or laws, which may or may not still be in effect post-Leveson. As I said, that is for another day, and I am sure there are issues there that we can talk about.

At the end of this debate, which I think has been useful and will help in future, the narrow point is whether we believe that freedom of expression is enhanced by the proposals in front of us, and I very much think it is. I look forward to hearing the Government’s response.

[Lord Parkinson of Whitley Bay (Con)]

I reassure the noble Lord, Lord Stevenson, that he was right to sign the amendments; I am grateful that he did. I do not know whether it is possible to have a sense of déjà vu about debates that took place before one entered your Lordships’ House, but if so, I feel I have had it over the past hour. I am, however, glad to see the noble Lords, Lord Lipsey and Lord McNally, back in their places and that they have had the chance to express their views, which they were unable to do fully in Committee. I am grateful to noble Lords who have joined in that debate again.

At present, Amendment 159 would enable news publishers that are members of Impress, the sole UK regulator which has sought approval by the Press Recognition Panel, to benefit from the Bill’s protections for news publishers, without meeting the criteria set out in Clause 50(2). This would introduce a legislative advantage for Impress members over other news publishers. The amendment would, in effect, create strong incentives for publishers to join a specific press regulator. We do not consider that to be compatible with our commitment to a free press. To that end, as noble Lords know, we will repeal existing legislation that could have that effect, specifically Section 40 of the Crime and Courts Act 2013, through the media Bill, which was published recently.

Not only is creating an incentive for a publisher to join a specific regulator incompatible with protecting press freedom in the United Kingdom but it would undermine the aforementioned criteria. These have been drafted to be as robust as possible, with requirements including that organisations have publication of news as their principal purpose, that they are subject to a standards code and that their content is created by different persons. Membership of Impress, or indeed any other press regulator, does not and should not automatically ensure that these criteria are met.

Amendment 160 goes further by amending one of these criteria—specifically, the requirement for entities to be subject to a standards code. It would add the requirement that these standards codes be drawn up by a regulator, such as a body such as Impress. This amendment would create further incentives for news publishers to join a press regulator if they are to benefit from the exclusion for recognised news publishers. This is similarly not compatible with our commitment to press freedom.

We believe the criteria set out in Clause 50 of the Bill are already sufficiently strong, and we have taken significant care to ensure that only established news publishers are captured, while limiting the opportunity for bad actors to benefit.

The noble Lord, Lord Allan, asked about protections against that abuse by bad actors. The Bill includes protections for journalism and news publishers, given the importance of a free press in a democratic society. However, it also includes safeguards to prevent the abuse of these protections by bad actors. Platforms will still be able to remove recognised news publisher content that breaches their terms and conditions as long as they notify recognised news publishers and offer a right of appeal first. This means that content will remain online while the appeal is considered, unless it constitutes a relevant offence under the Bill or the platform would incur criminal or civil liability by hosting it. This marks a significant improvement on the status quo whereby social media companies can remove journalistic content with no accountability and little recourse for journalists to appeal.

We are clear that sanctioned news outlets such as RT must not benefit from these protections. We are amending the criteria for determining which entities qualify as recognised news publishers explicitly to exclude entities that are subject to sanctions. The criteria also exclude any entity that is a proscribed organisation under the Terrorism Act 2000 or whose purpose is to support an organisation that is proscribed under that Act. To require Ofcom or another party to assess standards would be to introduce press regulation by the back door.

The noble Baroness, Lady Fox of Buckley, asked about protecting clipped or edited content. Given evolving news consumption habits, recognised news publishers may clip or edit content from their published or broadcast versions to cater to different audiences and to be used on different platforms. We want to ensure recognised news publisher content is protected in all its forms as long as that content is still created or generated by the news publisher. For example, if a broadcaster shares a link to its shorter, online-only version of a long-form TV news programme or documentary on an in-scope platform, this should still benefit from the protections that the Bill affords. The amendment that we have brought forward ensures that this content and those scenarios remain protected but removes the risk of platforms being forced to carry news publisher content that has been edited by a third party potentially to cause harm. I hope that clarifies that.

I am grateful to the noble Lord, Lord Lipsey, for making it clear that he does not intend to press his amendments to a Division, so I look forward to that. I am also grateful for the support for the Government’s amendments in this group.

Amendment 158 agreed.

Clause 50: “Recognised news publisher”

Amendments 159 and 160 not moved.

Clause 51: “Search content”, “search results” etc

Amendment 161

Moved by

[Lord Parkinson of Whitley Bay]

161: Clause 51, page 52, line 14, leave out sub-paragraphs (ii) and (iii) and insert—
“(ii) is video or audio content that was originally published or broadcast by a recognised news publisher, and is not a clipped or edited form of such content (unless it is the recognised news publisher who has clipped or edited it), or(iii) is a link to an article or item within sub-paragraph (i) or to content within sub-paragraph (ii).”Member’s explanatory statement
This amendment ensures that, in particular, online content published by a recognised news publisher that has not first been broadcast is included in the list of content which does not count as search content for the purposes of the Bill.

Amendment 161 agreed.

Schedule 7: Priority offences

Amendment 162 not moved.

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

Amendments 163 to 170

Moved by

[Lord Parkinson of Whitley Bay]

163: Clause 54, page 54, line 44, leave out “applies” and insert “and sections (“Primary priority content that is harmful to children”) and (“Priority content that is harmful to children”) apply”
Member’s explanatory statement
This technical amendment ensures that 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 apply for the purposes of Part 3 of the Bill.

164: Clause 54, page 55, line 1, leave out subsections (2) and (3)
Member’s explanatory statement
This amendment omits powers to make regulations setting out which kinds of content count as primary priority content and priority content harmful to children. Those kinds of content are now set out on the face of the Bill (see the new Clauses proposed to be inserted after Clause 54 in my name).

165: Clause 54, page 55, line 8, after “children” insert “(see section (“Primary priority content that is harmful to children”))”
Member’s explanatory statement
This amendment inserts a signpost to the new Clause proposed to be inserted after Clause 54 in my name setting out which kinds of content count as primary priority content harmful to children.

166: Clause 54, page 55, line 9, after “children” insert “(see section (“Priority content that is harmful to children”))”
Member’s explanatory statement
This amendment inserts a signpost to the new Clause proposed to be inserted after Clause 54 in my name setting out which kinds of content count as priority content harmful to children.

167: Clause 54, page 55, leave out line 13
Member’s explanatory statement
This is a technical amendment omitting a line which is superfluous as a result of the next amendment in my name.

168: Clause 54, page 55, line 14, leave out paragraph (a)
Member’s explanatory statement
This amendment omits a provision about the relationship between illegal content and content harmful to children.

169: Clause 54, page 55, line 34, leave out “is” and insert “and sections (“Primary priority content that is harmful to children”) and (“Priority content that is harmful to children”) are”
Member’s explanatory statement
This amendment ensures that technical provision about content harmful to children extends to primary priority and priority content harmful to children in the new Clauses proposed to be inserted after Clause 54 in my name.

170: Clause 54, page 55, line 36, leave out subsection (9)
Member’s explanatory statement
This amendment omits a signpost to regulations about primary priority and priority content harmful to children, which is no longer needed as the new Clauses proposed to be inserted after Clause 54 in my name set out those kinds of content on the face of the Bill.

Amendments 163 to 170 agreed.

Amendment 171

Moved by

[Lord Parkinson of Whitley Bay]

171: After Clause 54, insert the following new Clause—
““Primary priority content that is harmful to children”
(1) “Primary priority content that is harmful to children” means content of any of the following kinds. (2) Pornographic content, other than content within subsection (6).(3) Content which encourages, promotes or provides instructions for suicide.(4) Content which encourages, promotes or provides instructions for an act of deliberate self-injury.(5) Content which encourages, promotes or provides instructions for an eating disorder or behaviours associated with an eating disorder.(6) Content is within this subsection if it—(a) consists only of text, or(b) consists only of text accompanied by—(i) identifying content which consists only of text,(ii) other identifying content which is not itself pornographic content,(iii) a GIF which is not itself pornographic content,(iv) an emoji or other symbol, or(v) any combination of content mentioned in sub-paragraphs (i) to (iv).(7) In this section and section (“Priority content that is harmful to children”) “injury” includes poisoning.”Member’s explanatory statement
This amendment describes which kinds of content count as primary priority content harmful to children for the purposes of Part 3 of the Bill.

Amendment 171 agreed.

Amendment 172

Moved by

[Lord Parkinson of Whitley Bay]

172: After Clause 54, insert the following new Clause—
““Priority content that is harmful to children”
(1) “Priority content that is harmful to children” means content of any of the following kinds.(2) Content which is abusive and which targets any of the following characteristics—(a) race,(b) religion,(c) sex,(d) sexual orientation,(e) disability, or(f) gender reassignment.(3) Content which incites hatred against people—(a) of a particular race, religion, sex or sexual orientation,(b) who have a disability, or(c) who have the characteristic of gender reassignment.(4) Content which encourages, promotes or provides instructions for an act of serious violence against a person.(5) Bullying content.(6) Content which—(a) depicts real or realistic serious violence against a person;(b) depicts the real or realistic serious injury of a person in graphic detail.(7) Content which—(a) depicts real or realistic serious violence against an animal;(b) depicts the real or realistic serious injury of an animal in graphic detail;(c) realistically depicts serious violence against a fictional creature or the serious injury of a fictional creature in graphic detail. (8) Content which encourages, promotes or provides instructions for a challenge or stunt highly likely to result in serious injury to the person who does it or to someone else.(9) Content which encourages a person to ingest, inject, inhale or in any other way self-administer—(a) a physically harmful substance;(b) a substance in such a quantity as to be physically harmful.(10) In subsections (2) and (3)—(a) “disability” means any physical or mental impairment;(b) “race” includes colour, nationality, and ethnic or national origins;(c) references to religion include references to a lack of religion.(11) For the purposes of subsection (3), a person 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, and the reference to gender reassignment in subsection (2) is to be construed accordingly.(12) For the purposes of subsection (5) content may, in particular, be “bullying content” if it is content targeted against a person which—(a) conveys a serious threat;(b) is humiliating or degrading;(c) forms part of a campaign of mistreatment.(13) In subsection (6) “person” is not limited to a real person.(14) In subsection (7) “animal” is not limited to a real animal.”Member’s explanatory statement
This amendment describes which kinds of content count as priority content harmful to children for the purposes of Part 3 of the Bill.

Amendments 173 (to Amendment 172) not moved.

Amendment 174 (to Amendment 172) not moved.

Amendment 172 agreed.

Clause 55: Regulations under section 54

Amendment 175

Moved by

[Lord Parkinson of Whitley Bay]

175: Clause 55, leave out Clause 55
Member’s explanatory statement
This amendment omits Clause 55 (regulations describing kinds of content harmful to children), as the kinds of content are now set out in the Bill - see the new Clauses proposed to be inserted after Clause 54 in my name.

Amendment 175 agreed.

Clause 56: Regulations under section 54: OFCOM’s review and report

Amendments 176 to 179

Moved by

[Lord Parkinson of Whitley Bay]

176: Clause 56, page 56, line 22, leave out subsection (1)
Member’s explanatory statement
This amendment and the next two amendments in my name omit references to regulations which are no longer needed, as primary priority content and priority content harmful to children are now set out in the new Clauses proposed to be inserted after Clause 54 in my name, not in regulations.

177: Clause 56, page 56, line 23, leave out “For so long as regulations are in force,”
Member’s explanatory statement
See the explanatory statement for the first amendment of Clause 56 in my name.

178: Clause 56, page 56, line 32, leave out “the regulations” and insert “sections (“Primary priority content that is harmful to children”) and (“Priority content that is harmful to children”)”
Member’s explanatory statement
See the explanatory statement for the first amendment of Clause 56 in my name.

179: Clause 56, page 56, line 36, leave out “the first statutory instrument containing regulations is made” and insert “this Act is passed”
Member’s explanatory statement
This amendment provides that OFCOM have 3 years from the date this Bill is passed to produce a report reviewing content harmful to children.

Amendments 176 to 179 agreed.

Amendment 180

Moved by

[Baroness Merron]

180: After Clause 56, insert the following new Clause—
“Review: offences relating to animal torture content
(1) Within the period of six months beginning with the day on which this Act is passed, the Secretary of State must carry out a review of relevant offences under the—(a) Communications Act 2003, and(b) Animal Welfare Act 2006,to determine whether there is an offence of sending a communication to encourage or assist an act of animal torture, or sharing content related to animal torture, on a regulated service.(2) If the review under subsection (1) determines that one or more offences contained within the Acts does extend to such communications or content, the Secretary of State must, as soon as practicable, make regulations to designate the offence or offences under Schedule 7 to this Act (see section 198(3)).”Member’s explanatory statement
Following answers to a recent oral question (27 June), this amendment would require the Secretary of State to undertake a review of existing criminal offences under the listed enactments to determine whether they apply to online posts containing or facilitating animal torture. If they do, the Secretary of State would be compelled to add these offences to the list of priority offences in Schedule 7.

[Baroness Merron (Lab)]

My Lords, I am pleased to speak to Amendment 180, and I thank the noble Lord, Lord Clement-Jones, for adding his name to it and tabling Amendment 180A, which follows it. I am grateful to the Badger Trust, Action for Primates, Wildlife and Countryside Link and the many others who have been in contact about the worryingly high volume of animal cruelty and animal torture content that we see online. I thank the Minister for his engagement on this issue. I very much acknowledge the contribution of noble Lords across the House and their interest in this topic, not only when it was raised in Committee but when my noble friend Lady Hayman of Ullock secured a topical Oral Question on it just last month.

The good news is that everybody agrees that there is a problem here—one that was recently brought into sharp focus by a BBC investigation entitled “The Monkey Haters”. The bad news is that we do not seem to be able to agree on how to address these issues, whether under this Bill or through other forms of action. Users of what will become regulated services once this Bill has passed are using these platforms to discuss, order and share photographs and videos of extreme acts of animal cruelty.

The Government’s position appears to be that, while such activities are abhorrent, they do not generate human harm and are therefore outside the scope of this legislation. In my view, that position is undermined by some of the Government’s own amendments to this legislation, which identify content relating to animal cruelty as falling under priority harms to children. Of course, this measure is a welcome addition. However, as a number of noble Lords highlighted during the recent Oral Question, there is a growing body of evidence that those who engage in acts of animal cruelty go on to harm other human beings.

This amendment contains a modest proposal to review whether the offences already cited from the Dispatch Box apply to online animal torture activity and, if so, to designate those offences under Schedule 7 to the Bill. We accept that the Government are already undertaking a review of criminal offences with a view to expanding the list in Schedule 7, but we have not been able to ascertain the timings attached to that review, whether its findings will be made public or whether Parliament will have a role beyond approving statutory instruments.

In our discussions with the Minister, we had a simple ask: that he commit to including animal welfare issues in the ongoing review and to working with Defra’s Secretary of State to publish a Written Ministerial Statement outlining how many prosecutions have been brought under animal welfare laws, the timetable that applies and how those provisions will be kept under review. We do not consider a Written Ministerial Statement from the Secretary of State summarising government policy to be an unreasonable ask—particularly as this Government are happy to claim that they have done more for animal welfare than any other—yet the Government have hitherto been unable to accept our request. I understand that, just a few minutes ago, an offer of a Written Ministerial Statement was made; noble Lords will understand that I have not seen it as I am in the Chamber, but I am advised that it is not from the Defra Secretary of State and does not refer to the number of prosecutions, timescales or any of the other matters that we requested to be included.

The volume of this content has grown exponentially in recent years. This means thousands of animals being harmed and an even higher number of human beings exposed to abhorrent and horrific material. This amendment may not be perfect, but it will, we hope, encourage the Government to take this issue more seriously than they have done to date. The Minister will be aware that, in view of the Government’s response thus far, I am minded to test the opinion of the House on this amendment. I beg to move.

19:00

[Lord Clement-Jones (LD)]

My Lords, I strongly support Amendment 180, tabled by the noble Baroness, Lady Merron. I will also explain why I put forward Amendment 180A. I pay tribute to the noble Baroness, Lady Hayman, who pursued this issue with considerable force through her Question in the House.

There is clearly an omission in the Bill. One of its primary aims is to protect children from harmful online content, and animal cruelty content causes harm to the animals involved and, critically, to the people who view it, especially children. In Committee, in the Question and today, we have referred to the polling commissioned by the RSPCA, which found that 23% of 10 to 18 year-olds had seen animal cruelty on social media sites. I am sure that the numbers have increased since that survey in 2018. A study published in 2017 found—if evidence were needed—that:

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


The noble Baroness made an extremely good case, and I do not think that I need to add to it. When the Bill went through the Commons, assurances were given by the former Minister, Damian Collins, who acknowledged that the inclusion of animal cruelty content in the Bill deserves further consideration as the Bill progresses through its parliamentary stages. We need to keep up that pressure, and we will be very much supporting the noble Baroness if she asks for the opinion of the House.

Turning to my Amendment 180A, like the noble Baroness, I pay tribute to the Social Media Animal Cruelty Coalition, which is a very large coalition of organisations. We face a global extinction crisis which the UK Government themselves have pledged to reverse. Algorithmic amplification tools and social media recommendation engines have driven an explosive growth in online wildlife trafficking. A National Geographic article from 2020 quoted US wildlife officials describing the dizzying scale of the wildlife trade on social media. The UK’s national wildlife crime units say that cyber-enabled wildlife crime has become their priority focus, since virtually all wildlife cases they now investigate have a cyber component to them, usually involving social media or e-commerce platforms. In a few clicks it is easy to find pages, groups and postings selling wildlife products made from endangered species, such as elephant ivory, rhino horn, pangolin scales and marine turtle shells, as well as big cats, reptiles, birds, primates and insects for the exotic pet trade. This vast, unregulated trade in live animals and their parts is not only illegal but exacerbates the risk of another animal/human spillover event such as the ones that caused Ebola, HIV and the Covid-19 pandemic.

In addition to accepting the animal welfare amendment tabled by the noble Baroness, which I hope they do, the Government should also add offences under the Control of Trade in Endangered Species Regulations 2018 to Schedule 7 to the Bill. This would definitely help limit the role of social media platforms in enabling wildlife trafficking, helping to uphold the UK’s commitments to tackling global wildlife crime.

[Baroness Kidron (CB)]

My Lords, I rise very briefly to support the noble Baroness, Lady Merron, and to make only one point. As someone who has the misfortune of seeing a great deal of upsetting material of all kinds, I have to admit that it sears an image on your mind. I have had the misfortune to see the interaction of animal and human cruelty in the same sequences, again and again. In making the point that there is a harm to humans in witnessing and normalising this kind of material, I offer my support to the noble Baroness.

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

My Lords, Amendments 180 and 180A seek to require the Secretary of State to conduct a review of existing legislation and how it relates to certain animal welfare offences and, contingent on this review, to make them priority offences under the regulatory framework.

I am grateful for this debate on the important issue of protecting against animal cruelty online, and all of us in this House share the view of the importance of so doing. As the House has discussed previously, this Government are committed to strong animal welfare standards and protections. In this spirit, this Government recognise the psychological harm that animal cruelty content can cause to children online. That is why we tabled an amendment that lists content that depicts real or realistic serious violence or injury against an animal, including by fictional creatures, as priority content that is harmful to children. This was debated on the first day of Report.

In addition, all services will need proactively to tackle illegal animal cruelty content where this amounts to an existing offence such as extreme pornography. User-to-user services will be required swiftly to remove other illegal content that targets an individual victim once made aware of its presence.

The noble Baroness asked about timing. We feel it is important to understand how harm to animals as already captured in the Bill will function before committing to the specific remedy proposed in the amendments.

As discussed in Committee, the Bill’s focus is rightly on ensuring that humans, in particular children, are protected online, which is why we have not listed animal offences in Schedule 7. As many have observed, this Bill cannot fix every problem associated with the internet. While we recognise the psychological harm that can be caused to adults by seeing this type of content, listing animal offences in Schedule 7 is likely to dilute providers’ resources away from protecting humans online, which is the Bill’s main purpose.

However, I understand the importance of taking action on animal mistreatment when committed online, and I am sympathetic to the intention of these amendments. As discussed with the noble Baroness, Defra is confident that the Animal Welfare Act 2006 and its devolved equivalents can successfully bring prosecutions for the commission and action of animal torture when done online in the UK. These Acts do not cover acts of cruelty that take place outside the UK. I know from the discussion we have had in this House that there are real concerns that the Animal Welfare Act 2006 cannot tackle cross-border content, so I wish to make a further commitment today.

The Government have already committed to consider further how the criminal law can best protect individuals from harmful communications, alongside other communications offences, as part of changes made in the other place. To that end, we commit to include the harm caused by animal mistreatment communications as part of this assessment. This will then provide a basis for the Secretary of State to consider whether this offence should be added to Schedule 7 to the OSB via the powers in Clause 198. This work will commence shortly, and I am confident that this, in combination with animal cruelty content listed as priority harms to children, will safeguard users from this type of content online.

For the reasons set out, I hope the noble Baroness and the noble Lord will consider not pressing their amendments.

[Lord Clement-Jones (LD)]

The Minister has not dealt with Amendment 180A at all.

[Viscount Camrose (Con)]

I will be happy to write to the noble Lord.

[Lord Clement-Jones (LD)]

That really is not good enough, if I may say so. Does the Minister not have any brief of any kind on Amendment 180A?

[Viscount Camrose (Con)]

I am sorry if the noble Lord feels that I have not dealt with it at all.

[Lord Clement-Jones (LD)]

The words “animal trafficking” have not passed his lips.

[Viscount Camrose (Con)]

I am sorry; I will have to write to the noble Lord.

[Baroness Merron (Lab)]

My Lords, I am sure the letter will be anticipated.

I am grateful to the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones, for their support for Amendment 180. I appreciate the consideration that the Minister has given to the issue. I am in no doubt of his sympathy for the very important matters at stake here. However, he will not be surprised to hear that I am disappointed with the response, not least because, in the Minister’s proposal, a report will go to the Secretary of State and it will then be up to the Secretary of State whether anything happens, which really is not what we seek. As I mentioned at the outset, I would like to test the opinion of the House.

19:12

Division 1

Ayes: 211

---

Labour: 112
Liberal Democrat: 62
Crossbench: 29
Independent: 5
Green Party: 2
Bishops: 1

Noes: 171

---

Conservative: 159
Independent: 7
Crossbench: 4
Labour: 1

19:22

Amendment 180A not moved.

Clause 57: User identity verification

Amendments 181 to 183 not moved.

Amendment 184 not moved.

Clause 60: Regulations about reports to the NCA

Amendment 185

Moved by

[Lord Parkinson of Whitley Bay]

185: Clause 60, page 59, line 15, at end insert—
“(2A) The regulations may also—(a) require providers to retain, for a specified period, data of a specified description associated with a report, and(b) impose restrictions or requirements in relation to the retention of such data (including how the data is to be secured or stored or who may access the data).(2B) The power to require the retention of data associated with a report includes power to require the retention of—(a) content generated, uploaded or shared by any user mentioned in the report (or metadata relating to such content), and(b) user data relating to any such person (or metadata relating to such data).“User data” here has the meaning given by section 206.” Member’s explanatory statement
This amendment provides that regulations under this Clause may require a provider to retain data associated with a report sent to the NCA and impose restrictions or requirements in relation to the retention of the data.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, child sexual exploitation or abuse is an abhorrent crime. Reporting allows victims to be identified and offenders apprehended. It is vital that in-scope companies retain the data included in reports made to the National Crime Agency. This will enable effective prosecutions and ensure that children can be protected.

The amendments in my name in this group will enable the Secretary of State to include in the regulations about the reporting of child sexual exploitation or abuse content a requirement for providers to retain data. This requirement will be triggered only by a provider making a report of suspected child sexual exploitation or abuse to the National Crime Agency. The provider will need to retain the data included in the report, along with any associated account data. This is vital to enabling prosecutions and to ensuring that children can be protected, because data in reports cannot be used as evidence. Law enforcement agencies request this data only when they have determined that the content is in fact illegal and that it is necessary to progress investigations.

Details such as the types of data and the period of time for which providers must retain this data will be specified in regulations. This will ensure that the requirement is future-proofed against new types of data and will prevent companies retaining types of data that may have become obsolete. The amendments will also enable regulations to include any necessary safeguards in relation to data protection. However, providers will be expected to store, process and share this personal data within the UK GDPR framework.

Regulations about child sexual exploitation or abuse reporting will undergo a robust consultation with relevant parties and will be subject to parliamentary scrutiny. This process will ensure that the regulations about retaining data will be well-informed, effective and fit for purpose. These amendments bring the child sexual exploitation and abuse reporting requirements into line with international standards. I beg to move.

[Lord Allan of Hallam (LD)]

My Lords, these seem very sensible amendments. I am curious about why they have arrived only at this stage, given this was a known problem and that the Bill has been drafted over a long period. I am genuinely curious as to why this issue has been raised only now.

On the substance of the amendments, it seems entirely sensible that, given that we are now going to have 20,000 to 25,000 regulated entities in scope, some of which will never have encountered child sexual exploitation or abuse material or understood that they have a legal duty in relation to it, it will be helpful for them to have a clear set of regulations that tell them how to treat their material.

Child sexual exploitation or abuse material is toxic in both a moral and a legal sense. It needs to be treated almost literally as toxic material inside a company, and sometimes that is not well understood. People feel that they can forward material to someone else, not understanding that in doing so they will break the law. I have had experiences where well-meaning people acting in a vigilante capacity sent material to me, and at that point you have to report them to police. There are no ifs or buts. They have committed an offence in doing so. As somebody who works inside a company, your computer has to be quarantined and taken off and cleaned, just as it would be for any other toxic material, because we framed the law, quite correctly, to say that we do not want to offer people the defence of saying “I was forwarding this material because I’m a good guy”. Forwarding the material is a strict liability offence, so to have regulations that explain, particularly to organisations that have never dealt with this material, exactly how they have to deal with it in order to be legally compliant will be extremely helpful.

One thing I want to flag is that there are going to be some really fundamental cross-border issues that have to be addressed. In many instances of child sexual exploitation or abuse material, the material has been shared between people in different jurisdictions. The provider may not be in a UK jurisdiction, and we have got to avoid any conflicts of laws. I am sure the Government are thinking about this, but in drafting those regulations, what we cannot do, for example, is order a provider to retain data in a way that would be illegal in the jurisdiction from which it originates or in which it has its headquarters. The same would apply vice versa. We would not expect a foreign Government to order a UK company to act in a way that was against UK law in dealing with child sexual exploitation or abuse material. This all has to be worked out. I hope the Government are conscious of that.

I think the public interest is best served if the United Kingdom, the United States and the European Union, in particular, adopt common standards around this. I do not think there is anything between us in terms of how we would want to approach child sexual exploitation or abuse material, so the extent to which we end up having common legal standards will be extraordinarily helpful.

As a general matter, to have regulations that help companies with their compliance is going to be very helpful. I am curious as to how we have got there with the amendment only at this very late stage.

[Baroness Kidron (CB)]

My Lords, I rise to make a slightly lesser point, but I also welcome these amendments. I want to ask the Minister where the consultation piece of this will lie and to check that all the people who have been in this space for many years will be consulted.

[Lord Clement-Jones (LD)]

My Lords, as ever, my noble friend Lord Allan and the noble Baroness, Lady Kidron, have made helpful, practical and operational points that I hope the Minister will be able to answer. In fact, the first half of my noble friend’s speech was really a speech that the Minister himself could have given in welcoming the amendment, which we do on these Benches.

19:30

[Lord Knight of Weymouth (Lab)]

My Lords, from this side we certainly welcome these government amendments. I felt it was probably churlish to ask why it had taken until this late stage to comply with international standards, but that point was made very well by the noble Lord, Lord Allan of Hallam, and I look forward to the Minister’s response.

[Lord Parkinson of Whitley Bay (Con)]

I am grateful to noble Lords for their support for these amendments and for their commitment, as expected, to ensuring that we have the strongest protections in the Bill for children.

The noble Lord, Lord Allan of Hallam, asked: why only now? It became apparent during the regular engagement that, as he would expect, the Government have with the National Crime Agency on issues such as this that this would be necessary, so we are happy to bring these amendments forward. They are vital amendments to enable law enforcement partners to prosecute offenders and keep children safe.

Reports received by the National Crime Agency are for intelligence only and so cannot be relied on as evidence. As a result, in some cases law enforcement agencies may be required to request that companies provide data in an evidential format. The submitted report will contain a limited amount of information from which law enforcement agencies will have to decide what action to take. Reporting companies may hold wider data that relate to the individuals featured in the report, which could allow law enforcement agencies to understand the full circumstances of the event or attribute identities to the users of the accounts.

The data retention period will provide law enforcement agencies with the necessary time to decide whether it is appropriate to request data in order to continue their investigations. I hope that explains the context of why we are doing this now and why these amendments are important ones to add to the Bill. I am very grateful for noble Lords’ support for them.

Amendment 185 agreed.

Amendment 186

Moved by

[Lord Parkinson of Whitley Bay]

186: Clause 60, page 59, line 16, leave out “the regulations” and insert “regulations under this section”
Member’s explanatory statement
This amendment is consequential on the other amendment to Clause 60 in my name.

Amendment 186 agreed.

19:33

Consideration on Report adjourned.