Online Safety Bill

Debate between Baroness Finlay of Llandaff and Baroness Fox of Buckley

Committee stage
Thursday 22nd June 2023 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I will address my remarks to government Amendment 268AZA and its consequential amendments. I rather hope that we will get some reassurance from the Minister on these amendments, about which I wrote to him just before the debate. I hope that that was helpful; it was meant to be constructive. I also had a helpful discussion with the noble Lord, Lord Allan.

As has already been said, the real question relates to the threshold and the point at which this measure will clock in. I am glad that the Government have recognised the importance of the dangers of encouraging or assisting serious self-harm. I am also grateful for the way in which they have defined it in the amendment, relating to it grievous bodily harm and severe injury. The amendment says that this also

“includes successive acts of self-harm which cumulatively reach that threshold”.

That is important; it means, rather than just one act, a series of them.

However, I have a question about subsection (10), which states that:

“A provider of an internet service by means of which a communication is sent, transmitted or published is not to be regarded as a person who sends, transmits or publishes it”.


We know from bereaved parents that algorithms have been set up which relay this ghastly, horrible and inciteful material that encourages and instructs. That is completely different from those organisations that are trying to provide support.

I am grateful to Samaritans for all its help with my Private Member’s Bill, and for the briefing that it provided in relation to this amendment. As it points out, over 5,500 people in England and Wales took their own lives in 2021 and self-harm is

“a strong risk factor for future suicide”.

Interestingly, two-thirds of those taking part in a Samaritans research project said that

“online forums and advice were helpful to them”.

It is important that there is clarity around providing support and not encouraging and goading people into activity which makes their self-harming worse and drags them down to eventually ending their own lives. Three-quarters of people who took part in that Samaritans research said that they had

“harmed themselves more severely after viewing self-harm content online”.

It is difficult to know exactly where this offence sits and whether it is sufficiently narrowly drawn.

I am grateful to the Minister for arranging for me to meet the Bill team to discuss this amendment. When I asked how it was going to work, I was somewhat concerned because, as far as I understand it, the mechanism is based on the Suicide Act, as amended, which talks about the offence of encouraging or assisting suicide. The problem as I see it is that, as far as I am aware, there has not been a string of prosecutions following the suicide of many young people. We have met their families and they have been absolutely clear about how their dead child or sibling—whether a child or a young adult—was goaded, pushed and prompted. I recently had experience outside of a similar situation, which fortunately did not result in a death.

The noble Lord, Lord Allan, has already addressed some of the issues around this, and I would not want the amendment not to be there because we must address this problem. However, if we are to have an offence here, with a threshold that the Government have tried to define, we must understand why, if assisting and encouraging suicide on the internet is already a criminal offence, nothing has happened and there have been no prosecutions.

Why is subsection (10) in there? It seems to negate the whole problem of forwarding on through dangerous algorithms content which is harmful. We know that a lot of the people who are mounting this are not in the UK, and therefore will be difficult to catch. It is the onward forwarding through algorithms that increases the volume of messaging to the vulnerable person and drives them further into the downward spiral that they find themselves in—which is perhaps why they originally went to the internet.

I look forward to hearing the Government’s response, and to hearing how this will work.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, this group relates to communications offences. I will speak in support of Amendment 265, tabled by the noble Lord, Lord Moylan, and in support of his opposition to Clause 160 standing part of the Bill. I also have concerns about Amendments 267AA and 267AB, in the name of the noble Baroness, Lady Kennedy. Having heard her explanation, perhaps she can come back and give clarification regarding some of my concerns.

On Clause 160 and the false communications offence, unlike the noble Lord, Lord Moylan, I want to focus on psychological harm and the challenge this poses for freedom of expression. I know we have debated it before but, in the context of the criminal law, it matters in a different way. It is worth us dwelling on at least some aspects of this.

The offence refers to what is described as causing

“non-trivial psychological or physical harm to a likely audience”.

As I understand it—maybe I want some clarity here—it is not necessary for the person sending the message to have intended to cause harm, yet there is a maximum sentence of 51 weeks in prison, a fine, or both. We need to have the context of a huge cultural shift when we consider the nature of the harm we are talking about.

J.S. Mill’s harm principle has now been expanded, as previously discussed, to include traumatic harm caused by words. Speakers are regularly no-platformed for ideas that we are told cause psychological harm, at universities and more broadly as part of the whole cancel culture discussion. Over the last decade, harm and safety have come no longer to refer just to physical safety but have been conflated. Historically, we understood the distinction between physical threats and violence as distinct from speech, however aggressive or incendiary that speech was; we did not say that speech was the same as or interchangeable with bullets or knives or violence—and now we do. I want us to at least pause here.

What counts as psychological harm is not a settled question. The worry is that we have an inability to ascertain objectively what psychological harm has occurred. This will inevitably lead to endless interpretation controversies and/or subjective claims-making, at least some of which could be in bad faith. There is no median with respect to how humans view or experience controversial content. There are wildly divergent sensibilities about what is psychologically harmful. The social media lawyer Graham Smith made a really good point when he said that speech is not a physical risk,

“a tripping hazard … a projecting nail … that will foreseeably cause injury … Speech is nuanced, subjectively perceived and capable of being reacted to in as many different ways as there are people.”

That is true.

We have seen an example of the potential disputes over what creates psychological harm in a case in the public realm over the past week. The former Culture Secretary, Nadine Dorries, who indeed oversaw much of this Bill in the other place, had her bullying claims against the SNP’s John Nicolson MP overturned by the standards watchdog. Her complaints had previously been upheld by the standards commissioner. John Nicolson tweeted, liked and retweet offensive and disparaging material about Ms Dorries 168 times over 24 hours—which, as they say, is a bit OTT. He “liked” tweets describing Ms Dorries as grotesque, a “vacuous goon” and much worse. It was no doubt very unpleasant for her and certainly a personalised pile-on—the kind of thing the noble Baroness, Lady Kennedy, just talked about—and Ms Dorries would say it was psychologically harmful. But her complaint was overturned by new evidence that led to the bullying claim being turned down. What was this evidence? Ms Dorries herself was a frequent and aggressive tweeter. So, somebody is a recipient of something they say causes them psychological harm, and it has now been said that it does not matter because they are the kind of person who causes psychological harm to other people. My concern about turning this into a criminal offence is that the courts will be full of those kinds of arguments, which I do not think we want.

Online Safety Bill

Debate between Baroness Finlay of Llandaff and Baroness Fox of Buckley

Committee stage
Tuesday 2nd May 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

And it has been highly contentious whether the right to vote gives them independence. For example, you would still be accused of child exploitation if you did anything to a person under 18 in Scotland or Wales. In fact, if you were to tap someone and it was seen as slapping in Scotland and they were 17, you would be in trouble. Anyway, it should not be in this Bill. That is my point.

[Baroness Finlay of Llandaff (CB)]

My Lords, perhaps I may intervene briefly, because Scotland and Wales have already been mentioned. My perception of the Bill is that we are trying to build something fit for the future, and therefore we need some broad underlying principles. I remind the Committee that the Well-being of Future Generations Act (Wales) Act set a tone, and that tone has run through all aspects of society even more extensively than people imagined in protecting the next generation. As I have read them, these amendments set a tone to which I find it difficult to understand why anyone would object, given that that is a core principle, as I understood it, behind building in future-proofing that will protect children, among others.

Domestic Abuse Bill

Debate between Baroness Finlay of Llandaff and Baroness Fox of Buckley

Monday 15th March 2021 Lords Chamber

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I thank the noble Baroness, Lady Bennett, for introducing this important amendment to the Bill, just as I did 16 years ago when the Children Act was making its way through this House. The aim has not changed: to allow children the same legal protection from violence that adults enjoy today—no more, no less.

While the aim has not changed, the times and society certainly have. In the 1990s, parents interviewed in confidence as part of a research study commissioned by the Department of Health admitted to very high levels of corporal punishment, with the admission of violence doubling when both parents were interviewed. Three-quarters of mothers said that they had already smacked their baby before its first birthday, which is before language has developed. Over 91% of children had been hit, with the youngest and most vulnerable hit most often. Almost half the children were hit weekly or more often. One-fifth had been hit with an implement, and 35% had been punished severely, which is defined as with the intention or potential to actually cause harm to the child. That included actions that were repeated, prolonged or involved the use of implements. Today, those children are parents.

In 2021, we find ourselves a year after national lockdowns began. The pressure on parents has been enormous, and we know that if a parent hits a child, it is usually in response to pent-up feelings. When parents have been forced to be indoors 24 hours a day, trying to work and look after their children at the same time, many parents have struggled to hide their frustration at one time or another.

The circumstances of the pandemic have only emphasised the need for many of the amendments that have been accepted by the Government already. The Government have done a great deal to ensure the safeguarding of children, but the state of the law on this undermines it.

A recent paper in the Archives of Disease in Childhood showed that in one hospital in 2020 in just one month, the number of cases of serious child injury rose by almost 1,500% compared with the same period in the previous three years, pointing to a silent pandemic of abuse in 2020. Ten children aged 17 days to 13 months had head trauma. This is just one of several such reports, confirmed by the 80% increase in NSPCC referrals.

Research clearly shows that corporal punishment has all kind of negative effects on mental health, parent-child relationships, increased anti-social behaviour and child aggression. Almost all abuse takes place in the context of so-called punishment or discipline. Sweden’s experience of banning smacking has shown that it benefits children and society as a whole, and 60 countries have now followed suit.

I will address the concerns of the noble Baroness, Lady Hoey. Loving, caring parents need to use physical actions at times, especially with young children: to protect them, to grab them and lift them, to restrain them and so on. The amendment would not interfere with this part of day-to-day parenting, or with the ability to punish in non-violent ways. But smacking can escalate to beating the living daylights out of a child. That is what the amendment seeks to address.

Most parents report that they regret having hit, but it escalates so easily into more serious violence. Children who are pinched, slapped, shaken and spanked are seven times more likely to experience severe violence such as punching, kicking or hitting with an object. They are being taught that the way to cope with feelings of frustration in oneself is to hit someone who is vulnerable. Aggression breeds aggression. Children must learn de-escalation and parents must set the example.

In 2022, a law banning the smacking of children in Wales will come into force, thanks to Julie Morgan’s leadership on the issue. Scotland passed such legislation in October 2019, and several people have seen at first hand how counting to 10 rather than a frequent quick slap has resulted in better child behaviour. Now England should follow. The amendment will not stem the tide of domestic abuse, but it will give the next generation the same protection in law from serious abuse that we aim to afford to adults. That is why I support it.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, this amendment attempts to repeal the defence of reasonable punishment as part of the Children Act. In my mind, that would effectively criminalise parents for reasonably chastising their own children.

In doing so, the amendment raises a number of ethical pitfalls that the state faces whenever it legislates to police private family life in a free society. Historically, we have recognised that state interventions into family life should be rare, proportionate and handled with due respect for parental autonomy. In recent years, we have sadly seen an unfortunate trend towards top-down overreach, and this amendment is a good illustration. In the whole of the Domestic Abuse Bill, with its focus on helping those abused in domestic settings or contexts, we still need to remember that this is not a green light to tear up all the norms of privacy and liberty when it comes to family life.

Essentially, the amendment would remove the legal defence of reasonable chastisement from parents who might occasionally smack their own children. Effectively, this declares that the Government know better than loving parents, who could find themselves vulnerable to charges of common assault just for being parents

Of course, there will be people here who might not approve of slapping. We have already heard from some. But that is their business. That is no justification for overruling other parents’ decisions, or their values. Should we assume that the state always knows best when it comes to child rearing? I am sure that those raised in care homes might have a different view.

The amendment is also entirely unnecessary, because it is already illegal to aim a smack at a child’s head or to hit a child with an object, as is any smack that leads to more than the temporary reddening of skin. In other words, unreasonable punishment is already against the law, and rightly so. The vast majority of society view violence aimed at children as abhorrent. They think that beating children should be not just illegal but morally condemned, as we all do. So what would this amendment outlawing even a reasonable use of smacking achieve?

The amendment states that

“battery of a child cannot be justified on the ground that it constituted reasonable punishment.”

Of course battery cannot be justified on the basis of reasonable punishment—but think about the use of that word, “battery”. It conjures up horrors, does it not? Why was that word used in this amendment? I noticed that, in campaigns to ban smacking in Wales and Scotland, one of the most egregious tactics of anti-smacking lobbyists was this irresponsible conflation of smacking with gross acts of violence. This rhetorical trick is shameless and shamefully distorts intention and context.

It is important to state for the record that violence is physical force intended to injure. In contrast, if a mum or dad smacks a five year-old child for being naughty, they have no intention of causing injury. Rather, they, like all of us, want to teach their child right from wrong, for example by chastising them for running in front of a car. This is driven by parental love, not a desire to injure. Conflating slapping with violence paints ordinary mums and dads as potential violent thugs or child abusers. It is just so insulting. It also shows a certain distrust of ordinary parents; tonight, we heard people describing smacking and beating the living daylights out of children in the same sentence.

For the noble Baroness, Lady Bennett, who argued that we should treat the smacking of a child as we would treat a bodily attack on a grown adult, again, let us think about context. Do we really believe that children should not be treated differently from adults? In the real world, parents do many things to their children that they would not dream of doing to another adult. When you order a child to bed, you do not order adults to bed, do you? You check whether your child’s bottom is clean; you would not do that to an adult. We treat children—especially our own—differently from adults. If you confiscate your teen’s Xbox or phone, we do not consider that theft because of the context. It is common-sense disciplinary action, as smacking can be. Smacking is not assault; it is not even comparable. So I hope that noble Lords agree that parents are better placed to judge when and how to discipline their offspring than any number of NGOs—even if they come waving state-approved parenting manuals full of best practice checklists and “Count to 10”.

Finally, the danger with overreach is that it expands who and what is criminalised. As I have warned several times during the passage of this Bill, and as the noble Baroness, Lady Hoey, pointed out, this could open the floodgates to complaints of minor incidents and overwhelm the police and social services, which are already overstretched. When I argued this in Wales in relation to the debate there, I was assured that the legislation was not about criminalising parents, but about sending a message. However, politicians cannot change the criminal law and expect the police and courts not to enforce it. It is not a communications strategy. Also, the Scottish Government encouraged the public to phone 999 if they witnessed a parent smacking their child; they also distributed leaflets aimed at children, urging them to report on their parents. Can you imagine how divisive, demoralising and damaging that is for family life? How does it protect children if the law undermines parental authority, or if families are ripped apart by damaging police investigations because a child was smacked? It would discredit the whole concept of domestic abuse, as well as child abuse, if we treated smacking as assault under this Bill. We ourselves would launch an assault on family coherence.

Finally, for many weeks now, we, in following this Domestic Abuse Bill, have focused on the dark side of family life. Earlier this evening, we heard harrowing tales of stalking, abuse, women at risk and so on. However, we must make sure that this does not poison our world view. We should avoid starting to see abuse everywhere. Behind closed doors is not a dystopian hellhole. The majority of families are joyous places of solidarity and socialising children. Sometimes they are messy. Sometimes they are argumentative. Sometimes there is a bit of shouting. Sometimes there is the odd smack. However, they are largely full of love. This amendment suggests otherwise and should be rejected.

Domestic Abuse Bill

Debate between Baroness Finlay of Llandaff and Baroness Fox of Buckley

Report stage
Wednesday 10th March 2021 Lords Chamber

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I should declare that I chair the Commission on Alcohol Harm. I added my name to Amendment 31 in the name of the noble Lord, Lord Hunt of Kings Heath, and the noble Baronesses, Lady Goudie and Lady Hollins. It is very welcome that the Bill will, for the first time, give local authorities a formal role in the provision of domestic abuse support. The voluntary sector has done a heroic job in protecting survivors, victims and their families, but this vital task should not be left to the voluntary sector alone.

The words of the Minister were welcome, reflecting her deep and sincere commitment to tackling domestic abuse. The government amendments recognise the need to ensure that regulation will meet need and are certainly to be supported. If I heard correctly, some of the additional finance will apply only to England. How will parallel community services be financially supported in Wales? Without that additional funding also coming to Wales, there will be a serious risk that women fleeing abuse will also have to flee Wales to get the support they need.

We must not ignore those outside refuges, some of whom are turned away due to their alcohol and substance-use needs, which makes them ineligible for support from their local authority. However, they still need support. The amendment of the noble Lord, Lord Hunt of Kings Heath, is needed in addition to the Government’s amendments. It would ensure that the necessary support is available and would support the whole scoping exercise without any discrimination. I really urge the Government to support it.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the new statutory duty on local authorities to provide safe accommodation-based services for victims of domestic abuse and their children is widely welcomed, but I am still sympathetic to the ongoing fears that this might mean local authorities simply redistributing funding away from community services in order to meet that statutory need. I welcome these thoughtful amendments and the discussion that focuses on protecting specialist community service provision. While I am still not sure whether this issue should be dealt with through legislation, it is very important that it has come up. I am minded to consider seriously Amendments 30 and 31 in particular.

However, there is one category of specialist services that I am worried the Bill has inadvertently not focused on: women’s domestic abuse services, whether community or accommodation-based, which are under threat. Ironically, council funding does not help. The Bill’s increase in funding and the new legal duty on councils will not resolve this issue. There seems to be some muddled thinking about how councils should deliver specialist services more broadly. I would appreciate it if the Minister would take that into account in this set of amendments or in guidance notes.

I declare a minor interest, in that I am a long-standing columnist for the MJ – for the uninitiated, the Municipal Journal. It has been eye-opening watching councils in recent years trying to negotiate equalities legislation in the context of new political trends such as gender-neutral policies. The Equality Act 2010 clearly protects single-sex exemptions that allow women to have legitimate access to women-only services and spaces: gyms, hospitals, changing rooms and, of course, crucial services such as Rape Crisis, women’s refuges and women’s advice services. The newly launched organisation Sex Matters notes that rules and explanations are now confused and controversies around gender identity mean that organisations can be reluctant to communicate their women-only services clearly, and, when they do, councils can use this against them. This needs to be clarified as we go forward; otherwise, all the good will will be undermined.

One example of the unintended consequence of fudging championing women’s refuges is how councils are interpreting equalities impact assessments. In the drive for more inclusive, non-gendered service provision that caters for the needs of all protected characteristics, women’s refuges are in danger of losing funding for not being inclusive enough.