BBC Funding

Baroness Merron Excerpts

Tuesday 12th December 2023 Lords Chamber

[Baroness Merron (Lab)]

My Lords, we on these Benches are clear that the BBC must continue as a universal, publicly owned and publicly funded public service broadcaster, with funding that is both sufficient and sustainable. After flirting with the privatisation of Channel 4, the Government’s somewhat chop and change approach to BBC funding is creating significant uncertainty for our valuable public service broadcasters and the wider creative ecosystem. Have the Government undertaken an assessment of the likely impact of the additional pressure being placed on BBC budgets? Is this likely to lead to more journalist job cuts, disruption to commissions and supply chains, or harm to the organisation’s soft power across the world? If an assessment has been undertaken, will it be published?

The BBC has already scaled back some of its public service output in response to the licence fee freeze. This has seen, for example, local radio services streamlined. From my time as an MP in the other place, I recall how local communities had the greatest trust in local TV and radio stations as a source of news and information. Does the Minister agree with the continuing importance of local provision of news and information at a time when fake news proliferates, particularly online, and when many local newspapers are scaling back their operations? To turn to the national sphere, most recently, the format of “Newsnight” has changed, with its important investigative journalism scaled back and moved elsewhere.

The Government’s desire to focus on the cost of living is understood, but it is their actions which have stretched household budgets to breaking point. Does the Minister accept that this change in how the licence fee is calculated will have a negligible impact on working people’s finances, through a saving of just £4 a year, while having a far bigger impact on the BBC’s ability to fulfil its public service duty and role?

We also understand the desire of the Secretary of State to launch the future funding review. She is, after all, not the first person to have had that idea, but many lack confidence that the process is about getting the right result for the BBC. What steps will be taken to shore up confidence in the review among stakeholders, staff and the public?

We have learned so much from the past few years about what it means to be a resilient society, not least because of the pandemic, when the BBC really came into its own, not just as a broadcaster but as an educator, a trusted source of information and a connector. The Government’s resilience framework promises a direction of travel which incorporates prevention, preparedness, response and recovery, no matter what the disaster. Can the Minister indicate whether there has been consideration of the impact of the BBC’s funding on all these aspects of resilience?

Our great broadcasting institutions, their employees and the wider creative sectors that they do so much to sustain deserve far better than they are getting currently. Labour, on the other hand, will work with, rather than against, the BBC and other public service broadcasters to grow our creative industries and ensure that all parts of the UK benefit from their output. That is the essence of public service broadcasting.

[Baroness Bonham-Carter of Yarnbury (LD)]

My Lords, in 2022, the Government made a firm commitment that, after two years of freezing the licence fee, they would allow it to rise for the following four years according to the rate of inflation. The BBC kept its side of the bargain, despite having to make heavy cuts. The Statement repeated here today makes it clear that the Government have not. The Government’s excuse—that their below-inflation settlement is about helping with the cost of living—will not wash. The difference between an inflation- linked settlement and the actual one is 45p per month, yet this will deprive the BBC of £400 million over the next four years, causing enormous damage to an institution already reeling under successive cuts by this Government. There are more direct ways to help those who are trying to deal with the burden of inflation and increased energy bills.

What does this mean? It means less investment in the nation’s creative industries, fewer jobs created nationwide, more job cuts at the BBC and, almost certainly, fewer journalists dedicated to checking facts and reporting impartially, which is so important in the world of the internet. The BBC feeds into the Government’s levelling-up agenda, making programmes across the country while boosting local economies and utilising local skills—except that cuts to BBC local radio, already in train, mean that the spotlight on the local level is increasingly dim and will grow dimmer, thanks to today’s Statement.

As mentioned by the noble Baroness, Lady Merron, another casualty is investigative journalism. I used to work on “Newsnight”; we criss-crossed the UK and the world seeking out stories and telling them in depth, not just reacting. Now, it is another current affairs programme shunted off to an existence solely in the studio. As my former colleague Michael Crick—he may not be the favourite person of some of your Lordships, but he is one of mine—noted:

“If I were a dodgy politician or a crooked businessman or a lazy civil servant, I would rest a bit easier in my bed”.


I mentioned the world. International reporting is already shrinking, and believe me it will shrink further. Just look at how the terrible events in the Middle East have led to Ukraine virtually disappearing from the airwaves. Major events have been occurring in Afghanistan, Sudan, Myanmar and Latin America: we hear nothing. Bringing the world to domestic audiences is so important. As a consequence, we are more equipped to understand, connect and empathise with what is going on beyond UK borders. Ignorance is not a good idea. It is fed by the echo chamber of the internet. Does the Minister not agree?

Of course, the BBC is not just about journalism, important as that is. It is the backbone of our world-beating creative industries and the single largest investor in original UK content operating in the UK. Innovation is often overlooked. It was the BBC that came up with the idea of television. My noble friend—if I may call him that—Lord Birt was behind BBC Online and the BBC has continued to lead, with the likes of the iPlayer and BBC Sounds. It led on rolling out the digital switchover and created two consumer platforms to help make online TV available to all UK audiences. Every £1 of BBC R&D spend alone contributes to £9 in value beyond. Can the Minister explain why this is not something to support?

Then there is soft power. Through the World Service and the programmes the BBC exports, it is central to promoting the UK around the world and is the envy of the world. The Government’s integrated review, published this year, boasted correctly that the BBC is

“the most trusted broadcaster worldwide”.

Considering all these positives, have the Government assessed the impact of these unexpected cuts on the BBC? Can the Minister say where he sees them coming from and what he would be happy to do without?

Finally, on the announced review of the BBC’s funding model, it is of course appropriate that the funding model for the BBC should be investigated, but does the Minister think it is right for the Government to do so without any public consultation and in the space of a few months? Who will be on the expert panel and how will they be chosen? These Benches have long proposed that the funding process, as well as the appointment of the BBC chair, should be taken out of government control and handed to a genuinely independent body. As David Attenborough said:

“The basic principle of public service broadcasting is profoundly important. If we lose that we really lose a very valuable thing”.

Online Safety Bill

Baroness Merron Excerpts

Report stage
Wednesday 19th July 2023 Lords Chamber

[Baroness Benjamin (LD)]

My Lords, I want to say “Hallelujah”. With this Bill, we have reached a landmark moment after the disappointments and obstacles that we have had over the last six years. It has been a marathon but we are now in the final straight with the finishing line in sight, after the extraordinary efforts by noble Lords on all sides of the House. I thank the Secretary of State for her commitment to this ground-breaking Bill, and the Minister and his officials for the effort they have put into it. The Minister is one of my “Play School” babies, who has done his utmost to make a difference in changing the online world. That makes me very happy.

We know that the eyes of the world are watching us because legislators around the world are looking for ways to extend the rule of law into the online world, which has become the Wild West of the 21st century, so it is critical that in our haste to reach the finishing post we do not neglect the question of enforcement. That is why I have put my name to Amendment 268C in the name of the noble Lord, Lord Weir: without ensuring that Ofcom is given effective powers for this task of unprecedented scale, the Bill we are passing may yet become a paper tiger.

The impact assessment for the Bill estimated that 25,000 websites would be in scope. Only last week, in an encouraging report by the National Audit Office on Ofcom’s readiness, we learned that the regulator’s own research has increased that estimate to 100,000, and the figure could be significantly higher. The report went on to point out that the great majority of those websites will be based overseas and will not have been regulated by Ofcom before.

The noble Lord, Lord Bethell, raised his concerns on the final day of Committee, seeking to amend the Bill to make it clear that Ofcom could take a schedule of a thousand sites to court and get them all blocked in one go. I was reassured when the Minister repeated the undertaking given by his counterpart in Committee in the other place that the Civil Procedure Rules already allow such multiparty claims. Will the Minister clarify once again that such enforcement at scale is possible and would not expose Ofcom to judicial review? That would give me peace of mind.

The question that remains for many is whether Ofcom will act promptly enough when children are at risk. I am being cautious because my experience in this area with regulators has led me not to assume that simply because this Parliament passes a law, it will be implemented. We all know the sorry tale of the Part 3 of the Digital Economy Act, when Ministers took it upon themselves not to decide when it should come into force, but to ask whether it should at all. When they announced that that should be never, the High Court took a dim view and allowed judicial review to proceed. Interestingly, the repeal of Part 3 and the clauses that replaced it may not have featured in this Bill were it not for that case—I always say that everything always happens for a reason. The amendment is a reminder to Ofcom that Parliament expects it to act, and to do so from the day when the law comes into force, not after a year’s grace period, six months or more of monitoring or a similar period of supervision before it contemplates any form of enforcement.

Many of the sites we are dealing with will not comply because this is the law; they will do so only when the business case makes compliance cheaper than the consequences of non-compliance, so this amendment is a gentle but necessary provision. If for any reason Ofcom does not think that exposing a significant number of children in this country to suicide, health harm, eating disorder or pornographic content—which is a universal plague—merits action, it will need to write a letter to the Secretary of State explaining why.

We have come too far to risk the Bill not being implemented in the most robust way, so I hope my noble friends will join me in supporting this belt-and-braces amendment. I look forward to the Minister’s response.

[Baroness Merron (Lab)]

My Lords, we welcome the government amendments in this group to bring child sexual exploitation and abuse failures into the scope of the senior manager liability and enforcement regime but consider that they do not go far enough. On the government amendments, I have a question for the Minister about whether, through Clause 122, it would be possible to require a company that was subject to action to do some media literacy as part of its harm reduction; in other words, would it be possible for Ofcom to use its media literacy powers as part of the enforcement process? I offer that as a helpful suggestion.

We share the concerns expressed previously by the noble Lord, Lord Bethell, about the scope of the senior manager liability regime, which does not cover all the child safety duties in the Bill. We consider that Amendment 268, in the name of my noble friend Lord Stevenson, would provide greater flexibility, giving the possibility of expanding the list of duties covered in the future. I have a couple of brief questions to add to my first question. Will the Minister comment on how the operation of the senior manager liability regime will be kept under review? This has, of course, been something of a contentious issue in the other place, so could the Minister perhaps tell your Lordships’ House how confident he is that the current position is supported there? I look forward to hearing from the Minister.

[Lord Parkinson of Whitley Bay (Con)]

I did not quite finish writing down the noble Baroness’s questions. I will do my best to answer them, but I may need to follow up in writing because she asked a number at the end, which is perfectly reasonable. On her question about whether confirmation decision steps could include media literacy, yes, that is a good idea; they could.

Amendment 268, tabled by the noble Lord, Lord Stevenson of Balmacara, seeks to enable the Secretary of State, through regulation, to add to the list of duties which are linked to the confirmation decision offence. We are very concerned at the prospect of allowing an unconstrained expansion of the confirmation decision offence. In particular, as I have already set out, we would be concerned about expansion of those related to search services. There is also concern about unconstrained additions of any other duties related to user-to-user services as well.

We have chosen specific duties which will tackle effectively key issues related to child safety online and tackling child abuse while ensuring that the confirmation decision offence remains targeted. Non-compliance with a requirement imposed by a confirmation decision in relation to such duties warrants the prospect of criminal enforcement on top of Ofcom’s extensive civil enforcement powers. Making excessive changes to the offence risks shifting the regime towards a more punitive and disproportionate enforcement model, which would represent a significant change to the framework as a whole. Furthermore, expansion of the confirmation decision offence could lead to services taking an excessively cautious approach to content moderation to avoid the prospect of criminal liability. We are also concerned that such excessive expansion could significantly increase the burden on Ofcom.

I am grateful to the noble Lord, Lord Weir of Ballyholme, and the noble Baroness, Lady Benjamin, for the way they set out their Amendment 268C. We are concerned about this proposal because it is important that Ofcom can respond to issues on a case-by-case basis: it may not always be appropriate or proportionate to use a specific enforcement power in response to a suspected breach. Interim service restriction orders are some of the strongest enforcement powers in the Bill and will have a significant impact on the service in question. Their use may be disproportionate in cases where there is only a minor breach, or where a service is taking steps to deal with a breach following a provisional notice of contravention.

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[Lord Clement-Jones (LD)]

My Lords, I can be very brief. My noble friend Lady Benjamin and the noble Baronesses, Lady Harding, Lady Morgan and Lady Fraser, have all very eloquently described why these amendments in this group are needed.

It is ironic that we are still having this debate right at the end of Report. It has been a running theme throughout the passage of the Bill, both in Committee and on Report, and of course it ran right through our Joint Committee work. It is the whole question of safety by design, harm from functionalities and, as the noble Baroness, Lady Morgan, said, understanding the operation of the algorithm. And there is still the question: does the Bill adequately cover what we are trying to achieve?

As the noble Baroness, Lady Harding, said, Clause 1 now does set out the requirement for safety by design. So, in the spirit of amity, I suggested to the Minister that he might run a check on the Bill during his free time over the next few weeks to make sure that it really does cover it. But, in a sense, there is a serious point here. Before Third Reading there is a real opportunity to run a slide rule over the Bill to see whether the present wording really is fit for purpose. So many of us around this House who have lived and breathed this Bill do not believe that it yet is. The exhortation by the ethereal presences of the noble Baronesses, Lady Kidron and Lady Harding, to keep pressing to make sure that the Bill is future-proofed and contains the right ingredients is absolutely right.

I very much hope that once again the Minister will go through the hoops and explain whether this Bill really captures functionality and design and not just content, and whether it adequately covers the points set out in the purpose of the Bill which is now there.

[Baroness Merron (Lab)]

My Lords, as we have heard, the noble Baroness, Lady Harding, made a very clear case in support of these amendments, tabled in the name of the noble Baroness, Lady Kidron, and supported by noble Lords from across the House. The noble Baroness, Lady Morgan, gave wise counsel to the Minister, as did the noble Lord, Lord Clement-Jones, that it is worth stepping back and seeing where we are in order to ensure that the Bill is in the right place. I urge the Minister to find the time and the energy that I know he has—he certainly has the energy and I am sure he will match it with the time—to speak to noble Lords over the coming Recess to agree a way to incorporate systems and functionality into the Bill, for all the reasons we have heard.

On Monday, my noble friend Lord Knight spoke of the need for a review about loot boxes and video games. When we checked Hansard, we saw the Minister had promised that such a review would be offered in the coming months. In an unusual turn of events, the Minister exceeded the timescale. We did not have to hear the words “shortly”, “in the summer” or “spring” or anything like that, because it was announced the very next day that the department would keep legislative options under review.

I make that point simply to thank the Minister for the immediate response to my noble friend Lord Knight. But, if we are to have such a review, does this not point very much to the fact that functionality and systems should be included in the Bill? The Minister has a very nice hook to hang this on and I hope that he will do so.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this is not just a content Bill. The Government have always been clear that the way in which a service is designed and operated, including its features and functionalities, can have a significant impact on the risk of harm to a user. That is why the Bill already explicitly requires providers to ensure their services are safe by design and to address the risks that arise from features and functionalities.

The Government have recognised the concerns which noble Lords have voiced throughout our scrutiny of the Bill, and those which predated the scrutiny of it. We have tabled a number of amendments to make it even more explicit that these elements are covered by the Bill. We have tabled the new introductory Clause 1, which makes it clear that duties on providers are aimed at ensuring that services are safe by design. It also highlights that obligations on services extend to the design and operation of the service. These obligations ensure that the consideration of risks associated with the business model of a service is a fundamental aspect of the Bill.

My noble friend Baroness Harding of Winscombe worried that we had made the Bill worse by adding this. The new clause was a collaborative one, which we have inserted while the Bill has been before your Lordships’ House. Let me reassure her and other noble Lords as we conclude Report that we have not made it worse by so doing. The Bill will require services to take a safety by design approach to the design and operation of their services. We have always been clear that this will be crucial to compliance with the legislation. The new introductory Clause 1 makes this explicit as an overarching objective of the Bill. The introductory clause does not introduce any new concepts; it is an accurate summary of the key provisions and objectives of the Bill and, to that end, the framework and introductory statement are entirely compatible.

We also tabled amendments—which we debated last Monday—to Clause 209. These make it clear that functionalities contribute to the risk of harm to users, and that combinations of functionality may cumulatively drive up the level of risk. Amendment 281BA would amend the meaning of “functionality” within the Bill, so that it includes any system or process which affects users. This presents a number of concerns. First, such a broad interpretation would mean that any service in scope of the Bill would need to consider the risk of any feature or functionality, including ones that are positive for users’ online experience. That could include, for example, processes designed for optimising the interface depending on the user’s device and language settings. The amendment would increase the burden on service providers under the existing illegal content and child safety duties and would dilute their focus on genuinely risky functionality and design.

Second, by duplicating the reference to systems, processes and algorithms elsewhere in the Bill, it implies that the existing references in the Bill to the design of a service or to algorithms must be intended to capture matters not covered by the proposed new definition of “functionality”. This would suggest that references to systems and processes, and algorithms, mentioned elsewhere in the Bill, cover only systems, processes or algorithms which do not have an impact on users. That risks undermining the effectiveness of the existing duties and the protections for users, including children.

Amendment 268A introduces a further interpretation of features and functionality in the general interpretation clause. This duplicates the overarching interpretation of functionality in Clause 208 and, in so doing, introduces legal and regulatory uncertainty, which in turn risks weakening the existing duties. I hope that sets out for my noble friend Lady Harding and others our legal concerns here.

Amendment 281FA seeks to add to the interpretation of harm in Clause 209 by clarifying the scenarios in which harm may arise, specifically from services, systems and processes. This has a number of concerning effects. First, it states that harm can arise solely from a system and process, but a design choice does not in isolation harm a user. For example, the decision to use algorithms, or even the algorithm itself, is not what causes harm to a user—it is the fact that harmful content may be pushed to a user, or content pushed in such a manner that is harmful, for example repeatedly and in volume. That is already addressed comprehensively in the Bill, including in the child safety risk assessment duties.

Secondly, noble Lords should be aware that the drafting of the amendment has the effect of saying that harm can arise from proposed new paragraphs (a) (b) and (c)—

Online Safety Bill

Baroness Merron Excerpts

Report stage
Wednesday 12th July 2023 Lords Chamber

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.

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[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.

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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.

--- Later in debate ---

[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.

Creative Industries (Communications and Digital Committee Report)

Baroness Merron Excerpts

Friday 7th July 2023 Lords Chamber

[Baroness Merron (Lab)]

My Lords, I too am grateful to the noble Baroness, Lady Stowell, for her much-applauded work as chair of the Lords Communications and Digital Committee. I also thank the members of the committee, many of whom are here today. I am sure it is a mark of the success of the committee that so many are here to contribute as they have. This is indeed a first-rate report, which I hope will be a springboard for more action.

I welcome the focus on the changes needed for skills and talent because of new technologies and innovation, which was well illustrated in the contribution from the noble Lord, Lord Berkeley. It is particularly timely that we look at this report, not just because it follows the Government’s publication of the Creative Industries Sector Vision a few weeks ago but because we are in a post-pandemic world. I hope the committee will take some pleasure—I am sure it will do so modestly—in the fact that the Government have finally published a vision. That is very welcome, but, as ever, I am sorry that it took until 2023 to see it.

The report we are discussing noted a number of key points, including that the creative industries are a major contributor to the UK economy, generating more value than the life sciences, aerospace and automotive industries combined. That is a weighty contribution. The committee concluded that the Government’s current policy towards the sector is

“complacent and risks jeopardising the sector’s commercial potential”.

I am sure that the Minister heard that very clearly.

I will reference skills shortages. The committee claimed that technical skills shortages in the sector were widespread. It argued that the education system, as we have heard in this debate a number of times, is equipping people very poorly for the reality of work in creative occupations, and in particular for the freelance market, which, as we know, is very common in the sector. The committee also criticised the Government’s rhetoric about low-value courses at university level. It said that some graduates of these courses

“take time to generate higher salaries. That does not mean their studies … are less worthwhile.”

I hope that the Government take account of this point.

My noble friend Lady Rebuck made a very strong point, as have other noble Lords, that creative skills are not stand-alone: they sit neatly with technology, science and other skills. This was borne out by my noble friend Lord Griffiths, who described a new school facility, and a new approach, which meshed all of these skills together. My noble friend Lady Rebuck quoted the figure that 88% of the creative sector find it hard to recruit the technical workers that they need with the right skills. I have heard that many times over, including on a visit to the National Theatre. It is right to emphasise that this is something we hear wherever we go throughout the creative sector—I say that phrase with some trepidation because of the comments from my noble friend Lord Lipsey, who has begged for a new form of wording, which I think we will all have to work on.

Where are we to find a pipeline of the right talent? Where is the joined-up work across government, particularly between the Minister’s own department and the Department for Education? Where is the measure of the impact of the work that goes on, such that it is, across the whole of government? As the noble Baroness, Lady Bull, rightly said, the committee was critical on this point, referring to policy incoherence at a time when the world is moving on at pace, with or without the United Kingdom.

I also echo the observation by the noble Baroness, Lady Bull, that the remit of this report did not include consideration of Brexit, inequalities, arts funding or poor terms and conditions. I say that not as criticism of the report—far from it—but to emphasise the point. The noble Earl, Lord Clancarty, the noble Lord, Lord Vaizey, and others also emphasised that these matters need very real consideration. I hope the committee will perhaps be able to turn to these points, as I feel it has a valuable contribution to make.

I acknowledge the role of the sector. Creativity is a huge part of our national identity. However, like everything, as this committee report states, it needs nurturing. The UK is home to many innovative tech start-ups, and our music and other creative output such as films, games and so on are exported across the world. Creativity, in all its forms, is one of the UK’s most successful and best-loved exports, and tourists flock here to visit museums and galleries. As we know, the creative sector is worth billions to the economy, as well as being an essential part of human expression.

This has been highlighted by an open letter that was recently published. It was signed by more than 100 prominent actors, artists and authors, including Olivia Colman, Grayson Perry and Philip Pullman, just to mention a few, who say that,

“Creativity drives innovation, progress and personal fulfilment”.


They also say that the arts currently risk being

“a pursuit that only the most privileged can follow”.

They praise the commitment by Keir Starmer to reprioritise creativity and other human skills, particularly in a world of artificial intelligence, in order to instil more creativity in the school curriculum.

Young people, in particular, have responded very positively to this because they know that they need education and training to prepare them for the work that the creative sector offers. Indeed, it offers so many opportunities, and I am grateful to the noble Lord, Lord Vaizey, who was generous in his acknowledgement of those commitments and spoke about welcoming the fact that Keir Starmer has announced that students will study a creative subject or sport to the age of 16. This will include, as a number of noble Lords, including my noble friend Lord Young, have said, that they need to be confident and eloquent in speaking. I agree that this is very much a life skill that will carry students through, not just in the creative sector, but in every sector that they may choose to work in.

The committee’s report talks about addressing blinds spot in education and is critical of what it calls the Government’s “Lazy rhetoric”, which I mentioned earlier, about the supposedly low value of arts degrees. This is a point that has been picked up by the All-Party Parliamentary University Group which has also expressed concern about the cutting of creative courses and has flagged that measuring the outcomes of studies just 15 months after graduation means that there is no scope for tracking the career trajectory of creative arts students. The Society of London Theatre and UK Theatre have noticed the massive decline in arts GCSE entries—there was a 40% drop between 2010 and 2022—and they have called on the Government to reverse this. They also raise issues around the application of the apprenticeship levy, which is something that clearly needs looking at. It would be interesting to hear any comments the Minister has on that.

The committee’s report also talks about the relative lack of government support for the creative industries since the pandemic. The Music Venue Trust speaks about the lack of business energy relief for venues and says that this is contributing to 2023 potentially being the worst year for venue closures. It also raised concerns about the lack of a talent pipeline, noting that while big venues and festivals are going from strength to strength, future headline acts need somewhere to start their careers, which is something my noble friend Lord Watson spoke of. It would be interesting to hear from the Minister what he feels about the proposal for a levy on tickets sold for large events in order that the proceeds could subsidise smaller events. It is an interesting idea and certainly has similarities with the restoration and other levies that are put on London theatre tickets.

This debate has also underlined why we must support live music in all its forms. It is struggling to survive for all the post-Covid and funding reasons which your Lordships’ House speaks about and considers on so many occasions. Supporting live music in our local communities, regionally and nationally, is vital, as is supporting it in our Parliament. We have the Statutory Instruments, a quartet which has performed in the Commons and the Lords. I welcome the cross-party initiative to bring live music to Parliament. With this in mind, I am certainly looking forward to the Yehudi Menuhin School event in November which my noble friend Lady Wheeler has initiated in conjunction with the noble Earl, Lord Clancarty, and the noble Lords, Lord Clement-Jones and Lord Blackwell. This has been a rich and, as ever, creative debate. I hope very much that this report will support the improvements that your Lordships’ House has long and repeatedly called for.

Online Safety Bill

Baroness Merron Excerpts

Report stage
Thursday 6th July 2023 Lords Chamber

Moved by

[Baroness Merron]

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

[Baroness Merron (Lab)]

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

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

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

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

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

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

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

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

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

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

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

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

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

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

[Baroness Merron (Lab)]

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

Amendment 2 (to Amendment 1) withdrawn.

--- Later in debate ---

[Lord Clement-Jones (LD)]

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

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

[Baroness Merron (Lab)]

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

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

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

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

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

[Lord Parkinson of Whitley Bay (Con)]

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

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

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

Online Safety Bill

Baroness Merron Excerpts

Committee stage
Thursday 22nd June 2023 Lords Chamber

Moved by

[Baroness Merron]

242: Before Clause 148, insert the following new Clause—
“General procedure
(1) An appeal to the Upper Tribunal under section 148 or 149 must be commenced by sending a notice of appeal to the court.(2) The notice of appeal must set out the grounds of appeal in sufficient detail to indicate— (a) under which provision of this Act the appeal is to be brought;(b) to what extent (if any) the appellant contends that the decision against, or with respect to which, the appeal is brought was based on an error of fact or was wrong in law; and(c) to what extent (if any) the appellant is appealing against OFCOM’s exercise of its discretion in making the disputed decision.(3) The Upper Tribunal may give an appellant leave to amend the grounds of appeal identified in the notice of appeal.”Member’s explanatory statement
This amendment introduces additional procedural steps to be followed when the Upper Tribunal considers an appeal under Clauses 148 and 149.

[Baroness Merron (Lab)]

My Lords, I am pleased to speak to Amendments 242, 243 and 245, which have been tabled in the name of my noble friend Lord Stevenson. The intention of this group is to probe what we consider to be an interesting if somewhat niche area, and I hope the Minister will take it in that spirit.

To give the Committee some idea of the background to this group, when Ofcom was originally set up and was mainly dealing with mobile and fixed telephony cartels, it had a somewhat torrid time, if I can describe it that way. Just about every decision it took was challenged in the courts on the so-called merits of the respective cases and on its powers, as the companies taking it to court had many resources they could call upon. That very much held up Ofcom’s progress and, of course, incurred major costs.

Prior to the Digital Economy Act, the worst of the experiences of this period were over, but Ofcom managed to persuade the Government that challenges made by companies in scope of Ofcom would in future be based on judicial review, rather than on merits. In other words, the test was whether Ofcom had acted within its powers and had not acted irrationally. An area of concern to a number of companies is who can challenge the regulator, even if it is acting within its powers, if it gets it wrong in the eyes of said companies. Perhaps the Minister will reflect on that.

This group of amendments is intended to provide better protections for service providers, their users and the wider public, alongside processes that should mean fewer delays and greater efficiency. The Competition Act 1998 permits appeals of Ofcom’s decisions to be made additionally on account of an error of fact, an error of law or an error of the exercise of its discretion.

--- Later in debate ---

[Viscount Camrose (Con)]

I thank all those who have spoken, and I very much appreciate the spirit in which the amendments were tabled. They propose changes to the standard of appeal, the standing to appeal and the appeals process itself. The Government are concerned that enabling a review of the full merits of cases, as proposed by Amendments 243 and 245, could prove burdensome for the courts and the regulator, since a full-merits approach, as we have been hearing, has been used by regulated services in other regulatory regimes to delay intervention, undermining the effectiveness of the enforcement process. With deep-pocketed services in scope, allowing for a full-merits review could incentivise speculative appeals, both undermining the integrity of the system and slowing the regulatory process.

While the Government are fully committed to making sure that the regulator is properly held to account, we feel that there is not a compelling case for replacing the decisions of an expert and well-resourced regulator with those of a tribunal. Ofcom will be better placed to undertake the complex analysis, including technical analysis, that informs regulatory decisions.

Amendment 245 would also limit standing and leave to appeal only to providers and those determined eligible entities to make super-complaints under Clause 150. This would significantly narrow the eligibility requirements for appeals. For appeals against Ofcom notices we assess that the broader, well-established standard in civil law of sufficient interest is more appropriate. Super-complaints fulfil a very different function from appeals. Unlike appeals, which will allow regulated services to challenge decisions of the regulator, super-complaints will allow organisations to advocate for users, including vulnerable groups and children, to ensure that systemic issues affecting UK users are brought to Ofcom’s attention. Given the entirely distinct purposes of these functions, it would be inappropriate to impose the eligibility requirements for super-complaints on the appeals system.

I am also concerned about the further proposal in Amendment 245 to allow the tribunal to replace Ofcom’s decision with its own. Currently, the Upper Tribunal is able to dismiss an appeal or quash Ofcom’s decision. Quashed decisions must be remitted to Ofcom for reconsideration, and the tribunal may give directions that it considers appropriate. Amendment 245 proposes instead allowing the Upper Tribunal to

“impose or revoke, or vary the amount of, a penalty … give such directions or take such other steps as OFCOM could itself have given or taken, or … make any other decision which OFCOM could itself have made”.

The concern is that this risks undermining Ofcom’s independence and discretion in applying its powers and issuing sanctions, and in challenging the regulator’s credibility and authority. It may also further incentivise well-resourced providers to appeal opportunistically, with a view to securing a more favourable outcome at a tribunal.

On that basis, I fear that the amendments tabled by the noble Lord would compromise the fundamental features of the current appeals provisions, without any significant benefits, and risk introducing a range of inadvertent consequences. We are confident that the Upper Tribunal’s judicial review process, currently set out in the Bill, provides a proportionate, effective means of appeal that avoids unnecessary expense and delays, while ensuring that the regulator’s decisions can be thoroughly scrutinised. It is for these reasons that I hope the noble Baroness will withdraw the amendment.

[Baroness Merron (Lab)]

My Lords, I am grateful to the Minister. I will take that as a no—but a very well-considered no, for which I thank him. I say to the noble Lord, Lord Clement-Jones, that we certainly would not wish to make him feel uncomfortable at any time. I am grateful to him and the noble Baroness, Lady Kidron, for their contributions. As I said at the outset, this amendment was intended to probe the issue, which I feel we have done. I certainly would not want to open a can of worms—online, judicial or otherwise. Nor would I wish, as the Minister suggested, to undermine the work, efficiency and effectiveness of Ofcom. I am glad to have had the opportunity to present these amendments. I am grateful for the consideration of the Committee and the Minister, and with that I beg leave to withdraw.

Amendment 242 withdrawn.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

My Lords, as the noble Lord, Lord Clement-Jones, said in introducing this group some time ago, it is very diverse. I shall comment on two aspects of the amendments in this group. I entirely associate myself with the remarks of the noble Lord, Lord Allan, who really nailed the problems with Amendment 266, and I very much support the amendments in the name of the noble Baroness, Lady Kennedy of The Shaws; I would have signed them if I had caught up with them.

The noble Baroness, Lady Fox, talked about causing alarm and distress. I can draw on my own experience here, thinking about when someone randomly starts to post you pictures of crossbows. I think about what used to happen when I was a journalist in Bangkok, when various people used to get hand grenades posted into their letterbox. That was not actively dangerous—the pin was not pulled; it was still held down—but it was clearly a threat, and the same thing happens on social media.

This is something of which I have long experience. In 2005, when I was the founder of the feminist blog Carnival of Feminists, I saw the kinds of messages that the noble Baronesses have referred to, which in the days before social media used to be posted as comments on people’s blogs. You can still find the blog out there—it ran from 2005 to 2009—but many of its links to other blogs will be dead because they were often run by young women, often young women of colour, who were driven to pull down their blogs and sometimes were driven off the internet entirely by threatening, fearsome messages of the type that the noble Baroness, Lady Kennedy, referred to. We can argue about the drafting here—I will not have any opinion on that in detail—but something that addresses that issue is really important.

Secondly, we have not yet heard the Government’s introductions to Amendment 268AZA, but the noble Lord, Lord Clement-Jones, provided us with the information that it is an amendment to create the offence of encouraging or assisting self-harm. I express support for the general tenor of that, but I want to make one specific point: so far as I can see, the amendment does not have any defence or carve-out for harm-reduction messages, which may be necessary.

To set the context here, figures from the Royal College of Psychiatrists say that about one in 10 young people self-harm at some stage in their youth, and the RCP says those figures are probably an underestimate because they are based on figures where medical professionals actually see them so the number is probably significantly higher than that. An article in the Journal of Psychiatric and Mental Health Nursing from 2018 entitled “Self-cutting and harm reduction” is focused on in-patient settings, but the arguments in it are important in setting the general tone. It says that

“harm reduction in all its guises starts from the premise that the end goal”—

that is, to end self-harm entirely—

“is neither necessarily nor inevitably abstinence”,

which cannot be the solution for some people. Rather,

“the extinction of some particular form of behaviour may not be realistic for, or even desired by, the individual”.

So you may find messages that say, “If you are going to cut yourself, use a clean blade. If you do cut yourself, look after the wound afterwards”, but there is a risk that those kinds of well-intentioned, well-meaning and indeed expert messages could be caught by the amendment. I googled self-harm and harm reduction, and the websites that came up included Self Injury Support, which provides expert advice; a number of mental health trusts and healthcare trusts; and, indeed, the royal college’s own website.

The noble Lord, Lord Allan of Hallam, was trying to address this issue with Amendment 268AZC, which would allow the DPP to authorise prosecutions, but it seems to me that a better approach would be to have in the government amendment a statement saying, “We acknowledge that there will be cases where people talk about self-harm in ways that seek to minimise harm rather than simply stopping it, and they are not meant to be caught by this amendment”.

[Baroness Merron (Lab)]

My Lords, as the noble Baroness, Lady Bennett, said, it seems a very long time since we heard the introduction from the noble Lord, Lord Clement-Jones, but it was useful in setting this helpful and well-informed debate on its way. I am sure the whole Committee is keen to hear the Minister introducing the government amendments, even at this very late stage in the debate.

I would like to make reference to a few points. I was completely captivated by the noble Lord, Lord Moylan, who invoked the 10 commandments. I say to him that one can go to no higher order, which I am sure will support the amendments that he and his colleagues have put forward.

I will refer first to the amendments tabled by my noble friend Lady Kennedy. At a minimum, they are interesting because they try to broaden the scope of the current offences. I believe they also try to anticipate the extent of the impact of the government amendments, which in my view would be improved by my noble friend’s amendments. As my noble friend said, so many of the threats that are experienced online by, and directed towards, women and girls are indirect. They are about encouraging others: saying “Somebody should do something terrible to you” is extremely common. I feel that here is an opportunity to address that in the Bill, and if we do not, we will have missed a major aspect. I hope that the Minister will take account of that and be positive. We can all be relaxed about whether the amendments need to be made, but the intent is there.

That part of the debate made a strong case to build on the debate we had on an earlier day in Committee about violence against women and girls, which was led by the noble Baroness, Lady Morgan, and supported by noble Baronesses and noble Lords from all sides of the House. We called upon the Minister then to ensure that the Bill explicitly includes the necessary amendments to make it refer to violence against women and girls because, for all the reasons that my noble friend Lady Kennedy has explained, it is considerably greater for them than for others. Without wishing to dismiss the fact that everybody receives levels of abuse, we have to be realistic here: I believe that my noble friend’s amendments are extremely helpful there.

This is a bit in anticipation of what the Minister will say—I am sure he will forgive me if he already has the answers. The noble Lords, Lord Clement-Jones and Lord Allan, referred particularly to the coalition of some 130 individuals and organisations which have expressed their concerns. I want to highlight those concerns as well, because they speak to some important points. The groups in that coalition include the largest self-harm charity, Self Injury Support, along with numerous smaller self-harm support organisations and, of course, the mental health charity Mind. Their voice is therefore considerable.

To emphasise what has already been outlined, the concern with the current amendments is that they are somewhat broad and equivalent to an offence of glamorising self-harm, which was rejected by the Law Commission in its consultation on the offence. That followed concern from the Magistrates’ Association and the Association of Police and Crime Commissioners that the offence would be ambiguous in application and complex to prosecute. It also risks criminalising people in distress, something that none of us want to see.

In addition, the broadness of the offence risks criminalising peer support and harm reduction resources, by defining them as capable of “encouraging or assisting” when they are in fact intended to help people who self-harm. This was raised by the noble Baroness, Lady Finlay, today and in respect of her Private Member’s Bill, which we debated very recently in this Chamber, and I am sure that it would not be the Minister’s intention.

I would like to emphasise another point that has been made. The offence may also criminalise content posted by people who are in distress and sharing their own experiences of self-harm—the noble Baroness, Lady Finlay, referred to this—by, for example, posting pictures of wounds. We do not want to subject vulnerable people to litigation, so let us not have an offence which ends up harming the very people it aims to protect. I shall be listening closely to the Minister.

Online Safety Bill

Baroness Merron Excerpts

Committee stage
Thursday 22nd June 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, this has been an interesting debate, though one of two halves, if not three.

The noble Lord, Lord Bethell, introduced his amendment in a very measured way. My noble friend Lady Benjamin really regrets that she cannot be here, but she strongly supports it. I will quote her without taking her speech entirely on board, as we have been admonished for that previously. She would have said that

“credit card companies have claimed ignorance using the excuse of how could they be expected to know they are supporting porn if they were not responsible for maintaining porn websites … This is simply not acceptable”.

Noble Lords must forgive me—I could not possibly have delivered that in the way that my noble friend would have done. However, I very much took on board what the noble Lord said about how this makes breaches transparent to the credit card companies. It is a right to be informed, not an enforcement power. The noble Lord described it as a simple and proportionate measure, which I think is fair. I would very much like to hear from the Minister why, given the importance of credit card companies in the provision of pornographic content, this is not acceptable to the Government.

The second part of this group is all about effective enforcement, which the noble Lord, Lord Bethell, spoke to as well. This is quite technical; it is really important that these issues have been raised, in particular by the noble Lord. The question is whether Ofcom has the appropriate enforcement powers. I was very taken by the phrase

“pre-empt a possible legal challenge”,

as it is quite helpful to get your retaliation in first. Underlying all this is that we need to know what advice the Minister and Ofcom are getting about the enforcement powers and so on.

I am slightly more sceptical about the amendments from the noble Lord, Lord Curry. I am all in favour of the need for speed in enforcement, particularly having argued for it in competition cases, where getting ex-ante powers is always a good idea—the faster one can move, the better. However, restricting the discretion of Ofcom in those circumstances seems to me a bit over the top. Many of us have expressed our confidence in Ofcom as we have gone through the Bill. We may come back to this in future; none of us thinks the Bill will necessarily be the perfect instrument, and it may prove that we do not have a sufficiently muscular regulator. I entirely respect the noble Lord’s track record and experience in regulation, but Ofcom has so far given us confidence that it will be a muscular regulator.

I turn now to the third part of the group. I was interested in the context in which my noble friend placed enforcement; it is really important and supported by the noble Baroness, Lady Morgan. It is interesting what questions have been asked about the full extent of the Government’s ambitions in this respect: are VPNs going to be subject to these kinds of notices? I would hope so; if VPNs are really the gateway to some of the unacceptable harms that we are trying to prevent, we should know about that. We should be very cognisant of the kind of possible culture being adopted by some of the social media and regulated services, and we should tailor our response accordingly. I will be interested to hear what the Government have to say on that.

[Baroness Merron (Lab)]

My Lords, I am grateful to the noble Lords, Lord Bethell, Lord Curry and Lord Allan for introducing their amendments, to the noble Baroness, Lady Morgan, for her direct question, and to the noble Baroness, Lady Kidron, for her equally direct question. I am sure they will be of great assistance to the Minister when he replies. I will highlight the words of the noble Lord, Lord Allan, who said “We are looking for services to succeed”. I think that is right, but what is success? It includes compliance and enforcement, and that is what this group refers to.

The amendments introduced by the noble Lord, Lord Bethell, seek to strengthen what is already in the Bill about Ofcom’s Chapter 6 powers of enforcement, otherwise known as business disruption powers, and they focus on what happens in the event of a breach; they seek to be more prescriptive than what we already have. I am sure the Minister will remember that the same issue came up in the Digital Economy Bill, around the suggestion that the Government should take specific powers. There, the Government argued they had assurances from credit card companies that, if and when action was required, they would co-operate. In light of that previous discussion, it will be interesting to hear what the Minister has to say.

In respect of the amendments introduced by the noble Lord, Lord Curry, on the need to toughen up requirements on Ofcom to act, I am sure the Minister will say that these powers are not required and that the Bill already makes provision for Ofcom blocking services which are failing in their duties. I echo the concern of the noble Lord, Lord Clement-Jones, about being overly prescriptive and not allowing Ofcom to do its job. The truth is that Ofcom may need discretion but it also needs teeth, and I will be interested to hear what the Minister has to say about whether he feels, in the light of the debate today and other conversations, that there is sufficient toughness in the Bill and that Ofcom will be able to do the job it is required to do. There is an issue of the balance of discretion versus requirement, and I know he will refer to this. I will also be interested to hear from the Minister about the view of Ofcom with respect to what is in the Bill, and whether it feels that it has sufficient powers.

I will raise a final point about the amendments in the name of the noble Lord, Lord Curry. I think they ask a valid question about the level of discretion that Ofcom will have. I ask the Minister this: if, a few years down the line, we find that Ofcom has not used the powers suitably, despite clear failures, what would the Government seek to do? With that, I look forward to hearing from the Minister.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, where necessary, the regulator will be able to apply to the courts for business disruption measures. These are court orders which will require third-party ancillary services and access facilities to withdraw their services from, or impede users’ access to, non-compliant regulated services. These are strong, flexible powers which will ensure that Ofcom can take robust action to protect users. At the same time, we have ensured that due process is followed. An application for a court order will have to specify the non-compliant provider, the grounds and evidence on which the application is based and the steps that third parties must take to withdraw services or block users’ access. Courts will consider whether business disruption measures are an appropriate way of preventing harm to users and, if an order is granted, ensure it is proportionate to the risk of harm. The court will also consider the interests of all relevant parties, which may include factors such as contractual terms, technical feasibility and the costs of the measures. These powers will ensure that services can be held to account for failure to comply with their duties under the Bill, while ensuring that Ofcom’s approach to enforcement is proportionate and upholds due process.

Online Safety Bill

Baroness Merron Excerpts

Thursday 25th May 2023 Lords Chamber

Moved by

[Baroness Merron]

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

[Baroness Merron (Lab)]

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

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

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

--- Later in debate ---

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

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

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

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

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

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

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

[Baroness Merron (Lab)]

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

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

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

Amendment 134 withdrawn.

Online Safety Bill

Baroness Merron Excerpts

Committee stage
Tuesday 16th May 2023 Lords Chamber

[Baroness Benjamin (LD)]

My Lords, I support Amendment 220E in the names of my noble friend Lord Clement-Jones and the noble Baroness, Lady Morgan of Cotes. I also support the amendments in the name of the noble Baroness, Lady Kidron, and Amendment 226, which deals with children’s mental health.

I have spoken on numerous occasions in this place about the devastating impact child sexual abuse has and how it robs children of their childhoods. I am sure everyone here will agree that every child has the right to a childhood free of sexual exploitation and abuse. That is why I am so passionate about protecting children from some of the most shocking and obscene harm you can imagine. In the case of this amendment and child sexual abuse, we are specifically talking about crimes against children.

The Internet Watch Foundation is an organisation I am proud to support as one of its parliamentary champions, because its staff are guardian angels who work tirelessly beyond the call of duty to protect children. In April 2019, I was honoured to host the IWF’s annual report here in Parliament. I was profoundly shocked and horrified by what I heard that day and in my continued interactions with the IWF.

That day, the IWF told the story of a little girl called Olivia. Olivia was just three years old when IWF analysts saw her. She was a little girl, with big green eyes and golden-brown hair. She was photographed and filmed in a domestic setting. This could have been any bedroom or bathroom anywhere in the country, anywhere in the world. Sadly, it was her home and she was with somebody she trusted. She was in the hands of someone who should have been there to look after her and nurture her. Instead, she was subjected to the most appalling sexual abuse over several years.

The team at the IWF have seen Olivia grow up in these images. They have seen her be repeatedly raped, and the torture she was subjected to. They tracked how often they saw Olivia’s images and videos over a three-month period. She appeared 347 times. On average that is five times every single day. In three in five of those images, she was being raped and tortured. Her imagery has also been identified as being distributed on commercial websites, where people are profiting from this appalling abuse.

I am happy to say that Olivia, thankfully, was rescued by law enforcement in 2013 at the age of eight, five years after her abuse began. Her physical abuse ended when the man who stole her childhood was imprisoned, but those images remain in circulation to this day. We know from speaking with adult survivors who have experienced revictimisation that it is the mental torture that blights lives and has an impact on their ability to leave their abuse in the past.

This Bill is supposed to help children like Olivia—and believe you me, she is just one of many, many children. The scale of these images in circulation is deeply worrying. In 2022, the IWF removed a record number of 255,000 web pages containing images of the sexual abuse and exploitation of children. Each one of these web pages can contain anything from one individual image of a child like Olivia, to thousands.

The IWF’s work is vital in removing millions of images from the internet each and every year, day in, day out. These guardian angels work tirelessly to stop this. As its CEO Susie Hargreaves often tells me, the world would be a much better place if the IWF did not have to exist, because this would mean that children were not suffering from sexual abuse or having such content spread online. But sadly, there is a need for the IWF. In fact, it is absolutely vital to the online safety landscape in the UK. As yet, this Bill does not go anywhere near far enough in recognising the important contribution the IWF has to make in implementing this legislation.

Victims of sexual abuse rely upon the IWF to protect and fight for them, safe in the knowledge that the IWF is on their side, working tirelessly to prevent millions of people potentially stumbling across their images and videos. This amendment is so important because, as my noble friend said, any delay to establishing roles and responsibilities of organisations like the IWF in working with Ofcom under the regulator regime risks leaving a vacuum in which the risks to children like Olivia will only increase further.

I urge the Government to take action to ensure that Ofcom clarifies how it intends to work with the Internet Watch Foundation and acknowledges the important part it has to play. We are months away from the Bill finally receiving Royal Assent. For children like Olivia, it cannot come soon enough; but it will not work as well as it could without the involvement of the Internet Watch Foundation. Let us make sure that we get this right and safeguard our children by accepting this amendment.

[Baroness Merron (Lab)]

My Lords, as the noble Lord, Lord Clement-Jones, observed, we have approached this group in an interesting way, having already heard the Minister’s feelings about the amendment. As I always think, forewarned is forearmed—so at least we know our starting point, and I am sure the Minister has listened to the debate and is reflecting.

I start by welcoming government Amendment 98A. We certainly value the work of various commissioners, but this amendment does not provide for what I would call a comprehensive duty. It needs supplementing by other approaches, and these are provided for by the amendments in this group.

The noble Baronesses, Lady Morgan, Lady Benjamin and Lady Kidron, and my noble friend Lady Healy and others, have made a powerful case for the Internet Watch Foundation being the designated expert body. I too wish to pay tribute to those who tackle online child sexual exploitation and abuse. They do it on behalf of all of us, but most notably the children they seek to protect, and their work is nothing short of an act of service.

Amendment 220E is in the names of the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Morgan. Despite the recommendation by the Joint Committee that scrutinised the draft Bill in December 2021 for the Internet Watch Foundation’s role in the future regulatory landscape to be clearly identified within the timescale set, it would require a role to be agreed with Ofcom, which has not yet happened. Perhaps the Minister can give the Committee some sense of where he feels Ofcom is in respect of the inclusion of the Internet Watch Foundation.

Online Safety Bill

Baroness Merron Excerpts

Committee stage
Tuesday 16th May 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I will be very brief. My noble friend has very eloquently expressed the support on these Benches for these amendments, and I am very grateful to the noble Baroness, Lady Morgan, for setting out the case so extremely convincingly, along with many other noble Lords. It is, as the noble Baroness, Lady Kidron, said, about the prevention of the normalisation of misogyny. As my noble friend said, it is for the tech companies to prevent that.

The big problem is that the Government have got themselves into a position where—except in the case of children—the Bill now deals essentially only with illegal harms, so you have to pick off these harms one by one and create illegality. That is why we had the debate in the last group about other kinds of harm. This is another harm that we are debating, precisely because the Government amended the Bill in the Commons in the way that they did. But it does not make this any less important. It is quite clear; we have talked about terms of service, user empowerment tools, lack of enforcement, lack of compliance and all the issues relating to these harms. The use of the expression “chilling effect”—I think by the noble Baroness, Lady Kidron—and then the examples given by the noble Baroness, Lady Gohir, absolutely illustrated that. We are talking about the impact on freedom of expression.

I am afraid that, once again, I do not agree with the noble Baroness, Lady Fox. Why do I find myself disagreeing on such a frequent basis? I think the harms override the other aspects that the noble Baroness was talking about.

We have heard about the lack of a proper complaints system—we are back to complaints again. These themes keep coming through, and until the Government see that there are flaws in the Bill, I do not think we are going to make a great deal more progress. The figure given was that more than half of domestic abuse survivors did not receive a response from the platform to their report of domestic abuse-related content. That kind of example demonstrates that we absolutely need this code.

There is an absolutely convincing case for what one of our speakers, probably the right reverend Prelate, called a holistic way of dealing with these abuses. That is what we need, and that is why we need this code.

[Baroness Merron (Lab)]

My Lords, the amendments in this group, which I am pleased to speak to now, shine a very bright light on the fact that there is no equality when it comes to abuse. We are not starting at a level playing field. This is probably the only place that I do not want to level up; I want to level down. This is not about ensuring that men can be abused as much as women; it is about the very core of what the Bill is about, which is to make this country the safest online space in the world. That is something that unites us all, but we do not start in the same place.

I thank all noble Lords for their very considered contributions in unpicking all the issues and giving evidence about why we do not have that level playing field. Like other noble Lords, I am grateful to the noble Baroness, Lady Morgan, for her thorough, illustrative and realistic introduction to this group of amendments, which really framed it today. Of course, the noble Baroness is supported in signing the amendment by the noble Baroness, Lady Kidron, the right reverend Prelate the Bishop of Gloucester and my noble friend Lord Knight.

The requirement in Amendment 97 that there should be an Ofcom code of practice is recognition that many aspects of online violence disproportionately affect women and girls. I think we always need to come back to that point, because nothing in this debate has taken me away from that very clear and fundamental point. Let us remind ourselves that the online face of violence against women and girls includes—this is not a full list—cyberflashing, abusive pile-ons, incel gangs and cyberstalking, to name but a few. Again, we are not starting from a very simple point; we are talking about an evolving online face of violence against women and girls, and the Bill needs to keep pace.

I associate myself with the words of the noble Baroness, Lady Morgan, and other noble Lords in thanking and appreciating the groups and individuals who have already done the work, and who have—if I might use the term—an oven-ready code of practice available to the Minister, should he wish to avail himself of it. I share the comments about the lack of logic. If violence against women and girls is part of the strategic policing requirement, and the Home Secretary says that dealing with violence against women and girls is a priority, why is this not part of a joined-up government approach? That is what we should now be seeing in the Bill. I am sure the Minister will want to address that question.

The right reverend Prelate the Bishop of Gloucester rightly said that abuse is abuse. Whether it is online or offline, it makes no difference. The positive emphasis should be that women and girls should be able to express themselves online as they should be able to offline. Again, that is a basic underlying point of these amendments.

I listened very closely to the words of the noble Baroness, Lady Stowell. I understand her nervousness, and she is absolutely right to bring before the Committee that perhaps a code of conduct of this nature could allow and encourage, to quote her, division. The challenge we have is that women and girls have a different level of experience. We all want to see higher standards of behaviour, as the noble Baroness referred to—I know that we will come back to that later. However, I cannot see how not having a code of conduct will assist those higher standards because the proposed code of conduct simply acknowledges the reality, which is that women and girls are 27 times more likely to be abused online than men are. I want to put on record that this is not about emphasising division, saying that it is all right to abuse men or, as the noble Baroness gives me the opportunity to say, saying that all men are somehow responsible—far from it. As ever, this is something that unites us all: the tackling of abuse wherever it takes place.

Amendment 104 in the name of my noble friend Lord Stevenson proposes an important change to Schedule 4: that

“women and girls, and vulnerable adults”

should have a higher standard of protection than other adult users. That amendment is there because the Bill is silent on these groups. There is no mention of them, so we seek to change this through that amendment.

To return to the issue of women and girls, two-thirds of women who report abuse to internet companies do not feel heard. Three-quarters of women change their behaviour after receiving online abuse. I absolutely agree with the noble Baroness, Lady Kidron, who made the point that the Bill currently assumes that there is no interconnection between different safety duties where somebody has more than one protected characteristic, because it misses reality. One has only to talk to Jewish women to know that, although anti-Semitism knows no bounds, if you are a Jewish woman then there is no doubt that you will be the subject of far greater abuse than your male counterpart. Similarly, women of colour are one-third more likely to be mentioned in abusive tweets than white women. Again, there is no level playing field.

As it stands, the Bill puts an onus on women and girls to protect themselves from online violence and abuse. The problem, as has been mentioned many times, is that user empowerment tools do not incentivise services to address the design of their service, which may be facilitating the spread of violence against women and girls. That point was very well made by my noble friend Lady Healy and the noble Baroness, Lady Gohir, in their contributions.

On the question of the current response to violence against women and girls from tech companies, an investigation by the Times identified that platforms such as TikTok and YouTube are profiting from a wave of misogynist content, with a range of self-styled “self-help gurus”, inspired by the likes of Andrew Tate, offering advice to their millions of followers, encouraging men and boys, in the way described by the noble Baroness, Lady Stowell, to engage with women and girls in such a way that amounts to pure abuse, instructing boys and men to ensure that women and girls in their lives are “compliant”, “insecure” and “well- behaved”. This is not the kind of online space that we seek.

I hope that the Minister, if he cannot accept the amendments, will give his assurance that he can understand what is behind them and the need for action, and will reflect and come back to your Lordships’ House in a way that can allow us to level down, rather than level up, the amount of abuse that is aimed at men but also, in this case in particular, at women and girls.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

It is up to Ofcom to decide how to set the codes out. What I am saying is that the codes deal with specific categories of threat or problem—illegal content, child safety content, child sexual abuse and exploitation—rather than with specific audiences who are affected by these sorts of problems. There is a circularity here in some of the criticism that we are not reflecting the fact that there are compound harms to people affected in more than one way and then saying that we should have a separate code dealing with one particular group of people because of one particular characteristic. We are trying to deal with categories of harm that we know disproportionately affect women and girls but which of course could affect others, as the noble Baroness rightly noted. Amendment 304—

[Baroness Merron (Lab)]

I thank the Minister for giving way. There is a bit of a problem that I would like to raise. I think the Minister is saying that there should not be a code of practice in respect of violence against women and girls. That sounds to me like there will be no code of practice in this one particular area, which seems rather harsh. It also does not tackle the issue on which I thought we were all agreed, even if we do not agree the way forward: namely, that women and girls are disproportionately affected. If it is indeed the case that the Minister feels that way, how does he suggest this is dealt with?

[Lord Parkinson of Whitley Bay (Con)]

There are no codes designed for Jewish people, Muslim people or people of colour, even though we know that they are disproportionately affected by some of these harms as well. The approach taken is to tackle the problems, which we know disproportionately affect all of those groups of people and many more, by focusing on the harms rather than the recipients of the harm.