Data Protection and Digital Information Bill

Debate between Lord Allan of Hallam and Lord Clement-Jones

Committee stage
Wednesday 24th April 2024 Grand Committee

[Lord Allan of Hallam (LD)]

My Lords, I want briefly to contribute to this debate, which I think is somewhat less contentious than the previous group of amendments. As somebody, again, who was working on the Online Safety Act all the way through, I really just pay tribute to the tenacity of the noble Baroness, Lady Kidron, for pursuing this detail—it is a really important detail. We otherwise risk, having passed the legislation, ending up in scenarios where everyone would know that it was correct for the data-gathering powers to be implemented but, just because of the wording of the law, they would not kick in when it was necessary. I therefore really want to thank the noble Baroness, Lady Kidron, for being persistent with it, and I congratulate the Government on recognising that, when there is an irresistible force, it is better to be a movable object than an immovable one.

I credit the noble Viscount the Minister for tabling these amendments today. As I say, I think that this is something that can pass more quickly because there is broad agreement around the Committee that this is necessary. It will not take away the pain of families who are in those circumstances, but it will certainly help coroners get to the truth when a tragic incident has occurred, whatever the nature of that tragic incident.

[Lord Clement-Jones (LD)]

My Lords, having been involved in and seen the campaigning of the bereaved families and the noble Baroness, Lady Kidron, in particular in the Joint Committee on the Draft Online Safety Bill onwards, I associate myself entirely with the noble Baroness’s statement and with my noble friend Lord Allan’s remarks.

Online Safety Bill

Debate between Lord Allan of Hallam and Lord Clement-Jones

Report stage
Wednesday 19th July 2023 Lords Chamber

[Lord Allan of Hallam (LD)]

My Lords, I am pleased to follow the noble Baroness, Lady Morgan of Coates, and her amendment, which tries to help parliamentary counsel draft better regulations later on. I am really struggling to see why the Government want to resist something that will make their life easier if they are going to do what we want them to do, which is to catch those high-risk services—as the noble Baroness, Lady Finlay, set out—but also, as we have discussed in Committee and on Report, exclude the low-risk services that have been named, such as Wikipedia and OpenStreetMap.

I asked the Minister on Report how that might happen, and he confirmed that such services are not automatically exempt from the user-to-user services regulations, but he also confirmed that they might be under the subsequent regulations drafted under Schedule 11. That is precisely why we are coming back to this today; we want to make sure that they can be exempt under the regulations drafted under Schedule 11. The test should be: would that be easier under the amended version proposed by the noble Baroness, Lady Morgan, or under the original version? I think it would be easier under the amended version. If the political intent is there to exclude the kind of services that I have talked about—the low-risk services—and I think it should be, because Ofcom should not be wasting time, in effect, supervising services that do not present a risk and, not just that, creating a supervisory model that may end up driving those services out of the UK market because they cannot legally say that they will make the kind of commitments Ofcom would expect them to make, having two different thresholds, size and functionality, gives the draftspeople the widest possible choice. By saying “or”, we are not saying they cannot set a condition that is “and” or excludes “and”, but “and” does exclude “or”, if I can put it that way. They can come back with a schedule that says, “You must be of this size and have this kind of functionality”, or they could say “this functionality on its own”—to the point made by the two noble Baronesses about some sites. They might say, “Look, there is functionality which is always so high-risk that we do not care what size you are; if you’ve got this functionality, you’re always going to be in”. Again, the rules as drafted at the moment would not allow them to do that; they would have to say, “You need to have this functionality and be of this size. Oh, whoops, by saying that you have to be of this size, we’ve now accidentally caught somebody else who we did not intend to catch”.

I look forward to the Minister’s response, but it seems entirely sensible that we have the widest possible choice. When we come to consider this categorisation under Schedule 11 later on, the draftspeople should be able to say either “You must be this size and have this functionality” or “If you’ve got this functionality, you’re always in” or “If you’re of this size, you’re always in”, and have the widest possible menu of choices. That will achieve the twin objectives which I think everyone who has taken part in the debate wants: the inclusion of high-risk services, no matter their size, and the exclusion of low-risk services, no matter their size—if they are genuinely low risk. That is particularly in respect of the services we have discussed and which the noble Lord, Lord Moylan, has been a very strong advocate for. In trying to do good, we should not end up inadvertently shutting down important information services that people in this country rely on. Frankly, people would not understand it if we said, “In the name of online safety, we’ve now made it so that you cannot access an online encyclopaedia or a map”.

It is going to be much harder for the draftspeople to draft categorisation under Schedule 11, as it is currently worded, that has the effect of being able to exclude low-risk services. The risk of their inadvertently including them and causing that problem is that much higher. The noble Baroness is giving us a way out and I hope the Minister will stand up and grab the lifeline. I suspect he will not.

[Lord Clement-Jones (LD)]

My Lords, I welcome the Minister’s Amendment 238A, which I think was in response to the DPRRC report. The sentiment around the House is absolutely clear about the noble Baroness’s Amendment 245. Indeed, she made the case conclusively for the risk basis of categorisation. She highlighted Zoe’s experience and I struggle to understand why the Secretary of State is resisting the argument. She knocked down the nine pins of legal uncertainty, and how it was broader than children and illegal by reference to Clause 12. The noble Baroness, Lady Finlay, added to the knocking down of those nine pins.

Smaller social media platforms will, on the current basis of the Bill, fall outside category 1. The Royal College of Psychiatrists made it pretty clear that the smaller platforms might be less well moderated and more permissive of dangerous content. It is particularly concerned about the sharing of information about methods of suicide or dangerous eating disorder content. Those are very good examples that it has put forward.

I return to the scrutiny committee again. It said that

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

should be adopted. It seems that many small, high-harm services will be excluded unless we go forward on the basis set out by the noble Baroness, Lady Morgan. The kind of breadcrumbing we have talked about during the passage of the Bill and, on the other hand, sites such as Wikipedia, as mentioned by noble friend, will be swept into the net despite being low risk.

I have read the letter from the Secretary of State which the noble Baroness, Lady Morgan, kindly circulated. I cannot see any argument in it why Amendment 245 should not proceed. If the noble Baroness decides to test the opinion of the House, on these Benches we will support her.

Online Safety Bill

Debate between Lord Allan of Hallam and Lord Clement-Jones

Report stage
Monday 17th July 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, Clause 158 is one of the more mysterious clauses in the Bill and it would greatly benefit from a clear elucidation by the Minister of how it is intended to work to reduce harm. I thank him for having sent me an email this afternoon as we started on the Bill, for which I am grateful; I had only a short time to consider it but I very much hope that he will put its content on the record.

My amendment is designed to ask how the Minister envisages using the power to direct if, say, there is a new contagious disease or riots, and social media is a major factor in the spread of the problem. I am trying to erect some kind of hypothetical situation through which the Minister can say how the power will be used. Is the intention, for example, to set Ofcom the objective of preventing the spread of information on regulated services injurious to public health or safety on a particular network for six months? The direction then forces the regulator and the social media companies to confront the issue and perhaps publicly shame an individual company into using their tools to slow the spread of disinformation. The direction might give Ofcom powers to gather sufficient information from the company to make directions to the company to tackle the problem.

If that is envisaged, which of Ofcom’s media literacy powers does the Minister envisage being used? Might it be Section 11(1)(e) of the Communications Act 2003, which talks about encouraging

“the development and use of technologies and systems for regulating access to such material, and for facilitating control over what material is received, that are both effective and easy to use”.

By this means, Ofcom might encourage a social media company to regulate access to and control over the material that is a threat.

Perhaps the Minister could set out clearly how he intends all this to work, because on a straight reading of Clause 158, we on these Benches have considerable concerns. The threshold for direction is low—merely having

“reasonable grounds for believing that circumstances exist”—

and there is no sense here of the emergency that the then Minister, Mr Philp, cited in the Commons Public Bill Committee on 26 May 2022, nor even of the exceptional circumstances in Amendment 138 to Clause 39, which the Minister tabled recently. The Minister is not compelled by the clause to consult experts in public health, safety or national security. The Minister can set any objectives for Ofcom, it seems. There is no time limit for the effect of the direction and it seems that the direction can be repeatedly extended with no limit. If the Minister directs because they believe there is a threat to national security, we will have the curious situation of a public process being initiated for reasons the Minister is not obliged to explain.

Against this background, there does not seem to be a case for breaching the international convention of the Government not directing a media regulator. Independence of media regulators is the norm in developed democracies, and the UK has signed many international statements in this vein. As recently as April 2022, the Council of Europe stated:

“Media and communication governance should be independent and impartial to avoid undue influence on policymaking or”


the discriminatory and

“preferential treatment of powerful groups”,

including those with significant political or economic power. The Secretary of State, by contrast, has no powers over Ofcom regarding the content of broadcast regulation and has limited powers to direct over radio spectrum and wireless, but not content. Ofcom’s independence in day-to-day decision-making is paramount to preserving freedom of expression. There are insufficient safeguards in this clause, which is why I argue that it should not stand part of the Bill.

I will be brief about Clause 159 because, by and large, we went through it in our debate on a previous group. Now that we can see the final shape of the Bill, it really does behove us to stand back and see where the balance has settled on Ofcom’s independence and whether this clause needs to stand part of the Bill. The Secretary of State has extensive powers under various other provisions in the Bill. The Minister has tabled welcome amendments to Clause 39, which have been incorporated into the Bill, but Clause 155 still allows the Secretary of State to issue a “statement of strategic priorities”, including specific outcomes, every five years.

Clause 159 is in addition to this comprehensive list, but the approach in the clause is incredibly broad. We have discussed this, and the noble Lord, Lord Moylan, has tabled an amendment that would require parliamentary scrutiny. The Secretary of State can issue guidance to Ofcom on more or less anything encompassed by the exercise of its functions under this Act, with no consultation of the public or Parliament prior to making such guidance. The time limit for producing strategic guidance is three years rather than five. Even if it is merely “have regard” guidance, it represents an unwelcome intervention in Ofcom going about its business. If the Minister responds that the guidance is merely “to have regard”, I will ask him to consider this: why have it all, then, when there are so many other opportunities for the Government to intervene? For the regulated companies, it represents a regulatory hazard of interference in independent regulation and a lack of stability. As the noble Lord, Lord Bethell, said in Committee, a clear benefit of regulatory independence is that it reduces lobbying of the Minister by powerful corporate interests.

Now that we can see it in context, I very much hope that the Minister will agree that Clause 159 is a set of guidance too many that compromises Ofcom’s independence and should not stand part of the Bill.

[Lord Allan of Hallam (LD)]

My Lords, I will add to my noble friend’s call for us to consider whether Clause 158 should be struck from the Bill as an unnecessary power for the Secretary of State to take. We have discussed powers for the Secretary of State throughout the Bill, with some helpful improvements led by the noble Baroness, Lady Stowell. This one jars in particular because it is about media literacy; some of the other powers related to whether the Secretary of State could intervene on the codes of practice that Ofcom would issue. The core question is whether we trust Ofcom’s discretion in delivering media literacy and whether we need the Secretary of State to have any kind of power to intervene.

I single out media literacy because the clue is in the name: literacy is a generic skill that you acquire about dealing with the online world; it is not about any specific text. Literacy is a broader set of skills, yet Clause 158 has a suggestion that, in response to specific forms of content or a specific crisis happening in the world, the Secretary of State would want to takesb this power to direct the media literacy efforts. To take something specific and immediate to direct something that is generic and long-term jars and seems inappropriate.

I have a series of questions for the Minister to elucidate why this power should exist at all. It would be helpful to have an example of what kind of “public statement notice”—to use the language in the clause—the Government might want to issue that Ofcom would not come up with on its own. Part of the argument we have been presented with is that, somehow, the Government might have additional information, but it seems quite a stretch that they could come up with that. In an area such as national security, my experience has been that companies often have a better idea of what is going on than anybody in government.

Thousands of people out there in the industry are familiar with APT 28 and APT 29 which, as I am sure all noble Lords know, are better known by their names Fancy Bear and Cozy Bear. These are agents of the Russian state that put out misinformation. There is nothing that UK agencies or the Secretary of State might know about them that is not already widely known. I remember talking about the famous troll factory run by Prigozhin, the Internet Research Agency, with people in government in the context of Russian interference—they would say “Who?” and have to go off and find out. In dealing with threats such as that between the people in the companies and Ofcom, you certainly want a media literacy campaign which tells you about these troll agencies and how they operate and gives warnings to the public, but I struggle to see why you need the Secretary of State to intervene as opposed to allowing Ofcom’s experts to work with company experts and come up with a strategy to deal with those kinds of threat.

The other example cited of an area where the Secretary of State might want to intervene is public health and safety. It would be helpful to be specific; had they had it, how would the Government have used this power during the pandemic in 2020 and 2021? Does the Minister have examples of what they were frustrated about and would have done with these powers that Ofcom would not do anyway in working with the companies directly? I do not see that they would have had secret information which would have meant that they had to intervene rather than trusting Ofcom and the companies to do it.

Perhaps there has been an interdepartmental workshop between DHSC, DCMS and others to cook up this provision. I assume that Clause 158 did not come from nowhere. Someone must have thought, “We need these powers in Clause 158 because we were missing them previously”. Are there specific examples of media literacy campaigns that could not be run, where people in government were frustrated and therefore wanted a power to offer it in future? It would be really helpful to hear about them so that we can understand exactly how the Clause 158 powers will be used before we allow this additional power on to the statute book.

In the view of most people in this Chamber, the Bill as a whole quite rightly grants the Government and Ofcom, the independent regulator, a wide range of powers. Here we are looking specifically at where the Government will, in a sense, overrule the independent regulator by giving it orders to do something it had not thought of doing itself. It is incumbent on the Government to flesh that out with some concrete examples so that we can understand why they need this power. At the moment, as noble Lords may be able to tell, these Benches are not convinced that they do.

--- Later in debate ---

[Lord Allan of Hallam (LD)]

My Lords, the noble Lord, Lord Moylan, and the noble Baroness, Lady Fox, have a very strong point to make with this amendment. I have tried in our discussions to bring some colour to the debate from my own experience so I will tell your Lordships that in my former professional life I received representations from many Ministers in many countries about the content we should allow or disallow on the Facebook platform that I worked for.

That was a frequent occurrence in the United Kingdom and extended to Governments of all parties. Almost as soon as I moved into the job, we had a Labour Home Secretary come in and suggest that we should deal with particular forms of content. It happened through the coalition years. Indeed, I remember meeting the Minister’s former boss at No. 10 in Davos, of all places, to receive some lobbying about what the UK Government thought should be on or off the platform at that time. In that case it was to do with terrorist content; there was nothing between us in terms of wanting to see that content gone. I recognise that this amendment is about misinformation and disinformation, which is perhaps a more contentious area.

As we have discussed throughout the debate, transparency is good. It keeps everybody on the straight and narrow. I do not see any reason why the Government should not be forthcoming. My experience was that the Government would often want to go to the Daily Telegraph, the Daily Mail or some other upright publication and tell it how they had been leaning on the internet companies—it was part of their communications strategy and they were extremely proud of it—but there will be other circumstances where they are doing it more behind the scenes. Those are the ones we should be worried about.

If those in government have good reason to lean on an internet company, fine—but knowing that they have to be transparent about it, as in this amendment, will instil a certain level of discipline that would be quite healthy.

[Lord Clement-Jones (LD)]

My Lords, clearly, there is a limited number of speakers in this debate. We should thank the noble Lord, Lord Moylan, for tabling this amendment because it raises a very interesting point about the transparency—or not—of the Counter Disinformation Unit. Of course, it is subject to an Oral Question tomorrow as well, which I am sure the noble Viscount will be answering.

There is some concern about the transparency of the activities of the Counter Disinformation Unit. In its report, Ministry of Truth, which deals at some length with the activities of the Counter Disinformation Unit, Big Brother Watch says:

“Giving officials an unaccountable hotline to flag lawful speech for removal from the digital public square is a worrying threat to free speech”.


Its complaint is not only about oversight; it is about the activities. Others such as Full Fact have stressed the fact that there is little or no parliamentary scrutiny. For instance, freedom of information requests have been turned down and Written Questions which try to probe what the activities of the Counter Disinformation Unit are have had very little response. As it says, when the Government

“lobby internet companies about content on their platforms … this is a threat to freedom of expression”.

We need proper oversight, so I am interested to hear the Minister’s response.

--- Later in debate ---

[Lord Allan of Hallam (LD)]

My Lords, I will make a brief contribution because I was the misery guts when this was proposed first time round. I congratulate the noble Baroness, Lady Harding, not just on working with colleagues to come up with a really good solution but on seeking me out. If I heard someone be as miserable as I was, I might try to avoid them. She did not; she came and asked me, “Why are you miserable? What is the problem here?”, and took steps to address it. Through her work with the Government, their amendments address my main concerns.

My first concern, as we discussed in Committee, was that we would be asking large companies to regulate their competitors, because the app stores are run by large tech companies. She certainly understood that concern. The second was that I felt we had not necessarily yet clearly defined the problem. There are lots of problems. Before you can come up with a solution, you need a real consensus on what problem you are trying to address. The government amendment will very much help in saying, “Let’s get really crunchy about the actual problem that we need app stores to address”.

Finally, I am a glass-half-full kind of guy as well as a misery guts—there is a contradiction there—and so I genuinely think that these large tech businesses will start to change their behaviour and address some of the concerns, such as getting age ratings correct, just by virtue of our having this regulatory framework in place. Even if today the app stores are technically outside, the fact that the sector is inside and that this amendment tells them that they are on notice will, I think and hope, have a hugely positive effect and we will get the benefits much more quickly than the timescale envisaged in the Bill. That feels like a true backstop. I sincerely hope that the people in those companies, who I am sure will be glued to our debate, will be thinking that they need to get their act together much more quickly. It is better for them to do it themselves than wait for someone to do it to them.

[Lord Clement-Jones (LD)]

My Lords, I add my congratulations to the noble Baroness, Lady Harding, on her tenacity, and to the Minister on his flexibility. I believe that where we have reached is pretty much the right balance. There are the questions that the noble Baroness, Lady Harding, and others have asked of the Minister, and I hope he will answer those, but this is a game-changer, quite frankly. Rightly, the noble Baroness has paid tribute to the companies which have put their head above the parapet. That was not that easy for them to do when you consider that those are the platforms they have to depend on for their services to reach the public.

Unlike the research report, they have reserved powers that the Secretary of State can use if the report is positive, which I hope it will be. I believe this could be a turning point. The digital markets and consumers Bill is coming down the track this autumn and that is going to give greater powers to make sure that the app stores can be tackled—after all, there are only two of them and they are an oligopoly. They are the essence of big tech, and they need to function in a much more competitive way.

The noble Baroness talked about timing, and it needs to be digital timing, not analogue. Four years does seem a heck of a long time. I hope the Minister will address that.

Then there is the really important aspect of harmful content. In the last group, the Minister reassured us about systems and processes and the illegality threshold. Throughout, he has tried to reassure us that this is all about systems and processes and not so much about content. However, every time we look, we see that content is there almost by default, unless the subject is raised. We do not yet have a Bill that is actually fit for purpose in that sense. I hope the Minister will use his summer break wisely and read through the Bill to make sure that it meets its purpose, and then come back at Third Reading with a whole bunch of amendments that add functionalities. How about that for a suggestion? It is said in the spirit of good will and summer friendship.

The noble Baroness raised a point about transparency when it comes to Ofcom publishing its review. I hope the Minister can give that assurance as well.

The noble Baroness, Lady Kidron, asked about the definition of app store. That is the gatekeeper function, and we need to be sure that that is what we are talking about.

I end by congratulating once again the noble Baroness and the Minister on where we have got to so far.

Online Safety Bill

Debate between Lord Allan of Hallam and Lord Clement-Jones

Report stage
Thursday 6th July 2023 Lords Chamber

[Lord Allan of Hallam (LD)]

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

“bot or other automated tool”.

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

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

[Lord Clement-Jones (LD)]

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

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

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

Online Safety Bill

Debate between Lord Allan of Hallam and Lord Clement-Jones

Committee stage
Tuesday 25th April 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Harding. If one is permitted to say this in the digital age, I am on exactly the same page as she is.

There are two elements to the debate on this group. It is partly about compliance, and I absolutely understand the point about the costs of that, but I also take comfort from some of the things that the noble Lord. Lord Vaizey, said about the way that Ofcom is going to deliver the regulation and the very fact that this is going to be largely not a question of interpretation of the Act, when it comes down to it, but is going to be about working with the codes of practice. That will be a lot more user-friendly than simply having to go to expensive expert lawyers, as the noble Baroness, Lady Fox, said—not that I have anything against expensive expert lawyers.

I am absolutely in agreement with the noble Baroness, Lady Kidron, that small is not safe. As the noble Baroness, Lady Harding, described, small can become big. We looked at this in our Joint Committee and recommended to the Government that they should take a more nuanced approach to regulation, based not just on size and high-level functionality but on factors such as risk, reach, user base, safety performance and business model. All those are extremely relevant but risk is the key, right at the beginning. The noble Baroness, Lady Fox, also said that Reddit should potentially be outside, but Reddit has had its own problems, as we know. On that front, I am on absolutely the same page as those who have spoken about keeping us where we are.

The noble Lord, Lord Moylan, has been very cunning in the way that he has drawn up his Amendment 9. I am delighted to be on the same page as my noble friend —we are making progress—but I agree only with the first half of the amendment because, like the noble Baroness, Lady Kidron, I am a financial contributor to Wikipedia. A lot of us depend on Wikipedia; we look up the ages of various Members of this House when we see them in full flight and think, “Good heavens!” Biographies are an important part of this area. We have all had Jimmy Wales saying, as soon as we get on to Wikipedia, “You’ve already looked at Wikipedia 50 times this month. Make a contribution”, and that is irresistible. There is quite a strong case there. It is risk-based so it is not inconsistent with the line taken by a number of noble Lords in all this. I very much hope that we can get something out of the Minister—maybe some sort of sympathetic noises for a change—at this stage so that we can work up something.

I must admit that the briefing from Wikimedia, which many of us have had, was quite alarming. If the Bill means that we do not have users in high-risk places then we will find that adults get their information from other sources that are not as accurate as Wikipedia —maybe from ChatGPT or GPT-4, which the noble Lord, Lord Knight, is clearly very much an expert in—and that marginalised websites are shut down.

[Lord Allan of Hallam (LD)]

For me, one of the features of the schedule’s list of exempted sites is foreign state entities. Therefore, we could end up in the absurd situation where you could not read about the Ukraine war on Wikipedia, but you would be able to read about the Ukraine war on the Russian Government website.

[Lord Clement-Jones (LD)]

My Lords, if we needed an example of something that gave us cause for concern, that would be it; but a very good case has been made, certainly for the first half of the amendment in the name of the noble Lord, Lord Moylan, and we on these Benches support it.

Online Safety Bill

Debate between Lord Allan of Hallam and Lord Clement-Jones

Committee stage
Wednesday 19th April 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I thank the noble Baroness. I hope I have not appeared to rush the proceedings, but I am conscious that there are three Statements after the Bill. I thank the noble Lord, Lord Stevenson, for tabling this amendment, speaking so cogently to it and inspiring so many interesting and thoughtful speeches today. He and I have worked on many Bills together over the years, and it has been a real pleasure to see him back in harness on the Opposition Front Bench, both in the Joint Committee and on this Bill. Long may that last.

It has been quite some journey to get to this stage of the Bill; I think we have had four Digital Ministers and five Prime Ministers since we started. It is pretty clear that Bismarck never said, “Laws are like sausages: it’s best not to see them being made”, but whoever did say it still made a very good point. The process leading to today’s Bill has been particularly messy, with Green and White Papers; a draft Bill; reports from the Joint Committee and Lords and Commons Select Committees; several versions of the Bill itself; and several government amendments anticipated to come. Obviously, the fact that the Government chose to inflict last-minute radical surgery on the Bill to satisfy what I believe are the rather unjustified concerns of a small number in the Government’s own party made it even messier.

It is extremely refreshing, therefore, to start at first principles, as the noble Lord, Lord Stevenson, has done. He has outlined them and the context in which we should see them—namely, we should focus essentially on the systems, what is readily enforceable and where safety by design and transparency are absolutely the essence of the purpose of the Bill. I share his confidence in Ofcom and its ability to interpret those purposes. I say to the noble Baroness, Lady Stowell, that I am not going to dance on the heads of too many pins about the difference between “purpose” and “objective”. I think it is pretty clear what the amendment intends, but I do have a certain humility about drafting; the noble Baroness, Lady Chakrabarti, reminded us of that. Of course, one should always be open to change and condensation of wording if we need to do that. But we are only at Amendment 1 in Committee, so there is quite a lot of water to flow under the bridge.

It is very heartening that there is a great deal of cross-party agreement about how we must regulate social media going forward. These Benches—and others, I am sure—will examine the Bill extremely carefully and will do so in a cross-party spirit of constructive criticism, as we explained at Second Reading. Our Joint Committee on the draft Bill exemplified that cross-party spirit, and I am extremely pleased that all four signatories to this amendment served on the Joint Committee and readily signed up to its conclusions.

Right at the start of our report, we made a strong case for the Bill to set out these core objectives, as the noble Lord, Lord Stevenson, has explained, so as to provide clarity—that word has been used around the Committee this afternoon—for users and regulators about what the Bill is trying to achieve and to inform the detailed duties set out in the legislation. In fact, I believe that the noble Lord, Lord Stevenson, has improved on that wording by including a duty on the Secretary of State, as well as Ofcom, to have regard to the purposes.

We have heard some very passionate speeches around the Committee for proper regulation of harms on social media. The case for that was made eloquently to the Joint Committee by Ian Russell and by witnesses such as Edleen John of the FA and Frances Haugen, the Facebook whistleblower. A long line of reports by Select Committees and all-party groups have rightly concluded that regulation is absolutely necessary given the failure of the platforms even today to address the systemic issues inherent in their services and business models.

The introduction to our Joint Committee report makes it clear that without the original architecture of a duty of care, as the White Paper originally proposed, we need an explicit set of objectives to ensure clarity for Ofcom when drawing up the codes and when the provisions of the Bill are tested in court, as they inevitably will be. Indeed, in practice, the tests that many of us will use when judging whether to support amendments as the Bill passes through the House are inherently bound up with these purposes, several of which many of us mentioned at Second Reading. Decisions may need to be made on balancing some of these objectives and purposes, but that is the nature of regulation. I have considerable confidence, as I mentioned earlier, in Ofcom’s ability to do this, and those seven objectives—as the right reverend Prelate reminded us, the rule of seven is important in other contexts—set that out.

In their response to the report published more than a year ago, the Government repeated at least half of these objectives in stating their own intentions for the Bill. Indeed, they said:

“We are pleased to agree with the Joint Committee on the core objectives of the Bill”,


and, later:

“We agree with all of the objectives the Joint Committee has set out, and believe that the Bill already encapsulates and should achieve these objectives”.


That is exactly the point of dispute: we need this to be explicit, and the Government seem to believe that it is implicit. Despite agreeing with those objectives, at paragraph 21 of their response the Government say:

“In terms of the specific restructure that the Committee suggested, we believe that using these objectives as the basis for Ofcom’s regulation would delegate unprecedented power to a regulator. We do not believe that reformulating this regulatory framework in this way would be desirable or effective. In particular, the proposal would leave Ofcom with a series of high-level duties, which would likely create an uncertain and unclear operating environment”.


That is exactly the opposite of what most noble Lords have been saying today.

It has been an absolute pleasure to listen to so many noble Lords across the Committee set out their ambitions for the Bill and their support for this amendment. It started with the noble Baroness, Lady Kidron, talking about this set of purposes being the “North Star”. I pay tribute to her tireless work, which drove all of us in the Joint Committee on in an extremely positive way. I am not going to go through a summing-up process, but what my noble friend had to say about the nature of the risk we are undertaking and the fact that we need to be clear about it was very important. The whole question of clarity and certainty for business and the platforms, in terms of making sure that they understand the purpose of the Bill—as the noble Baroness, Lady Harding, and many other noble Lords mentioned—is utterly crucial.

If noble Lords look at the impact assessment, they will see that the Government seem to think the cost of compliance is a bagatelle—but, believe me, it will not be. It will be a pretty expensive undertaking to train people in those platforms, across social media start-ups and so on to understand the nature of their duties.

[Lord Allan of Hallam (LD)]

I was just refreshing myself on what the impact assessment says. It says that the cost of reading and understanding the regulations will range from £177 for a small business to £2,694 for a large category 1 service provider. To reinforce my noble friend’s point: it says it will cost £177 to read and understand the Bill. I am not sure that will be what happens in practice.

[Lord Clement-Jones (LD)]

I thank my noble friend for having the impact assessment so close to hand; that is absolutely correct.

The noble Baroness, Lady Fox, talked about unintended consequences—apart from bringing the people of Ukraine into the argument, which I thought was slightly extraneous. I think we need a certain degree of humility about the Bill. As the noble Lord, Lord Knight, said, this may well be part 1; we may need to keep iterating to make sure that this is effective for child safety and for the various purposes set out in the Bill. The Government have stated that this amendment would create greater uncertainty, but that is exactly the opposite of what our committee concluded. I believe, as many of us do, that the Government are wrong in taking the view that they have; I certainly hope that they will reconsider.

At Second Reading, the noble Lord, Lord Stevenson, made something that he probably would not want, given the antecedence of the phrase, to characterise as a big open offer to the Minister to work on a cross-party basis to improve the Bill. We on these Benches absolutely agree with that approach. We look forward to the debates in Committee in that spirit. We are all clearly working towards the same objective, so I hope the Government will respond in kind. Today is the first opportunity to do so—I set out that challenge to the Minister.