Data Protection and Digital Information Bill

Debate between Lord Clement-Jones and Baroness Harding of Winscombe

Committee stage
Monday 15th April 2024 Grand Committee

[Baroness Harding of Winscombe (Con)]

My Lords, I rise once again in my Robin role to support the noble Baroness, Lady Kidron, on this amendment. We had a debate on 23 November last year that the noble Baroness brought on this very issue of edtech. Rather than repeat all the points that were made in that very useful debate, I point my noble friend the Minister to it.

I would just like to highlight a couple of quick points. First, in supporting this amendment, I am not anti-edtech in any way, shape or form. It is absolutely clear that technology can bring huge benefits to students of all ages but it is also clear that education is not unique. It is exactly like every other part of society: where technology brings benefit, it also brings substantial risk. We are learning the hard way that thinking that any element of society can mitigate the risks of technology without legal guard-rails is a mistake.

We have seen really clearly with the age-appropriate design code that commercial organisations operating under its purview changed the way they protected children’s data as a result of that code. The absence of the equivalent code for the edtech sector should show us clearly that we will not have had those same benefits. If we bring edtech into scope, either through this amendment or simply through extending the age-appropriate design code, I would hazard a strong guess that we would start to see very real improvements in the protection of children’s data.

In the debate on 23 November, I asked my noble friend the Minister, the noble Baroness, Lady Barran, why the age-appropriate design code did not include education. I am not an expert in education, by any stretch of the imagination. The answer I received was that it was okay because the keeping children safe in education framework covered edtech. Since that debate, I have had a chance to read that framework, and I cannot find a section in it that specifically addresses children’s data. There is lots of really important stuff in it, but there is no clearly signposted section in that regard. So even if all the work fell on schools, that framework on its own, as published on GOV.UK, does not seem to meet the standards of a framework for data protection for children in education. However, as the noble Baroness, Lady Kidron, said, this is not just about schools’ responsibility but the edtech companies’ responsibility, and it is clear that there is no section on that in the keeping children safe in education framework either.

The answer that we received last year in this House does not do justice to the real question: in the absence of a specific code—the age-appropriate design code or a specific edtech code—how can we be confident that there really are the guardrails, which we know we need to put in place in every sector, in this most precious and important sector, which is where we teach our children?

[Lord Clement-Jones (LD)]

My Lords, I am absolutely delighted to be able to support this amendment. Like the noble Baroness, Lady Harding, I am not anti-edtech at all. I did not take part in the debate last year. When I listen to the noble Baroness, Lady Kidron, and even having had the excellent A Blueprint for Education Data from the 5Rights Foundation and the Digital Futures for Children brief in support of a code of practice for education technology, I submit that it is chilling to hear what is happening as we speak with edtech in terms of extraction of data and not complying properly with data protection.

I got involved some years ago with the advisory board of the Institute for Ethical AI in Education, which Sir Anthony Seldon set up with Professor Rose Luckin and Priya Lakhani. Our intention was slightly broader—it was designed to create a framework for the use of AI specifically in education. Of course, one of the very important elements was the use of data, and the safe use of data, both by those procuring AI systems and by those developing them and selling them into schools. That was in 2020 and 2021, and we have not moved nearly far enough since that time. Obviously, this is data specific, because we are talking about the data protection Bill, but what is being proposed here would cure some of the issues that are staring us in the face.

As we have been briefed by Digital Futures for Children, and as the noble Baroness, Lady Kidron, emphasised, there is widespread invasion of children’s privacy in data collection. Sometimes there is little evidence to support the claimed learning benefits, while schools and parents lack the technical and legal expertise to understand what data is collected. As has been emphasised throughout the passage of this Bill, children deserve the highest standards of privacy and data protection—especially in education, of course.

From this direction, I wholly support what the noble Baroness, Lady Kidron, is proposing, so well supported by the noble Baroness, Lady Harding. Given that it again appears that the Government gave an undertaking to bring forward a suitable code of practice but have not done so, there is double reason to want to move forward on this during the passage of the Bill. We very much support Amendment 146 on that basis.

Data Protection and Digital Information Bill

Debate between Lord Clement-Jones and Baroness Harding of Winscombe

Committee stage
Wednesday 27th March 2024 Grand Committee

[Lord Clement-Jones (LD)]

My Lords, I will speak to almost all the amendments in this group, other than those proposed by the noble Baroness, Lady Kidron. I am afraid that this is a huge group; we probably should have split it to have a better debate, but that is history.

I very much support what the noble Baroness said about her amendments, particularly Amendment 79. The mandation of ethics by design is absolutely crucial. There are standards from organisations such as the IEEE for that kind of ethics by design in AI systems. I believe that it is possible to do exactly what she suggested, and we should incorporate that into the Bill. It illustrates that process is as important as outcomes. We are getting to a kind of philosophical approach here, which illustrates the differences between how some of us and the Government are approaching these things. How you do something, the way you design it and the fact that it needs to be ethical is absolutely cardinal in any discussion—particularly about artificial intelligence. I do not think that it is good enough simply to talk about the results of what AI does without examining how it does it.

Having said that, I turn to Amendment 80 and the Clause 16 stand part notice. Under Clause 16, the Government are proposing to remove Article 27 of the UK GDPR without any replacement. By removing the legal requirement on non-UK companies to retain a UK representative, the Government would deprive individuals of a local, accessible point of contact through which people can make data protection rights requests. That decision threatens people’s capacity to exercise their rights, reducing their ability to remain in control of their personal information.

The Government say that removing Article 27 will boost trade with the UK by reducing the compliance burden on non-UK businesses. But they have produced little evidence to support the notion that this will be the case and have overlooked the benefits in operational efficiency and cost savings that the representative can bring to non-UK companies. Even more worryingly, the Government appear to have made no assessment of the impact of the change on UK individuals, in particular vulnerable groups such as children. It is an ill-considered policy decision that would see the UK take a backward step in regulation at a time when numerous other jurisdictions, such as Switzerland, Turkey, South Korea, China and Thailand, are choosing to safeguard the extraterritorial application of their data protection regimes through the implementation of the legal requirement to appoint a representative.

The UK representative ensures that anyone in the UK wishing to make a privacy-related request has a local, accessible point of contact through which to do so. The representative plays a critical role in helping people to access non-UK companies and hold them accountable for the processing of their data. The representative further provides a direct link between the ICO and non-UK companies to enable the ICO to enforce the UK data protection regime against organisations outside the UK.

On the trade issue, the Government argue that by eliminating the cost of retaining a UK representative, non-UK companies will be more inclined to offer goods and services to individuals in the UK. Although there is undeniably a cost to non-UK companies of retaining a representative, the costs are significantly lower than the rather disproportionately inflated figures that were cited in the original impact assessment, which in some cases were up to 10 times the average market rate for representative services. The Government have put forward very little evidence to support the notion that removing Article 27 will boost trade with the UK.

There is an alternative approach. Currently, the Article 27 requirement to appoint a UK representative applies to data controllers and processors. An alternative approach to the removal of Article 27 in its entirety would be to retain the requirement but limit its scope so that it applies only to controllers. Along with the existing exemption at Article 27(2), this would reduce the number of non-UK companies required to appoint a representative, while arguably still preserving a local point of contact through which individuals in the UK can exercise their rights, as it is data controllers that are obliged under Articles 15 to 22 of the UK GDPR to respond to data subject access requests. That is a middle way that the Government could adopt.

Moving to Amendment 82, at present, the roles of senior responsible individual in the Bill and data protection officer under the EU GDPR appear to be incompatible. That is because the SRI is part of the organisation’s senior management, whereas a DPO must be independent of an organisation’s senior management. This puts organisations caught by both the EU GDPR and the UK GDPR in an impossible situation. At the very least, the Government must explain how they consider that these organisations can comply with both regimes in respect of the SRI and DPO provisions.

The idea of getting rid of the DPO runs completely contrary to the way in which we need to think about accountability for AI systems. We need senior management who understand the corporate significance of the AI systems they are adopting within the business. The ideal way forward would be for the DPO to be responsible for that when AI regulation comes in, but the Government seem to be completely oblivious to that. Again, it is highly frustrating for those of us who thought we had a pretty decent data protection regime to find this kind of watering down taking place in the face of the risks from artificial intelligence that are becoming more and more apparent as the days go by. I firmly believe that it will inhibit the application and adoption of AI within businesses if we do not have public trust and business certainty.

I now come to oppose the question that Clause 18, on the duty to keep records, stand part of the Bill. This clause seems to masquerade as an attempt to get rid of red tape. In reality, it makes organisations less likely to be compliant with the main obligations in the UK GDPR, as it will be amended by the Bill, and therefore heightens the risk both to the data subjects whose data they hold and to the organisations in terms of non-compliance. This is, of course, the duty to keep records. It is particularly unfair on small businesses that do not have the resources to take advice on these matters. Records of processing activities are one of the main ways in which organisations can meet the requirements of Article 5(2) of the UK GDPR to demonstrate their compliance. The obligation to demonstrate compliance remains unaltered under the Bill. Therefore, dispensing with the main way of achieving compliance with Article 5(2) is impractical and unhelpful.

At this point, I should say that we support Amendment 81 in the name of the noble Baroness, Lady Jones, which concerns the assessment of high-risk processing.

Our amendments on data protection impact assessments are Amendments 87, 88 and 89. Such assessments are currently required under Article 35 of the UK GDPR and are essential to ensuring that organisations do not deploy, and individuals are not subjected to, systems that may lead to unlawful, rights-violating or discriminatory outcomes. The Government’s data consultation response noted:

“The majority of respondents agreed that data protection impact assessments requirements are helpful in identifying and mitigating risk, and disagreed with the proposal to remove the requirement to undertake data protection impact assessments”.


However, under Clause 20, the requirement to perform an impact assessment would be seriously diluted. That is all I need to say. The Government frequently pray in aid the consultation—they say, “Well, we did that because of the consultation”—so why are they flying in the face of it? That seems an extraordinary thing to do in circumstances where impact assessments are regarded as a useful tool and training by business has clearly adjusted to them over the years since the Data Protection Act 2018.

[Baroness Harding of Winscombe (Con)]

My Lords, I rise to speak in support Amendments 79, 83, 85, 86, 93, 96, 97, 105 and 107, to which I have added my name. An awful lot has already been said. Given the hour of the day, I will try to be brief, but I want to speak to the child amendments I have put my name to and to the non-child ones and to raise things up a level.

The noble Lord, Lord Clement-Jones, talked about trust. I have spent the best part of the past 15 years running consumer and citizen digitally enabled services. The benefit that technology brings to life is clear to me but—this is a really important “but”—our customers and citizens need to trust what we do with their data, so establishing trust is really important.

One the bedrock of that trust is forcing—as a non-technologist, I use that word advisedly—technologists to set out what they are trying to do, what the technology they propose to build will do and what the risks and opportunities of that technology are. My experience as a non-engineer is that when you put engineers under pressure, they can speak English, but it is not their preferred language. They do not find it easy to articulate the risks and opportunities of the technology they are building, which is why forcing businesses that build these services to set out in advance the data protection impacts of the services they are building is so important. It is also why you have to design with safety in mind upfront because technology is so hard to retrofit. If you do not design it up front with ethics and safety at its core, it is gone by the time you see the impact in the real world.

Data Protection and Digital Information Bill

Debate between Lord Clement-Jones and Baroness Harding of Winscombe

Committee stage
Wednesday 20th March 2024 Grand Committee

[Baroness Harding of Winscombe (Con)]

My Lords, in the nearly nine years that I have been in this House, I have often played the role of bag carrier to the noble Baroness, Lady Kidron, on this issue. In many ways, I am rather depressed that once again we need to make the case that children deserve a higher bar of protection than adults in the digital world. As the noble Baroness set out—I will not repeat it—the age-appropriate design code was a major landmark in establishing that you can regulate the digital world just as you can the physical world. What is more, it is rather joyful that when you do, these extraordinarily powerful tech companies change their products in the way that you want them to.

This is extremely hard-fought ground that we must not lose. It takes us to what feels like a familiar refrain from the Online Safety Act and the Digital Markets, Competition and Consumers Bill, which we are all still engaged in: the question of whether you need to write something in the Bill and whether, by doing so, you make it more clear or less clear.

Does my noble friend the Minister agree with the fundamental principle, enshrined in the Data Protection Act 2018, that children deserve a higher bar of protection in the online world and that children’s data needs to be protected at a much higher level? If we can all agree on that principle first, then the question is: how do we make sure that this Bill does not weaken the protection that children have?

I am trying to remember on which side of the “put it in the Bill or not” debate I have been during discussions on each of the digital Bills that we have all been working on over the last couple of years. We have a really vicious problem where, as I understand it, the Government keep insisting that the Bill does not water down data protection and therefore there is no need to write anything into it to protect children’s greater rights. On the other hand, I also hear that it will remove bureaucracy and save businesses a lot of money. I have certainly been in rooms over the last couple of years where business representatives have told me, not realising I was one of the original signatories to the amendment that created the age-appropriate design code, how dreadful it was because it made their lives much more complicated.

I have no doubt that if we create a sense—which is what it is—that companies do not need to do quite as much as they used to for children in this area, that sense will create, if not a wide-open door, an ajar door that enables businesses to walk through and take the path of least resistance, which is doing less to protect children. That is why, in this case, I come down on the side of wanting to put it explicitly in the Bill, in whatever wording my noble friend the Minister thinks appropriate, that we are really clear that this creates no change at all in the approach for children and children’s data.

That is what this group of amendments is about. I know that we will come back to a whole host of other areas where there is a risk that children’s data could be handled differently from the way envisaged in that hard-fought battle for the age-appropriate design code but, on this group alone, it would be helpful if my noble friend the Minister could help us establish that firm principle and commit to coming back with wording that will firmly establish it in the Bill.

[Lord Clement-Jones (LD)]

My Lords, I keep getting flashbacks. This one is to the Data Protection Act 2018, although I think it was 2017 when we debated it. It is one of the huge achievements of the noble Baroness, Lady Kidron, to have introduced, and persuaded the Government to introduce, the age-appropriate design code into the Act, and—as she and the noble Baroness, Lady Harding, described—to see it spread around the world and become the gold standard. It is hardly surprising that she is so passionate about wanting to make sure that the Bill does not water down the data rights of children.

I think the most powerful amendment in this group is Amendment 290. For me, it absolutely bottles what we need to do in making sure that nothing in the Bill waters down children’s rights. If I were to choose one of the noble Baroness’s amendments in this group, it would be that one: it would absolutely give the assurance and scotch the point about legal uncertainty created by the Bill.

Both noble Baronesses asked: if the Government are not watering down the Bill, why can they not say that they are not? Why can they not, in a sense, repeat the words of Paul Scully when he was debating the Bill? He said:

“We are committed to protecting children and young people online. The Bill maintains the high standards of data protection that our citizens expect and organisations will still have to abide by our age-appropriate design code”.


He uses “our”, so he is taking full ownership of it. He went on:

“Any breach of our data protection laws will result in enforcement action by the Information Commissioner’s Office”.—[Official Report, Commons, 17/4/23; col. 101.]


I would love that enshrined in the Bill. It would give us a huge amount of assurance.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, not to put too fine a point on it, the Minister is saying that nothing in the Bill diminishes children’s rights, whether in Clause 1, Clause 6 or the legitimate interest in Clause 5. He is saying that absolutely nothing in the Bill diminishes children’s rights in any way. Is that his position?

[Baroness Harding of Winscombe (Con)]

Can I add to that question? Is my noble friend the Minister also saying that there is no risk of companies misinterpreting the Bill’s intentions and assuming that this might be some form of diminution of the protections for children?

Digital Markets, Competition and Consumers Bill

Debate between Lord Clement-Jones and Baroness Harding of Winscombe

Committee stage
Monday 5th February 2024 Grand Committee

[Baroness Harding of Winscombe (Con)]

My Lords, I fear that sometimes it is not enough that everything on an issue has been said; we have to make sure that everyone has said everything that needs to be said. I will be extremely brief but, as I raised this at Second Reading, I lend my voice in support of my noble friend Lord Mendoza’s amendment.

Can the Minister straightforwardly assure us that it is not the Government’s intention to prevent charities being able to access gift aid on membership subscriptions? If he can make that assurance, I expect him, as does the noble Lord, Lord Harris, either to accept this amendment or explain to us the Government’s alternative cunning plan to achieve the goal that I hope everyone in the Committee has.

[Lord Clement-Jones (LD)]

My Lords, I cannot think of a better introduction to an amendment than the different speeches we have heard. I belong to many of the organisations that have been mentioned. We all have a personal interest in so many of the organisations that depend on subscriptions.

The noble Lord, Lord Mendoza, talked about the impact of the possible loss of gift aid; the noble Lord, Lord Harris, on the issue of why gift aid could be lost; the noble Lord, Lord Vaizey, about the importance of subscriptions going forward; and the noble Baroness, Lady Young, about the different kinds of relationship this represents. To round it off, the noble Baroness, Lady Harding, started to hold the Minister’s feet to the fire with the questions that need asking. This amendment has been comprehensively and extremely well spoken to.

We have all had the NCVO briefing, which has a galaxy of different organisations all making the point that the Government really need to create an exemption. This is a very elegant solution that I hope the Government will adopt but, as the noble Baroness, Lady Harding, said, the Government need to reassure us that this was not intended as part of the new subscription regime. I very much hope that, at this moment, the Minister and the department are cooking up a solution as good as the one that the noble Lord, Lord Mendoza, has put forward, or that they are simply going to accept this. In terms of the arguments made, this has been a slam dunk. I would have thought that accepting the amendment of the noble Lord, Lord Mendoza, is a total no-brainer, otherwise I can see Report stage being carnage.

Digital Markets, Competition and Consumers Bill

Debate between Lord Clement-Jones and Baroness Harding of Winscombe

Committee stage
Monday 29th January 2024 Grand Committee

[Baroness Harding of Winscombe (Con)]

My Lords, I promise I will speak briefly to associate myself with the remarks of my noble friend Lady Stowell and support her Amendment 77 and Amendment 76 in the name of the noble Viscount, Lord Colville.

Despite the fact that there are fewer of us here than there have been in the debates on some of the other quite contentious issues, this is an extremely important amendment and a really important principle that we need to change in the Bill. To be honest, I thought that the power granted to the Secretary of State here was so egregious that it had to have been inserted as part of a cunning concession strategy to distract us from some of the other more subtle increases in powers that were included in the other place. It is extremely dangerous, both politically and technocratically, to put an individual Secretary of State in this position. I challenge any serious parliamentarian or politician to want to put themselves in that place, as my noble friend Lady Stowell said.

On its own, granting the Secretary of State this power will expose them to an enormous amount of lobbying; it is absolutely a lobbyist’s charter. This is about transparency, as the noble Baroness, Lady Kidron, said, and parliamentary scrutiny, which we will come to properly in our debate on the next group of amendments. However, it is also about reducing the risk of lobbying from the world’s most powerful institutions that are not Governments.

For those reasons, I have a slight concern. In supporting Amendment 77, I do not want the Government or my noble friend the Minister to think that establishing parliamentary scrutiny while maintaining the Secretary of State’s powers would be a happy compromise. It would be absolutely the wrong place for us to be. We need to remove the Secretary of State’s powers over guidance and establish better parliamentary scrutiny.

[Lord Clement-Jones (LD)]

My Lords, it has been very interesting to listen to noble Lords on this amendment. I am getting a strong sense of déjà vu from our debates on the then Online Safety Bill.

The noble Viscount, Lord Colville, made a devastating case for the deletion of the Secretary of State’s power, and the noble Baroness, Lady Stowell, made a superb case for the inclusion of parliamentary oversight over the guidance. The fact is that, just as we argued in our debates on the then Online Safety Bill, there is far too much power for the Secretary of State in this Bill. This example is the most egregious, but there are so many other aspects that one could argue with, and have argued with—the noble Viscount reminded us of his earlier amendments—such as the conditions for an undertaking to have an SMS designation; the turnover condition; the permitted types of conduct requirements; the period during which the DMU must decide which terms to include in the final transaction under the final offer mechanism; the amount of penalties imposed by the DMU on individual undertakings; and the DMU’s statement of policy on penalties. That is a heck of a lot of different powers for the Secretary of State and, as I say, power over guidance is the most egregious of them.

The way in which the noble Baroness, Lady Stowell, expressed this was exactly right. We will come on to parliamentary scrutiny in our debate on the next group, but the word “accountability” is crucial. Of course the regulator should be independent but, at the same time, it should be accountable. This is not just a licence to roam beyond the bounds; it is the right and duty of Parliament to have oversight of the regulator, which is exactly what this amendment would provide for. You have only to look at the draft that was put together of the Overview of the CMA’s Provisional Approach to Implement the New Digital Markets Competition Regime to see just how broad the Secretary of State’s powers over the way in which the CMA carries out its functions will be. That is why this is such an important amendment.

I very much hope that the Minister will hear our voices. This is a really important area of the Bill. As the Minister can see, it is something about which, having had the experience of the then Online Safety Bill, we feel very exercised.

Online Safety Bill

Debate between Lord Clement-Jones and Baroness Harding of Winscombe

Report stage
Wednesday 19th July 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, I promise I will be brief. I, too, welcome what the Minister has said and the amendments that the Government have proposed. This is the full package which we have been seeking in a number of areas, so I am very pleased to see it. My noble friend Lady Newlove and the noble Baroness, Lady Kidron, are not in their places, but I know I speak for both of them in wanting to register that, although the thoughtful and slow-and-steady approach has some benefits, there also some real costs to it. The UK Safer Internet Centre estimates that there will be some 340,000 individuals in the UK who will have no recourse for action if the platforms complaints mechanism does not work for them in the next two years. That is quite a large number of people, so I have one very simple question for the Minister: if I have exhausted the complaints procedure with an existing platform in the next two years, where do I go? I cannot go to Ofcom. My noble friend Lord Grade was very clear in front of the committee I sit on that it is not Ofcom’s job. Where do I go if I have a complaint that I cannot get resolved in the next two years?

[Lord Clement-Jones (LD)]

My Lords, I declare an interest as chair of Trust Alliance Group, which operates the energy and communications ombudsman schemes, so I have a particular interest in the operation of these ADR schemes. I thank the Minister for the flexibility that he has shown in the provision about the report by Ofcom and in having backstop powers for the Secretary of State to introduce such a scheme.

Of course, I understand that the noble Baroness, Lady Newlove, and the UK Safer Internet Centre are very disappointed that this is not going to come into effect immediately, but there are advantages in not setting out the scheme at this very early point before we know what some of the issues arising are. I believe that Ofcom will definitely want to institute such a scheme, but it may be that, in the initial stages, working out the exact architecture is going to be necessary. Of course, I would have preferred to have a mandated scheme, in the sense that the report will look not at the “whether” but the “how”, but I believe that at the end of the day it will absolutely obvious that there needs to be such an ADR scheme in order to provide the kind of redress the noble Baroness, Lady Harding, was talking about.

I also agree with noble Baroness, Lady Morgan, that the kinds of complaints that this would cover should include fraudulent adverts. I very much hope that the Minister will be able to answer the questions that both noble Baronesses asked. As my noble friend said, will he reassure us that the department and Ofcom will not take their foot off the pedal, whatever the Bill may say?

Online Safety Bill

Debate between Lord Clement-Jones and Baroness Harding of Winscombe

Report stage
Monday 17th July 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, I will speak briefly on a couple of amendments and pick up from where the noble Lord, Lord Allan, just finished on Amendment 186A. I associate myself with all the comments that the noble Baroness, Lady Kidron, made on her Amendment 191A. As ever, she introduced the amendment so brilliantly that there is no need for me to add anything other than my wholehearted support.

I will briefly reference Amendment 253 from the noble Lord, Lord Clement-Jones. Both his amendment and my noble friend Lord Moylan’s point to one of the challenges about regulating the digital world, which is that it touches everything. We oscillate between wanting to compartmentalise the digital and recognising that it is interconnected to everything. That is the same challenge faced by every organisation that is trying to digitise: do you ring-fence or recognise that it touches everything? I am very supportive of the principles behind Amendment 253 precisely because, in the end, it does touch everything. It is hugely important that, even though this Bill and others still to come are creating an extraordinarily powerful single regulator in the form of Ofcom, we also recognise the interconnectivity of the regulatory landscape. The amendment is very well placed, and I hope my noble friend the Minister looks favourably on it and its heritage from the pre-legislative scrutiny committee.

I will briefly add my thoughts on Amendment 186A in this miscellaneous group. It feels very much as if we are having a Committee debate on this amendment, and I thank my noble friend Lord Moylan for introducing it. He raises a hugely important point, and I am incredibly sympathetic to the logic he set out.

In this area the digital world operates differently from the physical world, and we do not have the right balance at all between the powers of the big companies and consumer rights. I am completely with my noble friend in the spirit in which he introduced the amendment but, together with the noble Lord, Lord Allan, I think it would be better tackled in the Digital Markets, Competition and Consumers Bill, precisely because it is much broader than online safety. This fundamentally touches the issue of consumer rights in the digital world and I am worried that, if we are not careful, we will do something with the very best intentions that actually makes things slightly worse.

I worry that the terms and conditions of user-to-user services are incomprehensible to consumers today. Enshrining it as a contract in law might, in some cases, make it worse. Today, when user-to-user services have used our data for something, they are keen to tell us that we agreed to it because it was in their terms of service. My noble friend opens up a really important issue to which we should give proper attention when the Digital Markets, Competition and Consumers Bill arrives in the House. It is genuinely not too late to address that, as it is working its way through the Commons now. I thank my noble friend for introducing the amendment, because we should all have thought of the issue earlier, but it is much broader than online safety.

[Lord Clement-Jones (LD)]

My Lords, even by previous standards, this is the most miscellaneous of miscellaneous groups. We have ranged very broadly. I will speak first to Amendment 191A from the noble Baroness, Lady Kidron, which was so well spoken to by her and by the noble Baroness, Lady Harding. It is common sense, and my noble friend Lord Allan, as ever, put his finger on it: it is not as if coroners are going to come across this every day of the week; they need this kind of guidance. The Minister has introduced his amendments on this, and we need to reduce those to an understandable code for coroners and bereaved parents. I defy anybody, apart from about three Members of this House, to describe in any detail how the information notices will interlock and operate. I could probably name those Members off the top of my head. That demonstrates why we need such a code of practice. It speaks for itself.

I am hugely sympathetic to Amendment 275A in the name of the noble Baroness, Lady Finlay, who asked a series of important questions. The Minister said at col. 1773 that he would follow up with further information on the responsibility of private providers for their content. This is a real, live issue. The noble Baroness, Lady Kidron, put it right: we hope fervently that the Bill covers the issue. I do not know how many debates about future-proofing we have had on the Bill but each time, including in that last debate, we have not quite been reassured enough that we are covering the metaverse and provider content in the way we should be. I hope that this time the Minister can give us definitive chapter and verse that will help to settle the horses, so to speak, because that is exactly what the very good amendment in the name of the noble Baroness, Lady Finlay, was about.

Online Safety Bill

Debate between Lord Clement-Jones and Baroness Harding of Winscombe

Report stage
Monday 10th July 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, given the hour, I will be brief. I wanted to thank my noble friend the Minister and the Secretary of State, and to congratulate my friend the noble Baroness, Lady Kidron, on such an important group. It is late at night and not many of us are left in the Chamber, but this is an important thing that they have succeeded in doing together, and it is important that we mark that. It is also a hugely important thing that the bereaved families for justice have achieved, and I hope that they have achieved a modicum of calm from having made such a big difference for future families.

I will make one substantive point, referencing where my noble friend the Minister talked about future Bills. In this House and in this generation, we are building the legal scaffolding for a digital world that already exists. The noble Lord, Lord Allan of Hallam, referenced the fact that much of this was built without much thought—not maliciously but just without thinking about the real world, life and death. In Committee, I was taken by the noble Lord, Lord Knight, mentioning the intriguing possibility of using the Data Protection and Digital Information Bill to discuss data rights and to go beyond the dreadful circumstances that these amendments cover to make the passing on of your digital assets something that is a normal part of our life and death. So I feel that this is the beginning of a series of discussions, not the end.

I hope that my noble friend the Minister and whichever of his and my colleagues picks up the brief for the forthcoming Bill can take to heart how we have developed all this together. I know that today has perhaps not been our most wholly collaborative day, but, in general, I think we all feel that the Bill is so much the better for the collaborative nature that we have all brought to it, and on no more important a topic than this amendment.

[Lord Clement-Jones (LD)]

My Lords, I will be extremely brief. We have come a very long way since the Joint Committee made its recommendations to the Government, largely, I think, as a result of the noble Baroness, Lady Kidron. I keep mistakenly calling her “Baroness Beeban”; familiarity breeds formality, or something.

I thank the Minister and the Secretary of State for what they have done, and the bereaved families for having identified these issues. My noble friend Lord Allan rightly identified the sentiments as grief and anger at what has transpired. All we can do is try to do, in a small way, what we can to redress the harm that has already been done. I was really interested in his insights into how a platform will respond and how this will help them through the process of legal order and data protection issues with a public authority.

My main question to the Minister is in that context—the relationship with the Information Commissioner’s Office—because there are issues here. There is, if you like, an overlap of jurisdiction with the ICO, because the potential or actual disclosure of personal data is involved, and therefore there will necessarily have to be co-operation between the ICO and Ofcom to ensure the most effective regulatory response. I do not know whether that has emerged on the Minister’s radar, but it certainly has emerged on the ICO’s radar. Indeed, in the ideal world, there probably should be some sort of consultation requirement on Ofcom to co-operate with the Information Commissioner in these circumstances. Anything that the Minister can say on that would be very helpful.

Again, this is all about reassurance. We must make sure that we have absolutely nailed down all the data protection issues involved in the very creative way the Government have responded to the requests of the bereaved families so notably championed by the noble Baroness, Lady Kidron.

Online Safety Bill

Debate between Lord Clement-Jones and Baroness Harding of Winscombe

Committee stage
Thursday 22nd June 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, I, too, support Amendments 233 and 234, and Amendment 233A, from the noble Lord, Lord Allan. As the noble Baroness, Lady Kidron, said, it has been made clear in the past 10 days of Committee that there is a role for every part of society to play to make sure that we see the benefits of the digital world but also mitigate the potential harms. The role that researchers and academics can play in helping us understand how the digital world operates is critical—and that is going to get ever more so as we enter a world of large language models and AI. Access to data in order to understand how digital systems and processes work will become even more important—next week, not just in 10 years’ time.

My noble friend Lord Bethell quite rightly pointed out the parallels with other regulators, such as the MHRA and the Bank of England. A number of people are now comparing the way in which the MHRA and other medical regulators regulate the development of drugs with how we ought to think about the emergence of regulation for AI. This is a very good read-across: we need to set the rules of the road for researchers and ensure, as the noble Baroness, Lady Kidron, said—nailing it, as usual—that we have the most transparent system possible, enabling people to conduct their research in the light, not in the grey zone.

[Lord Clement-Jones (LD)]

My Lords, as the noble Baroness, Lady Kidron, said, clearly, transparency is absolutely one of the crucial elements of the Bill. Indeed, it was another important aspect of the Joint Committee’s report. Like the noble Lord, Lord Knight—a fellow traveller on the committee—and many other noble Lords, I much prefer the reach of Amendments 233 and 234, tabled by the noble Lord, Lord Bethell, to Amendment 230, the lead amendment in this group.

We strongly support amendments that aim to introduce a duty for regulated platforms to enable access by approved independent researchers to information and data from regulated services, under certain conditions. Of course, there are arguments for speeding up the process under Clause 146, but this is really important because companies themselves currently decide who accesses data, how much of it and for what purposes. Only the companies can see the full picture, and the effect of this is that it has taken years to build a really solid case for this Online Safety Bill. Without a greater level of insight, enabling quality research and harm analysis, policy-making and regulatory innovation will not move forward.

I was very much taken by what the noble Baroness, Lady Harding, had to say about the future in terms of the speeding up of technological developments in AI, which inevitably will make the opening up of data, and research into it, of greater and greater importance. Of course, I also take extremely seriously my noble friend’s points about the need for data protection. We are very cognisant of the lessons of Cambridge Analytica, as he mentioned.

It is always worth reading the columns of the noble Lord, Lord Hague. He highlighted this issue last December, in the Times. He said:

“Social media companies should be required to make anonymised data available to third-party researchers to study the effect of their policies. Crucially, the algorithms that determine what you see—the news you are fed, the videos you are shown, the people you meet on a website—should not only be revealed to regulators but the choices made in crafting them should then be open to public scrutiny and debate”.


Those were very wise words. The status quo leaves transparency in the hands of big tech companies with a vested interest in opacity. The noble Lord, Lord Knight, mentioned Twitter announcing in February that it would cease allowing free research access to its application programming interface. It is on a whim that a billionaire owner can decide to deny access to researchers.

I much prefer Amendment 233, which would enable Ofcom to appoint an approved independent researcher. The Ofcom code of practice proposed in Amendment 234 would be issued for researchers and platforms, setting out the procedures for enabling access to data. I take the point made by the noble Baroness, Lady Fox, about who should be an independent accredited researcher, but I hope that that is exactly the kind of thing that a code of practice would deal with.

Just as a little contrast, Article 40 of the EU’s Digital Services Act gives access to data to a broad range of researchers—this has been mentioned previously—including civil society and non-profit organisations dedicated to public interest research. The DSA sets out in detail the framework for vetting and access procedures, creating an explicit role for new independent supervisory authorities. This is an example that we could easily follow.

The noble Lord, Lord Bethell, mentioned the whole question of skilled persons. Like him, I do not believe that this measure is adequate as a substitute for what is contained in Amendments 233 and 234. It will be a useful tool for Ofcom to access external expertise on a case-by-case basis but it will not provide for what might be described as a wider ecosystem of inspection and analysis.

The noble Lord also mentioned the fact that internet companies should not regard themselves as an exception. Independent scrutiny is a cornerstone of the pharmaceutical, car, oil, gas and finance industries. They are open to scrutiny from research; we should expect that for social media as well. Independent researchers are already given access in many other circumstances.

The case for these amendments has been made extremely well. I very much hope to see the Government, with the much more open approach that they are demonstrating today, accept the value of these amendments.

Online Safety Bill

Debate between Lord Clement-Jones and Baroness Harding of Winscombe

Committee stage
Thursday 22nd June 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, I support this group of amendments. I pay tribute to the families who I see are watching us as we debate this important group. I also pay tribute to my noble friend Lady Newlove, who has just given one of the most powerful speeches in the full 10 days of Committee.

The real sadness is that we are debating what happens when things go horribly wrong. I thank my noble friend the Minister and the Secretary of State, who is currently on leave, for the very collaborative way in which I know they have approached trying to find the right package—we are all waiting for him to stand up and speak to show us this. Very often, Governments do not want to give concessions early in the process of a Bill going through because they worry that those of us campaigning for concessions will then ask for more. In this case, as the noble Lord, Lord Russell, has just pointed to, all we are asking for in this Bill is to remember that a concession granted here helps only when things have gone horribly wrong.

As the noble Baroness, Lady Kidron, said, what we really want is a safer internet, where fewer children die. I reiterate the comments that she made at the end of her speech: as we have gone through Committee, we have all learned how interconnected the Bill is. It is fantastic that we will be able to put changes into it that will enable bereaved families not to have to follow the path that the Russells and all the other bereaved families campaigning for this had to follow—but that will not be enough. We also need to ensure that we put in place the safety-by-design amendments that we have been discussing. I argue that one of the most important is the one that the noble Lord, Lord Russell, has just referenced: when you already know that your child is in trouble but you cannot get help, unfortunately no one wants then to be able to say, “It’s okay. Bereaved families have what they need”. We need to do more than that.

[Lord Clement-Jones (LD)]

My Lords, this has been a very moving debate for a very important cause. I thank the noble Baroness, Lady Kidron, for introducing it in the way that she did, along with those who have spoken in the debate.

The good news is that this is very much a cross-party and cross-Bench debate. It clearly appears to be a concern that the Government share, and I appreciate that. I agree with the noble Baroness, Lady Harding, that it is not a weakness for the Government to concede here but very much the logic of where we have now got to. Compared with what is in the Joint Committee report on the draft Bill, what seems to be proposed—and I very much look forward to hearing what the Minister has to say—goes further than what we were proposing, so it may be that we have reached another milestone. However, we wait to hear the detail.

Like other noble Lords, I pay tribute to the bereaved parents. We heard from parents during our consideration of the draft Online Safety Bill and we have heard further since then, particularly as a result of the two notable inquests into the deaths of Frankie Thomas and Molly Russell, which highlighted the difficulties that families and coroners face. Both families talked about the additional toll on their mental health as they battle for information, and the impossibility of finding closure in the absence of answers.

The noble Baroness, Lady Newlove, said in her very moving speech that a humane process must be established for bereaved families and coroners to access data pertinent to the death of a child. That is what we have been seeking, and I pay tribute to the relentless way in which the noble Baroness, Lady Kidron, has pursued this issue on behalf of us all, supported by 5Rights and the NSPCC. We must have a transparent process in which bereaved families and coroners can access information from regulated services in cases where social media may have played a part in the death of a child.

My noble friend Lord Allan—who I am delighted is so plugged in to what could be the practical way of solving some of these issues—expertly described how Ofcom’s powers could and should be used and harnessed for this purpose. That very much goes with the grain of the Bill.

I shall repeat a phrase that the noble Baroness, Lady Kidron, used: the current situation is immoral and a failure of justice. We absolutely need to keep that in mind as we keep ourselves motivated to find the solution as soon as we possibly can. I look forward to good news from the Minister about the use of information notices for the purpose that has been heralded by the noble Baroness, Lady Kidron, but of course the devil is in the detail. We will obviously want to see the detail of the amendment well before Report.

Online Safety Bill

Debate between Lord Clement-Jones and Baroness Harding of Winscombe

Committee stage
Tuesday 9th May 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, I too will be very brief. As a member of the Communications and Digital Committee, I just wanted to speak in support of my noble friend Lady Stowell of Beeston and her extremely powerful speech, which seems like it was quite a long time ago now, but it was not that long. I want to highlight two things. I do not understand how, as a number of noble Lords have said, having risk assessments is a threat to freedom of expression. I think the absolute opposite is the case. They would enhance all the things the noble Baroness, Lady Fox, is looking to see in the Bill, just as much as they would enhance the protections that my noble friend, who I always seem to follow in this debate, is looking for.

Like my noble friend, I ask the Minister: why not? When the Government announced the removal of legal but harmful and the creation of user empowerment tools, I remember thinking—in the midst of being quite busy with Covid—“What are user empowerment tools and what are they going to empower me to do?” Without a risk assessment, I do not know how we answer that question. The risk is that we are throwing that question straight to the tech companies to decide for themselves. A risk assessment provides the framework that would enable user empowerment tools to do what I think the Government intend.

Finally, I too will speak against my noble friend Lord Moylan’s Amendment 294 on psychological harm. It is well documented that tech platforms are designed to drive addiction. Addiction can be physiological and psychological. We ignore that at our peril.

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to have been part of this debate and to have heard how much we are on common ground. I very much hope that, in particular, the Minister will have listened to the voices on the Conservative Benches that have very powerfully put forward a number of amendments that I think have gained general acceptance across the Committee.

I fully understand the points that the noble Lord, Lord Black, made and why he defends Clause 14. I hope we can have a more granular discussion about the contents of that clause rather than wrap it up on this group of amendments. I do not know whether we will be able to have that on the next group.

I thank the noble Baroness, Lady Stowell, for putting forward her amendment. It is very interesting, as the noble Baronesses, Lady Bull and Lady Fraser, said, that we are trying to get to the same sort of mechanisms of risk assessment, perhaps out of different motives, but we are broadly along the same lines and want to see them for adult services. We want to know from the Minister why we cannot achieve that, basically. I am sure we could come to some agreement between us as to whether user empowerment tools or terms of service are the most appropriate way of doing it.

We need to thank the committee that the noble Baroness chairs for having followed up on the letter to the Secretary of State for DCMS, as was, on 30 January. It is good to see a Select Committee using its influence to go forward in this way.

The amendments tabled by the noble Lord, Lord Kamall, and supported by my noble friend Lady Featherstone—I am sorry she is unable to be here today, as he said—are important. They would broaden out consideration in exactly the right kind of way.

However, dare I say it, probably the most important amendment in this group is Amendment 48 in the name of the noble Lord, Lord Stevenson. Apart from the Clause 14 stand part notice, it is pretty much bang on where the Joint Committee got to. He was remarkably tactful in not going into any detail on the Government’s response to that committee. I will not read it out because of the lateness of the hour, but the noble Viscount, Lord Colville, got pretty close to puncturing the Government’s case that there is no proper definition of public interest. It is quite clear that there is a perfectly respectable definition in the Human Rights Act 1998 and, as the noble Viscount said, in the Defamation Act 2013, which would be quite fit for purpose. I do not quite know why the Government responded as they did at paragraph 251. I very much hope that the Minister will have another look at that.

The amendment from the noble and learned Lord, Lord Hope, which has the very respectable support of Justice, is also entirely apposite. I very much hope that the Government will take a good look at that.

Finally, and extraordinarily, I have quite a lot of sympathy with the amendments from the noble Lord, Lord Moylan. It was all going so well until we got to Amendment 294; up to that point I think he had support from across the House, because placing that kind of duty on Ofcom would be a positive way forward.

As I say, getting a clause of the kind that the noble Lord, Lord Stevenson, has put forward, with that public interest content point and with an umbrella duty on freedom of expression, allied to the definition from the noble and learned Lord, Lord Hope, would really get us somewhere.

Online Safety Bill

Debate between Lord Clement-Jones and Baroness Harding of Winscombe

Committee stage
Tuesday 9th May 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, I had not intended to speak in this debate because I now need to declare an unusual interest, in that Amendment 38A has been widely supported outside this Chamber by my husband, the Member of Parliament for Weston-super-Mare. I am not intending to speak on that amendment but, none the less, I mention it just in case.

I rise to speak because I have been so moved by the speeches, not least the right reverend Prelate’s speech. I would like just to briefly address the “default on” amendments and add my support. Like others, on balance I favour the amendments in the name of the noble Lord, Lord Clement-Jones, but would willingly throw my support behind my noble friend Lady Morgan were that the preferred choice in the Chamber.

I would like to simply add two additional reasons why I ask my noble friend the Minister to really reflect hard on this debate. The first is that children become teenagers, who become young adults, and it is a gradual transition—goodness, do I feel it as the mother of a 16 year-old and a 17 year-old. The idea that on one day all the protections just disappear completely and we require our 18 year-olds to immediately reconfigure their use of all digital tools just does not seem a sensible transition to adulthood to me, whereas the ability to switch off user empowerment tools as you mature as an adult seems a very sensible transition.

Secondly, I respect very much the free speech arguments that the noble Baroness, Lady Fox, made but I do not think this is a debate about the importance of free speech. It is actually about how effective the user empowerment tools are. If they are so hard for non-vulnerable adults to turn off, what hope have vulnerable adults to be able to turn them on? For the triple shield to work and the three-legged stool to be effective, the onus needs to be on the tech companies to make these user empowerment tools really easy to turn on and turn off. Then “default on” is not a restriction on freedom of speech at all; it is simply a means of protecting our most vulnerable.

[Lord Clement-Jones (LD)]

My Lords, this has been a very thoughtful and thought-provoking debate. I start very much from the point of view expressed by the noble Baroness, Lady Kidron, and this brings the noble Baroness, Lady Buscombe, into agreement—it is not about the content; this is about features. The noble Baroness, Lady Harding, made exactly the same point, as did the noble Baroness, Lady Healy—this is not about restriction on freedom of speech but about a design feature in the Bill which is of crucial importance.

When I was putting together the two amendments that I have tabled, I was very much taken by what Parent Zone said in a recent paper. It described user empowerment tools as “a false hope”, and rightly had a number of concerns about undue reliance on tools. It said:

“There is a real danger of users being overwhelmed and bewildered”.


It goes on to say that

“tools cannot do all the work, because so many other factors are in play—parental styles, media literacy and technological confidence, different levels of vulnerability and, crucially, trust”.

The real question—this is why I thought we should look at it from the other side of things in terms of default—is about how we mandate the use of these user empowerment tools in the Bill for both children and adults. In a sense, my concerns are exactly the opposite of those of the noble Baroness, Lady Fox—for some strange, unaccountable reason.

The noble Baroness, Lady Morgan, the noble Lord, Lord Griffiths, the right reverend Prelate and, notably, my noble friend Lady Parminter have made a brilliant case for their amendment, and it is notable that these amendments are supported by a massive range of organisations. They are all in this area of vulnerable adults: the Mental Health Foundation, Mind, the eating disorder charity Beat, the Royal College of Psychiatrists, the British Psychological Society, Rethink Mental Illness, Mental Health UK, and so on. It is not a coincidence that all these organisations are discussing this “feature”. This is a crucial aspect of the Bill.

Again, I was very much taken by some of the descriptions used by noble Lords during the debate. The right reverend Prelate the Bishop of Oxford said that young people do not suddenly become impervious to content when they reach 18, and he particularly described the pressures as the use of AI only increases. I thought the way the noble Baroness, Lady Harding, described the progression from teenagehood to adulthood was extremely important. There is not some sort of point where somebody suddenly reaches the age of 18 and has full adulthood which enables then to deal with all this content.

Under the Bill as it stands, adult users could still see and be served some of the most dangerous content online. As we have heard, this includes pro-suicide, pro-anorexia and pro-bulimia content. One has only to listen to what my noble friend Lady Parminter had to say to really be affected by the operation, if you like, of social media in those circumstances. This is all about the vulnerable. Of course, we know that anorexia has the highest mortality rate of any mental health problem; the NHS is struggling to provide specialist treatment to those who need it. Meanwhile, suicide and self-harm-related content remains common and is repeatedly implicated in deaths. All Members here who were members of the Joint Committee remember the evidence of Ian Russell about his daughter Molly. I think that affected us all hugely.

We believe now you can pay your money and take your choice of whichever amendment seems appropriate. Changing the user empowerment provisions to require category 1 providers to have either the safest options as default for users or the terms of my two amendments is surely a straightforward way of protecting the vast majority of internet users who do not want this material served to them.

You could argue that the new offence of encouragement to serious self-harm, which the Government have committed to introducing, might form part of the solution here, but you cannot criminalise all the legal content that treads the line between glorification and outright encouragement. Of course, we know the way the Bill has been changed. No similar power is proposed, for instance, to address eating disorder content.

The noble Baroness, Lady Healy, quoted our own Communications and Digital Committee and its recommendations about a comprehensive toolkit of settings overseen by Ofcom, allowing users to decide what types of content they see and from whom. I am very supportive of Amendment 38A from the noble Lord, Lord Knight, which gives a greater degree of granularity about the kind of user, in a sense, that can communicate to users.

Modesty means that of course I prefer my own amendments and I agree with the noble Baronesses, Lady Fraser, Lady Bull and Lady Harding, and I am very grateful for their support. But we are all heading in the same direction. We are all arguing for a broader “by default” approach. The onus should not be on these vulnerable adults in particular to switch them on, as the noble Baroness, Lady Bull, said. It is all about those vulnerable adults and we must, as my noble friend Lady Burt, said, have their best interests at heart, and that is why we have tabled these amendments.

Online Safety Bill

Debate between Lord Clement-Jones and Baroness Harding of Winscombe

Committee stage
Tuesday 25th April 2023 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, earlier today the noble Baroness, Lady Benjamin, referred to a group of us as kindred spirits. I suggest that all of us contributing to this debate are kindred spirits in our desire to see consistent outcomes. All of us would like to see a world where our children never see pornography on any digital platform, regardless of what type of service it is. At the risk of incurring the ire of my noble friend Lord Moylan, we should have zero tolerance for children seeing and accessing pornography.

I agree with the desire to be consistent, as the noble Baroness, Lady Ritchie, and the noble Lord, Lord Browne, said, but it is consistency in outcomes that we should focus on. I am very taken with the point made by the noble Lord, Lord Allan, that we must be very careful about the unintended consequences of a consistent regulatory approach that might end up with inconsistent outcomes.

When we get to it later—I am not sure when—I want to see a regulatory regime that is more like the one reflected in the amendments tabled by the noble Baroness, Lady Kidron, and my noble friend Lord Bethell. We need in the Bill a very clear definition of what age assurance and age verification are. We must be specific on the timing of introducing the regulatory constraints on pornography. We have all waited far too long for that to happen and that must be in the Bill.

I am nervous of these amendments that we are debating now because I fear other unintended consequences. Not only does this not incentivise general providers, as the noble Lord, Lord Allan, described them, to remove porn from their sites but I fear that it incentivises them to remove children from their sites. That is the real issue with Twitter. Twitter has very few child users; I do not want to live in a world where our children are removed from general internet services because we have not put hard age gates on the pornographic content within them but instead encouraged those services to put an age gate on the front door. Just as the noble Lord, Lord Allan, said earlier today, I fear that, with all the best intentions, the desire to have consistent outcomes and these current amendments would regulate the high street rather than the porn itself.

[Lord Clement-Jones (LD)]

My Lords, there is absolutely no doubt that across the Committee we all have the same intent; how we get there is the issue between us. It is probably about the construction of the Bill, rather than the duties that we are imposing.

It is a pleasure again to follow the noble Baroness, Lady Harding. If you take what my noble friend Lord Allan said about a graduated response and consistent outcomes, you then get effective regulation.

I thought that the noble Baroness, Lady Kidron, had it right. If we passed her amendments in the second group, and included the words “likely to be accessed”, Clause 11 would bite and we would find that there was consistency of outcomes for primary priority content and so on, and we would then find ourselves in much the same space. However, it depends on the primary purpose. The fear that we have is this. I would not want to see a Part 5 service that adds user-generated content then falling outside Part 5 and finding itself under Part 3, with a different set of duties.

I do not see a huge difference between Part 3 and Part 5, and it will be very interesting when we come to debate the later amendments tabled by the noble Lord, Lord Bethell, and the noble Baroness, Lady Kidron. Again, why do we not group these things together to have a sensible debate? We seem to be chunking-up things in a different way and so will have to come back to this and repeat some of what we have said. However, I look forward to the debate on those amendments, which may be a much more effective way of dealing with this than trying to marry Part 5 and Part 3.

I understand entirely the motives of the noble Baroness, Lady Ritchie, and that we want to ensure that we capture this. However, it must be the appropriate way of regulating and the appropriate way of capturing it. I like the language about consistent outcomes without unintended consequences.