Film Industry

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Thursday 10th October 2024 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this is my first chance—with a bit more time on the clock than we have at Questions, and certainly than we had for our heavily subscribed Question for Short Debate on libraries—properly to welcome the noble Baroness, Lady Twycross, to her place. I know that she has a busy time, speaking both for DCMS and for the Cabinet Office, but she has an excellent team around her, and I look forward to our exchanges on what I am sure she will agree is the far more interesting half of that deal, representing sectors that are a fast-growing part of the economy and enrich our lives in so many ways.

It is in that spirit that I welcome the Statement she has just repeated, but your Lordships might well expect me to, because it is simply confirming a policy that the Conservative Government announced in March. The statutory instrument that the Secretary of State trumpeted yesterday puts into effect the extra support for the independent film sector that my right honourable friend Jeremy Hunt brought in at the Budget this spring. I looked at the press release put out by the Minister’s department but, curiously, I could find no mention of that. Will she start by acknowledging the important role played by Jeremy Hunt, and, indeed, by Lucy Frazer, the former Secretary of State, in winning the argument at His Majesty’s Treasury for this dynamic tax stimulus?

The announcement that we made in March followed months of careful work with brilliant organisations from across the sector, such as Pact and the British Film Institute, and was welcomed by industry titans such as Sir Christopher Nolan, Barbara Broccoli, Sir Steve McQueen and that great Geordie, Sir Ridley Scott. At the time, the BFI described it as

“a game changer for UK filmmakers”

and British storytelling, and

“the most significant policy intervention since the 1990s”.

So the Government’s Statement this week is not so much an original production as a remake of a previous hit. If it were a film, my right honourable friends would surely appear in the credits, at least. Will the Minister give them the acknowledgement that they deserve when she stands up again?

Perhaps she can also tell us a little more about the timing of this Statement. I am very glad that the Government are supporting the London Film Festival; it is an incredible showcase for the brilliant film-making talent that we see on display right across the United Kingdom. That is why the last Conservative Government provided £1.7 million of support for this year’s festival through our creative industries sector vision, announced back in June 2023.

However, if the Secretary of State is going to be governing by gimmick and announcing fiscal policies based on the red-carpet events that she is invited to, would she also recognise that this week marks the start of Frieze London, one of the world’s most influential art fairs? The art world is waiting to see whether the Government will continue the museums and galleries exhibition tax relief at the extended rate and scrapping the sunset clause, as we committed to in the Budget in March? If the Government are recycling good news for the film sector, can the Minister put the art world out of its misery by confirming that today, too?

Every single evening, across the country, people are benefiting from brilliant new productions supported by the theatre tax relief, and astounding concerts supported by the orchestra tax relief. In the Budget in March, we announced that we would keep those at the extended rate permanently. Is the Minister able to give those vital sectors the certainty that they need to be able to continue programming excellent new plays and concerts? If not, why has her department chosen to give just one part of the creative industries special treatment ahead of October’s fiscal event?

But even the film sector is waiting for answers from our new Government in other areas. In another place yesterday, Dame Caroline Dinenage, the chair of the Select Committee, asked when the Government expect to confirm the introduction of the visual effects tax credits. These were also announced in the Budget in March and have been consulted on, and they are desperately needed and urgent. The Secretary of State was unable to give a clear answer in another place yesterday—perhaps the Minister can give your Lordships more information today.

My right honourable friend Sir John Whittingdale highlighted another area where clarity is needed from the noble Baroness’s department. He pointed out that investment in the film industry—and, indeed, across our creative industries—depends on confidence and certainty, not least in the copyright protection regime. He asked the Secretary of State to make it clear that the Government do not intend to extend copyright exceptions to text and data mining, which would damage both the creative and publishing industries massively. The Secretary of State was not able to give him a clear answer yesterday; perhaps the Minister can fill in the gaps today.

Sadly, this is becoming a bit of a picture from our new Government: failing to come up with answers to the big questions that they have had 14 years to think about, and failing to come forward with any new ideas of their own. We have not yet had 100 days of this Government, which is strange because, with all their miserable announcements, their descent into sleaze and the sacking of the Prime Minister’s chief of staff to try to signal a reset in Downing Street, it certainly feels like longer. But all they seem to be able to do is recycle Conservative policies. I welcome this Statement and I look forward to the introduction of the football governance Bill, which is another goal that we kindly set up for them. But I have to ask: when do they plan to start governing on their own?

[Lord Clement-Jones (LD)]

My Lords, I hope to strike a rather more positive note. I thank the Minister for repeating the Statement. On these Benches, as we did in the Commons, we welcome all the elements of the Statement; it is a really excellent way of marking the London Film Festival.

The confirmation of the IFTC is very welcome. On these Benches we are huge champions of the creative industries and we absolutely share the ambitions for the sector that the Minister has set out. Our film industry, particularly the independent sector—I pay tribute to PACT and the indefatigable CEO, John McVay— is dealing with a wide range of disruptive changes, from recovery from the pandemic to the rise of streaming platforms and AI.

The confirmation of the IFTC is a welcome first step, but we must also consider international competition. We have seen in the last week that the Irish Government have announced their own boosted tax incentive of 40% for films budgeted under €20 million. In that light, does the Minister consider that this level of tax relief goes far enough? As the Minister will have found, while giving support on these Benches, we always want even more ambition from the Government.

Another key issue that the industry is dealing with is that of a scarcity of skills. Inward investment in the film industry is very welcome, but the boom has also caused skills gaps and shortages for independent films, as the highly paid jobs in large productions are more attractive. This has created a destabilising and precarious production landscape in which smaller productions are struggling to hire the necessary talent to make a successful production. So will the Government address the skills deficit in the creative industries, including replacing the apprenticeship levy with a more flexible training and skills levy to suit the needs of the creative industries and increase take-up? Can the Minister confirm that we will soon see a full reform of the apprenticeship levy, and that she is confident that the reform will suit the needs of the creative industries?

In the context of skills, I welcome the plans put forward for the Marlow film studio site and the Government’s announcement in that respect. This grey-belt site is exactly the kind of location where we should be focusing growth and development. As a party, we support the proposal nationally and locally; the training and skills elements contained in the proposal are particularly welcome.

According to Creative UK, over 70% of creative businesses report not having enough finance. Today’s announcement will be helpful news for the film industry, but what steps are the Government taking to ensure that our creative industries more broadly can access the finance that they need to flourish? What steps, for instance, will the Government take to protect our independent television production companies, many of which are facing similar issues from the rise of streamers to competition from elsewhere in Europe? We need to establish creative enterprise zones beyond London to grow and regenerate the cultural output of areas across the UK. What are the Government’s plans for these?

Finally, Feryal Clark, the new Minister for AI and Digital Government, recently announced that she expects to resolve copyright disputes between British AI companies and the creative industries

“by the end of the year”,

saying that she wants to

“bring clarity to both the AI sector and also to creative industries”.

Does this mean that the Government plan to bring back a new text and data mining exception of the kind that was backed by the Pro-innovation Regulation of Technologies Review: Digital Technologies, from the noble Lord, Lord Vallance, or will they affirm, as they should, the rights of copyright holders such as film makers, faced with the ingestion of their material, or the performing rights of actors, artists and other creatives, and the need for licences to be taken by large language models? What consultations are the Government engaging in in this rather narrow timescale?

Digital Markets, Competition and Consumers Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Report stage
Wednesday 13th March 2024 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

The provisions we will bring forward at Third Reading will relate to newspapers and periodical news magazines, as I have set out. It will not cover television and radio broadcasters at this time, but that is something we will continue to consider. We have already been considering it as part of our broader work on the media mergers regime. That work will continue. I am happy to speak with my noble friend Lord Lansley and others about it.

[Lord Clement-Jones (LD)]

Could the noble Lord go through again what will happen to an existing merger, which is subject to existing procedure? He seemed to be saying that, as soon the new provision comes in when the Bill passes, it will be subject to the new procedure as well as the old. Is that what he was saying, and how will that work?

[Lord Parkinson of Whitley Bay (Con)]

That is what I was saying, but it depends on when the Bill gets Royal Assent. That is in the hands of noble Lords and not just the Government. If any live case is still ongoing at the time of Royal Assent—we intend for the new provisions to come into effect at Royal Assent—then the Secretary of State will obviously follow the provisions as set out in other Acts of Parliament as decided by Parliament previously, and follow the law as enacted after Royal Assent.

[Lord Clement-Jones (LD)]

I have a second question. I am assuming that internet digital news media—not a newspaper—will not be covered by these provisions.

[Lord Parkinson of Whitley Bay (Con)]

No. I am grateful that we have separated the debate on the noble Lord’s previous amendment from this so that I can respond directly to the amendment brought by my noble friend Lady Stowell. I am grateful for his understanding of that.

The Government are focused on the reforms to media ownership rules, which were suggested in Ofcom’s 2021 review. It did not recommend that online inter- mediaries, including social media platforms, search and video/audio-on-demand services should fall in scope of that. I heard what the noble Lord said about having this debate in the Media Bill, and I look forward to doing so.

The secondary legislation provisions that I have outlined will be subject to the affirmative procedure in Parliament. Until such time as those regulations are laid and approved by Parliament, the whole regime applies to everybody caught by the general foreign state prohibition.

We have always believed that the trustworthiness of our news and the lack of government interference in it, whether domestic or foreign, is of paramount importance, which is why we are setting out today our plan to make that more explicit in the regulatory regime that exists. As my noble friend Lady Stowell is aware, work is already under way to update the media mergers regime more broadly, and I touched on that in my responses to noble Lords. We will continue to take that work forward. I hope that, on that basis, my noble friend is able to withdraw her amendment today. With renewed thanks to her and a renewed commitment to work with those who have supported her, I am grateful for the opportunity to speak today.

Online Safety Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Consideration of Commons amendments
Tuesday 19th September 2023 Lords Chamber

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

My Lords, I beg to move Motion A and, with the leave of the House, I shall also speak to Motions B to H.

I am pleased to say that the amendments made in your Lordships’ House to strengthen the Bill’s provisions were accepted in another place. His Majesty’s Government presented a number of amendments in lieu of changes proposed by noble Lords, which are before your Lordships today.

I am grateful to my noble friend Lady Morgan of Cotes for her continued engagement on the issue of small but high-risk platforms. The Government were happy to accept her proposed changes to the rules for determining the conditions that establish which services will be designated as category 1 or 2B services. In making the regulations, the Secretary of State will now have the discretion to decide whether to set a threshold based on either the number of users or the functionalities offered, or on both factors. Previously, the threshold had to be based on a combination of both.

It remains the expectation that services will be designated as category 1 services only where it is appropriate to do so, to ensure that the regime remains proportionate. We do not, for example, expect to apply these duties to large companies with very limited functionalities. This change, however, provides greater flexibility to bring smaller services with particular functionalities into scope of category 1 duties, should it be necessary to do so. As a result of this amendment, we have also made a small change to Clause 98—the emerging services list—to ensure that it makes operational sense. Before my noble friend’s amendment, a service would be placed on the emerging services list if it met the functionality condition and 75% of the user number threshold. Under the clause as amended, a service could be designated as category 1 without meeting both a functionality and a user condition. Without this change, Ofcom would, in such an instance, be required to list only services which meet the 75% condition.

We have heard from both Houses about the importance of ensuring that technology platforms are held to account for the impact of their design choices on children’s safety. We agree and the amendments we proposed in another place make it absolutely clear that providers must assess the impact of their design choices on the risk of harm to children, and that they deliver robust protections for children on all areas of their service. I thank in particular the noble Baroness, Lady Kidron, the noble Lords, Lord Stevenson of Balmacara and Lord Clement-Jones, my noble friend Lady Harding of Winscombe and the right reverend Prelate the Bishop of Oxford for their hard work to find an acceptable way forward. I also thank Sir Jeremy Wright MP for his helpful contributions to this endeavour.

Noble Lords will remember that an amendment from the noble Baroness, Lady Merron, sought to require the Secretary of State to review certain offences relating to animals and, depending on the outcome of that review, to list these as priority offences. To accelerate protections in this important area, the Government have tabled an amendment in lieu listing Section 4(1) of the Animal Welfare Act 2006 as a priority offence. This will mean that users can be protected from animal torture material more swiftly. Officials at the Department for Environment, Food and Rural Affairs have worked closely with the RSPCA and are confident that the Section 4 offence, unnecessary suffering of an animal, will capture a broad swathe of illegal activity. Adding this offence to Schedule 7 will also mean that linked inchoate offences, such as encouraging or assisting this behaviour, are captured by the illegal content duties. I am grateful to the noble Baroness for raising this matter, for her discussions on them with my noble friend Lord Camrose and for her support for the amendment we are making in lieu.

To ensure the speedy implementation of the Bill’s regime, we have added Clauses 116 to 118, which relate to the disclosure of information by Ofcom, and Clauses 170 and 171, which relate to super-complaints, to the provisions to be commenced immediately on Royal Assent. These changes will allow Ofcom and the Government to hold the necessary consultations as quickly as possible after Royal Assent. As noble Lords know, the intention of the Bill is to make the UK the safest place in the world to be online, particularly for children. I firmly believe that the Bill before your Lordships today will do that, strengthened by the changes made in this House and by the collaborative approach that has been shown, not just in all quarters of this Chamber but between both Houses of Parliament. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister very warmly for his introduction today. I shall speak in support of Motions A to H inclusive. Yes, I am very glad that we have agreement at this final milestone of the Bill before Royal Assent. I pay tribute to the Minister and his colleagues, to the Secretary of State, to the noble Baronesses, Lady Morgan, Lady Kidron and Lady Merron, who have brought us to this point with their persistence over issues such as functionalities, categorisation and animal cruelty.

This is not the time for rehearsing any reservations about the Bill. The Bill must succeed and implementation must take place swiftly. So, with many thanks to the very many, both inside and outside this House, who have worked so hard on the Bill for such a long period, we on these Benches wish the Bill every possible success. He is in his place, so I can say that it is over to the noble Lord, Lord Grade, and his colleagues at Ofcom, in whom we all have a great deal of confidence.

Online Safety Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Report stage
Wednesday 19th July 2023 Lords Chamber

[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?

[Lord Parkinson of Whitley Bay (Con)]

I am grateful to noble Lords for their warm support and for heeding the advice of the noble Lord, Lord Stevenson, on brevity. We must finish our Report today. The noble Lord, Lord Allan, is right to mention my noble friend Lady Newlove, who I have spoken to about this issue, as well as the noble Lord, Lord Russell of Liverpool, who has raised some questions here.

Alongside the strong duties on services to offer content reporting and complaints procedures, our amendments will ensure that the effectiveness of these provisions can be reviewed after they have had sufficient time to bed in. The noble Lord, Lord Allan, asked about timing in more detail. Ofcom must publish the report within the two-year period beginning on the day on which the provision comes into force. That will allow time for the regime to bed in before the report takes place, ensuring that its conclusions are informed by how the procedures work in practice. If necessary, our amendments will allow the Secretary of State to impose via regulations a duty on the providers of category 1 services to arrange for and engage in an impartial, out-of-court alternative dispute resolution procedure, providing the further strengthening which I outlined in opening.

I can reassure my noble friend Lady Morgan of Cotes that reporting mechanisms to facilitate providers’ removal of fraudulent advertisements are exactly the kinds of issues that Ofcom’s codes of practice will cover, subject to consultation and due process. As companies have duties to remove fraudulent advertising once they are alerted to it, we expect platforms will need the necessary systems and processes in place to enable users to report fraudulent adverts so that providers can remove them.

My noble friend Lady Harding asked the question which was posed a lot in Committee about where one goes if all avenues are exhausted. We have added further avenues for people to seek redress if they do not get it but, as I said in Committee, the changes that we are bringing in through this Bill will mark a significant change for people. Rather than focusing on the even-further-diminished possibility of their not having their complaints adequately addressed through the additional amendments we are bringing today, I hope she will see that the provisions in the Bill and in these amendments as bringing in the change we all want to see to improve users’ safety online.

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[Lord Clement-Jones (LD)]

My Lords, I think the upshot of this brief debate is that the noble Lord, Lord Knight —how he was tracked down in a Pret A Manger, I have no idea; he is normally too fast-moving for that—in his usual constructive and creative way is asking the Government to constructively engage to find a solution, which he discussed in that Pret A Manger, involving a national helpline, the NSPCC and the Children’s Commissioner, for the very reasons that he and my noble friend Lord Allan have put forward. In no way would this be some of kind of quango, in the words of the noble Baroness, Lady Fox.

This is really important stuff. It could be quite a game-changer in the way that the NSPCC and the Children’s Commissioner collaborate on tackling the issues around social media, the impact of the new rights under the Bill and so on. I very much hope that the Government will be able to engage positively on this and help to bring the parties together to, in a sense, deliver something which is not in the Bill but could be of huge importance.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, first, I reassure noble Lords that the Government are fully committed to making sure that the interests of children are both represented and protected. We believe, however, that this is already achieved through the provisions in the Bill.

Rather than creating a single advocacy body to research harms to children and advocate on their behalf, as the noble Lord’s amendment suggests, the Bill achieves the same effect through a combination of Ofcom’s research functions, the consultation requirements and the super-complaints provisions. Ofcom will be fully resourced with the capacity and technological ability to assess and understand emerging harms and will be required to research children’s experiences online on an ongoing basis.

For the first time, there will be a statutory body in place charged with protecting children from harm online. As well as its enforcement functions, Ofcom’s research will ensure that the framework remains up to date and that Ofcom itself has the latest, in-depth information to aid its decision-making. This will ensure that new harms are not just identified in retrospect when children are already affected by them and complaints are made; instead, the regulator will be looking out for new issues and working proactively to understand concerns as they develop.

Children’s perspectives will play a central role in the development of the framework, as Ofcom will build on its strong track record of qualitative research to ensure that children are directly engaged. For example, Ofcom’s ongoing programme, Children’s Media Lives, involves engaging closely with children and tracking their views and experiences year on year.

Alongside its own research functions, super-complaints will ensure that eligible bodies can make complaints on systemic issues, keeping the regulator up to date with issues as they emerge. This means that if Ofcom does not identify a systemic issue affecting children for any reason, it can be raised and then dealt with appropriately. Ofcom will be required to respond to the super-complaint, ensuring that its subsequent decisions are understood and can be scrutinised. Complaints by users will also play a vital role in Ofcom’s horizon scanning and information gathering, providing a key means by which new issues can be raised.

The extensive requirements for Ofcom to consult on codes of practice and guidance will further ensure that it consistently engages with groups focused on the interests of children as the codes and guidance are developed and revised. Children’s interests are embedded in the implementation and delivery of this framework.

The Children’s Commissioner will play a key and ongoing role. She will be consulted on codes of practice and any further changes to those codes. The Government are confident that she will use her statutory duties and powers effectively to understand children’s experiences of the digital world. Her primary function as Children’s Commissioner for England is promoting and protecting the rights of children in England and to promote and protect the rights of children across the United Kingdom where those rights are or may be affected by reserved matters. As the codes of practice and the wider Bill relate to a reserved area of law—namely, internet services—the Children’s Commissioner for England will be able to represent the interests of children from England, Scotland, Wales and Northern Ireland when she is consulted on the preparation of codes of practice. That will ensure that children’s voices are represented right across the UK. The Children’s Commissioner for England and her office also regularly speak to the other commissioners about ongoing work on devolved and reserved matters. Whether she does that in branches of Pret A Manger, I do not know, but she certainly works with her counterparts across the UK.

I am very happy to take back the idea that the noble Lord has raised and discuss it with the commissioner. There are many means by which she can carry out her duties, so I am very happy to take that forward. I cannot necessarily commit to putting it in legislation, but I shall certainly commit to discussing it with her. On the proposals in the noble Lord’s amendment, we are concerned that a separate child user advocacy body would duplicate the functions that she already has, so I hope with that commitment he will be happy to withdraw.

Online Safety Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Report stage
Monday 17th July 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

We are keen to ensure that coroners have access to the information and expertise that they need, while respecting the independence of the judicial process to decide what they do not know and would like to know more about and the role of the Chief Coroner there. It is a point that I have discussed a lot with the noble Baroness and with my noble friend Lady Newlove in her former role as Victims’ Commissioner. I am very happy to continue doing so because it is important that there is access to that.

The noble Lord, Lord Stevenson, spoke to the amendments tabled by the noble Baroness, Lady Merron, about supposedly gendered language in relation to Clauses 141 and 157. As I made clear in Committee, I appreciate the intention—as does Lady Deben—of making clear that a person of either sex can perform the role of chairman, just as they can perform the role of ombudsman. We have discussed in Committee the semantic point there. The Government have used “chairman” here to be consistent with terminology in the Office of Communications Act 2002. I appreciate that this predates the Written Ministerial Statement which the noble Lord cited, but that itself made clear that the Government at the time recognised that in practice, parliamentary counsel would need to adopt a flexible approach to this change—for example, in at least some of the cases where existing legislation originally drafted in the former style is being amended.

The noble Lord may be aware of a further Written Ministerial Statement, made on 23 May last year, following our debates on gendered language on another Bill, when the then Lord President of the Council and Leader of the House of Commons said that the Office of the Parliamentary Counsel would update its drafting guidance in light of that. That guidance is still forthcoming. However, importantly, the term here will have no bearing on Ofcom’s decision-making on who would chair the advisory committees. It must establish that this could indeed be a person of either sex.

Amendment 253 seeks to enable co-operation, particularly via information-sharing, between Ofcom and other regulators within the UK. I reassure noble Lords that Section 393 of the Communications Act 2003 already includes provisions for sharing information between Ofcom and other regulators in the UK.

As has been noted, Ofcom already co-operates effectively with other domestic regulators. That has been strengthened by the establishment of the Digital Regulation Co-operation Forum. By promoting greater coherence, the forum helps to resolve potential tensions, offering clarity for people and the industry. It ensures collaborative work across areas of common interest to address complex problems. Its outputs have already delivered real and wide-ranging impacts, including landmark policy statements clarifying the interactions between digital regulatory regimes, research into cross-cutting issues, and horizon-scanning activities on new regulatory challenges. We will continue to assess how best to support collaboration between digital regulators and to ensure that their approaches are joined up. We therefore do not think that Amendment 253 is necessary.

[Lord Clement-Jones (LD)]

My Lords, the Minister has not stated that there is a duty to collaborate. Is he saying that that is, in fact, the case in practice?

[Lord Parkinson of Whitley Bay (Con)]

Yes, there is a duty, and the law should be followed. I am not sure whether the noble Lord is suggesting that it is not—

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[Lord Clement-Jones (LD)]

Is there a duty to collaborate between regulators?

[Lord Parkinson of Whitley Bay (Con)]

I am not sure that I follow the noble Lord’s question, but perhaps—

[Lord Clement-Jones (LD)]

My Lords, the Minister is saying that, in practice, there is a kind of collaboration between regulators and that there is a power under the Communications Act, but is he saying that there is any kind of duty on regulators to collaborate?

[Lord Parkinson of Whitley Bay (Con)]

If I may, I will write to the noble Lord setting that out; he has lost me with his question. We believe, as I think he said, that the forum has added to the collaboration in this important area.

The noble Baroness, Lady Finlay, raised important questions about avatars and virtual characters. The Bill broadly defines “content” as

“anything communicated by means of an internet service”,

meaning that it already captures the various ways through which users may encounter content. In the metaverse, this could therefore include things such as avatars or characters created by users. As part of the user-to-user services’ risk assessments, providers will be required to consider more than the risk in relation to user-generated content, including aspects such as how the design and operation of their services, including functionality and how the service is used, might increase the risk of harm to children and the presence of illegal content. A user-to-user service will need to consider any feature which enables interaction of any description between users of the service when carrying out its risk assessments.

The Bill is focused on user-to-user and search services, as there is significant evidence to support the case for regulation based on the risk of harm to users and the current lack of regulatory and other accountability in this area. Hosting, sharing and the discovery of user-generated content and activity give rise to a range of online harms, which is why we have focused on those services. The Bill does not regulate content published by user-to-user service providers themselves; instead, providers are already liable for the content that they publish on their services themselves, and the criminal law is the most appropriate mechanism for dealing with services which publish illegal provider content.

The noble Baroness’s Amendment 275A seeks to require Ofcom to produce a wide-ranging report of behaviour facilitated by emerging technologies. As we discussed in Committee, the Government of course agree that Ofcom needs continually to assess future risks and the capacity of emerging technologies to cause harm. That is why the Bill already contains provisions which allow it to carry out broad horizon scanning, such as its extensive powers to gather information, to commission skilled persons’ reports and to require providers to produce transparency reports. Ofcom has already indicated that it plans to research emerging technologies, and the Bill will require it to update its risk assessments, risk profiles and codes of practice with the outcomes of this research where relevant.

As we touched on in Committee, Clause 56 requires regular reviews by Ofcom into the incidence of content that is harmful to children, and whether there should be changes to regulations setting out the kinds of content that are harmful to children. In addition, Clause 143 mandates that Ofcom should investigate users’ experience of regulated services, which are likely to cover user interactions in virtual spaces, such as the metaverse and those involving content generated by artificial intelligence.

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[Lord Parkinson of Whitley Bay (Con)]

I am happy to provide further detail in writing and to reiterate the points I have made as it is rather technical. Content that is published by providers of user-to-user services themselves is not regulated by the Bill because providers are liable for the content they publish on the services themselves. Of course, that does not apply to pornography, which we know poses a particular risk to children online and is regulated through Part 5 of the Bill. I will set out in writing, I hope more clearly, for the noble Baroness what is in scope to reassure her about the way the Bill addresses the harms that she has rightly raised.

[Lord Clement-Jones (LD)]

Will the Minister copy other Members in?

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[Lord Parkinson of Whitley Bay (Con)]

Yes, and we can point to the current actions of Ofcom to show that it is indeed doing this already, even without that legislative stick.

I turn to the amendments in the name of my noble friend Lord Bethell and the noble Lord, Lord Clement-Jones, on researchers’ access to data. Amendment 237ZA would confer on the Secretary of State a power to make provisions about access to information by researchers. As my noble friend knows, we are sympathetic to the importance of this issue, which is why we have tabled our own amendments in relation to it. However, as my noble friend also knows, in such a complex and sensitive area that we think it is premature to endow the Secretary of State with such broad powers to introduce a new framework. As we touched on in Committee, this is a complex and still nascent area, which is why it is different from the other areas to which the noble Lord, Lord Clement-Jones, pointed in his contribution.

[Lord Clement-Jones (LD)]

The noble Baroness, Lady Harding, made the point that in other areas where the Minister has agreed to reviews or reports, there are backstop powers; for instance, on app stores. Of course, that was a negotiated settlement, so to speak, but why can the Minister not accede to that in the case of access for researchers, as he has with app stores? Indeed, there is one other example that escapes me, which the Minister has also agreed to.

[Lord Parkinson of Whitley Bay (Con)]

We touched on the complexity of defining who and what is a researcher and making sure that we do not give rise to bad actors exploiting that. This is a complex area, as we touched on in Committee. As I say, the evidence base here is nascent. It is important first to focus on developing our understanding of the issues to ensure that any power or legislation is fit to address those challenges. Ofcom’s report will not only highlight how platforms can share data with researchers safely but will provide the evidence base for considering any future policy approaches, which we have committed to doing but which I think the noble Lord will agree are worthy of further debate and reflection in Parliament.

[Lord Clement-Jones (LD)]

The benefit of having a period of time between the last day of Report on Wednesday and Third Reading is that that gives the Minister, the Bill team and parliamentary counsel the time to reflect on the kind of power that could be devised. The wording could be devised, and I would have thought that six weeks would be quite adequate for that, perhaps in a general way. After all, this is not a power that is immediately going to be used; it is a general power that could be brought into effect by regulation. Surely it is not beyond the wit to devise something suitable.

--- Later in debate ---

[Lord Clement-Jones (LD)]

I do not believe that the Minister has dealt with the minimum standards issue.

[Lord Parkinson of Whitley Bay (Con)]

I do not think that the noble Lord was listening to that point, but I did.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

I am happy to make it clear, as I did on the last group, that the power allows Ofcom not to require platforms to remove content, only to set out what they are doing in response to misinformation and disinformation—to require platforms to make a public statement about what they are doing to tackle it. In relation to regulating news providers, we have brought the further amendments forward to ensure that those subject to sanctions cannot avail themselves of the special provisions in the Bill. Of course, the Secretary of State will be mindful of the law when issuing directions in the exceptional circumstances that these clauses set out.

[Lord Clement-Jones (LD)]

While the Minister is describing that, can he explain exactly which media literacy power would be invoked by the kind of example I gave when I was introducing the amendment and in the circumstances he has talked about? Would he like to refer to the Communications Act?

[Lord Parkinson of Whitley Bay (Con)]

It depends on the circumstances. I do not want to give one example for fear of being unnecessarily restrictive. In relation to the health misinformation and disinformation we saw during the pandemic, an example would be the suggestions of injecting oneself with bleach; that sort of unregulated and unhelpful advice is what we have in mind. I will write to the noble Lord, if he wants, to see what provisions of the Communications Act we would want invoked in those circumstances.

In relation to Clause 159, which is dealt with by Amendment 222, it is worth setting out that the Secretary of State guidance and the statement of strategic priorities have distinct purposes and associated requirements. The purpose of the statement of strategic priorities is to enable the Secretary of State to specifically set out priorities in relation to online safety. For example, in the future, it may be that changes in the online experience mean that the Government of the day wish to set out their high-level overarching priorities. In comparison, the guidance allows for clarification of what Parliament and Government intended in passing this legislation—as I hope we will—by providing guidance on specific elements of the Bill in relation to Ofcom’s functions. There are no plans to issue guidance under this power but, for example, we are required to issue guidance to Ofcom in relation to the fee regime.

On the respective requirements, the statement of strategic priorities requires Ofcom to explain in writing what it proposes to do in consequence of the statement and publish an annual review of what it has done. Whereas Ofcom must “have regard” to the guidance, the guidance itself does not create any statutory requirements.

This is a new regime and is different in its nature from other established areas of regulations, such as broadcasting. The power in Clause 159 provides a mechanism to provide more certainty, if that is considered necessary, about how the Secretary of State expects Ofcom to carry out its statutory functions. Ofcom will be consulted before guidance is issued, and there are checks on how often it can be issued and revised. The guidance document itself, as I said, does not create any statutory requirements, so Ofcom is required only to “have regard” to it.

This will be an open and transparent way to put forward guidance appropriately with safeguards in place. The independence of the regulator is not at stake here. The clause includes significant limitations on the power, and the guidance cannot fetter Ofcom’s operational independence. We feel that both clauses are appropriate for inclusion in the Bill, so I hope that the noble Lord will withdraw his amendment.

[Lord Clement-Jones (LD)]

I thank the Minister for that more extended reply. It is a more reassuring response on Clause 159 than we have had before. On Clause 158, the impression I get is that the media literacy power is being used as a smokescreen for the Government telling social media what it should do, indirectly via Ofcom. That seems extraordinary. If the Government were telling the mainstream media what to do in circumstances like this, we would all be up in arms. However, it seems to be accepted as a part of the Bill and that we should trust the Government. The Minister used the phrase “special circumstances”. That is not the phraseology in the clause; it is that “circumstances exist”, and then it goes on to talk about national security and public health. The bar is very low.

I am sure everyone is getting hungry at this time of day, so I will not continue. However, we still have grave doubts about this clause. It seems an extraordinary indirect form of censorship which I hope is never invoked. In the meantime, I beg leave to withdraw my amendment.

--- Later in debate ---

[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.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the Government share the view of my noble friend Lord Moylan about the importance of transparency in protecting freedom of expression. I reassure him and other noble Lords that these principles are central to the Government’s operational response to addressing harmful disinformation and attempts artificially to manipulate our information environment.

My noble friend and others made reference to the operational work of the Counter Disinformation Unit, which is not, as the noble Baroness, Lady Fox, said, the responsibility of my department but of the Department for Science, Innovation and Technology. The Government have always been transparent about the work of the unit; for example, recently publishing a factsheet on GOV.UK which sets out, among other things, how the unit works with social media companies.

I reassure my noble friend that there are existing processes governing government engagements with external parties and emphasise to him that the regulatory framework that will be introduced by the Bill serves to increase transparency and accountability in a way that I hope reassures him. Many teams across government regularly meet industry representatives on a variety of issues from farming and food to telecoms and digital infrastructure. These meetings are conducted within well-established transparency processes and frameworks, which apply in exactly the same way to government meetings with social media companies. The Government have been open about the fact that the Counter Disinformation Unit meets social media companies. Indeed, it would be surprising if it did not. For example, at the beginning of the Russian invasion of Ukraine, the Government worked with social media companies in relation to narratives which were being circulated attempting to deny incidents leading to mass casualties, and to encourage the promotion of authoritative sources of information. That work constituted routine meetings and was necessary in confirming the Government’s confidence in the preparedness and ability of platforms to respond to new misinformation and disinformation threats.

To require additional reporting on a sector-by-sector or department-by-department basis beyond the standardised transparency processes, as proposed in my noble friend’s amendment, would be a disproportionate and unnecessary response to what is routine engagement in an area where the Government have no greater powers or influence than in others. They cannot compel companies to alter their terms of service; nor can or do they seek to mandate any action on specific pieces of content.

I reassure the noble Baroness, Lady Fox, that the Counter Disinformation Unit does not monitor individual people, nor has it ever done so; rather, it tracks narratives and trends using publicly available information online to protect public health, public safety and national security. It has never tracked the activity of individuals, and there is a blanket ban on referring any content from journalists or parliamentarians to social media performs. The Government have always been clear that the Counter Disinformation Unit refers content for consideration only where an assessment has been made that it is likely to breach the platform’s own terms of service. It has no role in deciding what action, if any, to take in response, which is entirely a matter for the platform concerned.

As I said, the Bill will introduce new transparency, accountability and freedom of expression duties for category 1 services which will make the process for any removal or restriction of user-generated content more transparent by requiring category 1 services to set terms of service which are clear, easy for users to understand and consistently enforced. Category 1 services will be prohibited from removing or restricting user-generated content or suspending or banning users where this does not align with those terms of service. Any referrals from government will not, and indeed cannot, supersede these duties in the Bill.

Although I know it will disappoint my noble friend that another of his amendments has not been accepted, I hope I have been able to reassure him about the Government’s role in these processes. As the noble Lord, Lord Clement-Jones, noted, my noble friend Lord Camrose is answering a Question on this in your Lordships’ House tomorrow, further underlining the openness and parliamentary accountability with which we go about this work. I hope my noble friend will, in a similarly post-prandial mood of generosity, suppress his disappointment and feel able to withdraw his amendment.

Online Safety Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Report stage
Wednesday 12th July 2023 Lords Chamber

[Lord Clement-Jones (LD)]

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

[Lord Parkinson of Whitley Bay (Con)]

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

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

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

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

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

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

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

“anything communicated by means of an internet service”.

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

[Lord Clement-Jones (LD)]

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

[Lord Parkinson of Whitley Bay (Con)]

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

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

[Lord Parkinson of Whitley Bay (Con)]

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

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

The Bill broadly defines “content” as

“anything communicated by means of an internet service”,

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

“read, view, hear or otherwise experience”

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

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

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

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

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

[Lord Clement-Jones (LD)]

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

Online Safety Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Report stage
Monday 10th July 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, very briefly, I commend these two amendments. Again, the provenance is very clear; the Joint Committee said:

“This regulatory alignment would simplify compliance for businesses, whilst giving greater clarity to people who use the service, and greater protection to children.”


It suggested that the Information Commissioner’s Office and Ofcom should issue a joint statement on how these two regulatory systems will interact once the Online Safety Bill has been enacted. That still sounds eminently sensible, a year and a half later.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, Amendments 100 and 101 seek further to define the meaning of “significant” in the children’s access assessment, with the intention of aligning this with the meaning of “significant” in the Information Commissioner’s draft guidance on the age-appropriate design code.

I am grateful to the noble Baroness, Lady Kidron, for the way in which she has set out the amendments and the swiftness with which we have considered it. The test in the access assessment in the Bill is already aligned with the test in the code, which determines whether a service is likely to be accessed by children in order to ensure consistency for all providers. The Information Commissioner’s Office has liaised with Ofcom on its new guidance on the likely to access test for the code, with the intention of aligning the two regulatory regimes while reflecting that they seek to do different things. In turn, the Bill will require Ofcom to consult the ICO on its guidance to providers, which will further support alignment between the tests. So while we agree about the importance of alignment, we think that it is already catered for.

With regard to Amendment 100, Clause 30(4)(a) already states that

“the reference to a ‘significant’ number includes a reference to a number which is significant in proportion to the total number of United Kingdom users of a service”.

There is, therefore, already provision in the Bill for this being a significant number in and of itself.

On Amendment 101, the meaning of “significant” must already be more than insignificant by its very definition. The amendment also seeks to define “significant” with reference to the number of children using a service rather than seeking to define what is a significant number.

I hope that that provides some reassurance to the noble Baroness, Lady Kidron, and that she will be content to withdraw the amendment.

Online Safety Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Report stage
Monday 10th July 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am sorry that the noble Baroness, Lady Benjamin, was unable to be here for the start of the debate on Thursday and therefore that we have not had the benefit of hearing from her today. I am very glad that she was here to hear the richly deserved plaudits from across the House for her years of campaigning on this issue.

I am very glad to have had the opportunity to discuss matters directly with her including, when it was first announced, the review that we have launched. I am pleased that she gave it a conditional thumbs up. Many of her points have been picked up by other noble Lords today. I did not expect anything more than a conditional thumbs up from her, given her commitment to getting this absolutely right. I am glad that she is here to hear some of the answers that I am able to set out, but I know that our discussions would have continued even if she had been able to speak today and that her campaigns on this important issue will not cease; she has been tireless in them. I am very grateful to her, my noble friends Lord Bethell and Lady Harding, the noble Baroness, Lady Kidron, and many others who have been working hard on this.

Let me pick up on their questions and those of the noble Baroness, Lady Ritchie of Downpatrick, and others on the review we announced last week. It will focus on the current regulatory landscape and how to achieve better alignment of online and offline regulation of commercial pornography. It will also look at the effectiveness of the criminal law and the response of the criminal justice system relating to pornography. This would focus primarily on the approach taken by law enforcement agencies and the Crown Prosecution Service, including considering whether changes to the criminal law would address the challenges identified.

The review will be informed by significant expert input from government departments across Whitehall, the Crown Prosecution Service and law enforcement agencies, as well as through consultation with the industry and with civil society organisations and regulators including, as the noble Baroness, Lady Ritchie, rightly says, some of the many NGOs that do important work in this area. It will be a cross-government effort. It will include but not be limited to input from the Ministry of Justice, the Home Office, the Department for Science, Innovation and Technology and my own Department for Culture, Media and Sport. I assure my noble friend Lord Farmer that other government departments will of course be invited to give their thoughts. It is not an exhaustive list.

I detected the enthusiasm for further details from noble Lords across the House. I am very happy to write as soon as I have more details on the review, to keep noble Lords fully informed. I can be clear that we expect the review to be complete within 12 months. The Government are committed to undertaking it in a timely fashion so that any additional safeguards for protecting UK users of online services can be put in place as swiftly as possible.

My noble friend Lord Bethell asked about international alignment and protecting Britain for investment. We continue to lead global discussions and engagement with our international partners to develop common approaches to online safety while delivering on our ambition to make the UK the safest place in the world to be online.

The noble Baroness, Lady Kidron, asked about the new requirements. They apply only to Part 3 providers, which allow pornography or other types of primary priority content on their service. Providers that prohibit this content under their terms of service for all users will not be required to use age verification or age estimation. In practice, we expect services that prohibit this content to use other measures to meet their duties, such as effective content moderation and user reporting. This would protect children from this content instead of requiring measures that would restrict children from seeing content that is not allowed on the service in the first place.

These providers can still use age verification and age estimation to comply with the existing duty to prevent children encountering primary priority content. Ofcom can still recommend age-verification and age-estimation measures in codes of practice for these providers where proportionate. On the noble Baroness’s second amendment, relating to Schedule 4, Ofcom may refer to the age-assurance principles set out in Schedule 4 in its children’s codes of practice.

On the 18-month timetable, I can confirm that 18 months is a backstop and not a target. Our aim is to have the regime in force as quickly as possible while making sure that services understand their new duties. Ofcom has set out in its implementation road map that it intends to publish draft guidance under Part 5 this autumn and draft children’s codes next spring.

The noble Baroness, Lady Ritchie, also asked about implementation timetables. I can confirm that Part 3 and Part 5 duties will be implemented at the same time. Ofcom will publish draft guidance shortly after Royal Assent for Part 5 duties and codes for the illegal content duties in Part 3. Draft codes for Part 3 children’s duties will follow in spring next year. Some Part 3 duties relating to category 1 services will be implemented later, after the categorisation thresholds have been set in secondary legislation.

The noble Lord, Lord Allan of Hallam, asked about interoperability. We have been careful to ensure that the Bill is technology neutral and to allow for innovation across the age-assurance market. We have also included a principle on interoperability in the new list of age-assurance principles in Schedule 4 and the Part 5 guidance.

At the beginning of the debate, on the previous day on Report, I outlined the government amendments in this group. There are some others, which noble Lords have spoken to. Amendments 125 and 217, from the noble Baroness, Lady Kidron, seek to add additional principles on user privacy to the new lists of age-assurance principles for both Part 3 and 5, which are brought in by Amendments 124 and 216. There are already strong safeguards for user privacy in the Bill. Part 3 and 5 providers will need to have regard to the importance of protecting users’ privacy when putting in place measures such as age verification or estimation. Ofcom will be required to set out, in codes of practice for Part 3 providers and in guidance for Part 5 providers, how they can meet these duties relating to privacy. Furthermore, companies that use age-verification or age-estimation solutions will need to comply with the UK’s robust data protection laws or face enforcement action.

Adding the proposed new principles would, we fear, introduce confusion about the nature of the privacy duties set out in the Bill. Courts are likely to assume that the additions are intended to mean something different from the provisions already in the Bill relating to privacy. The new amendments before your Lordships imply that privacy rights are unqualified and that data can never be used for more than one purpose, which is not the case. That would introduce confusion about the nature of—

[Lord Clement-Jones (LD)]

My Lords, I apologise to the Minister. Can he write giving chapter and verse for that particular passage by reference to the contents of the Bill?

[Lord Parkinson of Whitley Bay (Con)]

I am very happy to do that. That would probably be better than me trying to do so at length from the Dispatch Box.

Government Amendment 124 also reinforces the importance of protecting children’s privacy, including data protection, by ensuring that Ofcom will need to have regard to standards set out under Section 123 of the Data Protection Act 2018 in the age-appropriate design code. I hope that explains why we cannot accept Amendments 125 or 217.

The noble Baroness, Lady Fox, has Amendment 184 in this group and was unable to speak to it, but I am very happy to respond to it and the way she set it out on the Marshalled List. It seeks to place a new duty on Ofcom to evaluate whether internet service providers, internet-connected devices or individual websites should undertake user-identification and age-assurance checks. This duty would mean that such an evaluation would be needed before Ofcom produces guidance for regulated services to meet their duties under Clauses 16 and 72.

Following this evaluation, Ofcom would need to produce guidance on age-verification and age-assurance systems, which consider cybersecurity and a range of privacy considerations, to be laid before and approved by Parliament. The obligation for Ofcom to evaluate age assurance, included in the noble Baroness’s amendment, is already dealt with by Amendment 271, which the Government have tabled to place a new duty on Ofcom to publish a report on the effectiveness of age-assurance solutions. That will specifically include consideration of cost to business, and privacy, including the processing of personal data.

Creative Industries (Communications and Digital Committee Report)

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Friday 7th July 2023 Lords Chamber

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

My Lords, this has indeed been an excellent debate. I agree with the noble Lord, Lord Griffiths of Burry Port, that it has been an uplifting way to end what has been a long and busy week in your Lordships’ House. Like everyone who has spoken, I am very grateful to my noble friend Lady Stowell of Beeston for tabling this debate and for how she opened it and outlined the work of your Lordships’ committee. I am in the slightly unusual position of having been a DCMS Minister when the department began the inquiry and when it reported but having in the interim sat briefly on the committee, so I can join with the deserved plaudits which were raised for my noble friend on how she chairs that committee, the remarks that have been made about the cross-party and consensual way that it operates, and the regret which was shared by all that the noble Baroness, Lady Featherstone, could not be here to join in our debate today.

As everyone who has spoken knows, the creative industries make an invaluable contribution to this country, as an economic powerhouse and by enriching the lives of everyone that they touch in the UK and around the world. As many noble Lords have noted, the creative industries have grown one-and-a-half times as quickly as the rest of the economy between 2010 and 2019, generating £108 billion in GVA in 2021. Their growth in terms of jobs has been even more marked. Their strong performance and potential is why my right honourable friend the Chancellor selected them as one of his five priority sectors in the 2022 Autumn Statement. I am grateful to my noble friend Lady Stowell for her recognition of the renewed level of political attention and support that the creative industries have across government.

The report of your Lordships’ committee has been timely as well as important. We share a passion for ensuring that we have a thriving, growing creative sector. The Secretary of State and I were delighted to receive the committee’s letter welcoming the publication of the Government’s Creative Industries Sector Vision. I agree with my noble friend Lord Vaizey that it may not have the glitziest name, but the sector vision is just that. It is a forward look and a starting point for us to work with the industry on the goals and objectives outlined in it. It marks a commitment between government and industry, which come together through the Creative Industries Council, to take action, for us to build on the solid foundations of the sector deal which was announced in 2018 to meet our jointly agreed goals by 2030. These are to:

“Grow creative clusters across the UK, adding £50 billion more in Gross Value Added … Build a highly-skilled, productive and inclusive workforce for the future, supporting one million more jobs across the UK … Maximise the positive impact of the creative industries on people, communities, the environment, and the UK’s global standing”.


We have demonstrated our commitment to the sector by providing over £300 million in support since 2021. The sector vision itself was supported by a further £77 million of funding. This will go to supporting key industry priorities, including ones which noble Lords have highlighted today, such as the importance of live-music venues. We have provided £5 million to expand Arts Council England’s support for live-music venues. The noble Lord, Lord Watson of Invergowrie, is right to highlight the important work that it does in supporting emerging artists. As with the sector deal in 2018, we expect these public commitments to unleash even larger amounts of private investment across the sector.

I am delighted that my noble friend Lord Vaizey was here to remind us of how much positive news there is across the creative industries, as well as to issue the challenge for us to tell our story more proudly. I am grateful for his kind words and for jinxing my career prospects in government. I feel about him as TS Eliot did about Ezra Pound in his dedication to The Wasteland, “il miglior fabbro”.

But we know that this diverse and dynamic sector delivers high-value, high-skilled jobs, from advertising to theatre, publishing to film and much more besides. It sets us apart on the international stage, distributing British content across the globe and enhancing our soft power, through talent, cutting-edge technologies and infrastructure, and strong intellectual property frameworks. We have made great progress but, as your Lordships’ committee points out, there is more to do. I will pick up on some of the issues raised in the debate and in the committee’s report.

The creative industries are a remarkably innovative sector and have been at the forefront of developments in artificial intelligence and immersive technology for many years. This crossover, also known as “createch”, has become especially prominent in recent months, with advances in AI technology. As my noble friend Lady Stowell reminded us, Ai-Da the robot was a star witness in the committee’s proceedings. The creative industries have been key users of AI for many years, in sectors such as video games, publishing and advertising. AI has enormous potential to deliver high-quality jobs and opportunities and to enable further growth in the creative industries.

However, it is important that we harness the benefits of AI while also managing the risks, including in the domain of copyright, which many noble Lords spoke about. It is vital that creatives are fairly compensated for their work—the noble Lord, Lord Berkeley of Knighton, spoke powerfully about the challenges and some of the numbers involved in doing that. The UK has world-leading protections for copyright and intellectual property. We know how important maintaining these are for the success of our creative industries, and we understand creators’ concerns when their work is used by artificial intelligence without their consent.

The noble Earl, Lord Clancarty, asked for an update on our work in this area. The government response to the Vallance Pro-innovation Regulation of Technologies Review in March confirmed that we would seek to develop a code of practice on copyright and to allow AI innovators and the creative industries to grow together in partnership. We want rights holders to be assured that AI firms will use their content appropriately and lawfully, and we want to ensure that AI-generated outputs are labelled appropriately to provide confidence in the origin of creative content.

We want to take a balanced and pragmatic approach. As my noble friend Lady Stowell noted, the Intellectual Property Office is working with representatives from across the creative industries, as well as AI firms, to develop good practice, guidance and other measures that support this goal. Those working-group meetings are happening as we speak, and officials from DCMS are observing them and attending an informal project board with colleagues from the Department for Science, Innovation and Technology and the Intellectual Property Office. The IPO is aiming to publish a principles-based code in draft before the Summer Recess, and it will outline next steps in this work.

Noble Lords talked about the importance of creator remuneration in music. We have always supported industry-led approaches—legislation is often not the best answer, and it is certainly rarely the swiftest. For example, with music streaming, the industry has worked together to produce an industry commitment to improve metadata and is close to reaching an agreement on transparency. Similarly, we think that an industry working group is the best way to reach a consensus on creator remuneration, building on the steps that individual companies have already taken.

The music industry is already a major driver of economic growth and investment in the UK, and the Government are eager to ensure that it remains globally competitive. That is why, in the sector vision, the Government trebled funding for the music exports growth scheme to £3.2 million over the next two years, helping emerging artists to break into new global markets and to ensure that the UK’s music sector remains one of the biggest music exporters in the world. This week, we had the very welcome news from the BPI that UK music exports jumped 20% last year to break £700 million for the first time.

Businesses also need to be able to invest in order to grow, and tax can be just as important in their growth cycle as access to finance. A number of noble Lords talked about the importance of tax reliefs. We recognise the importance of competitive creative industries tax reliefs to provide incentives in the screen sector in the UK. In 2021-22, a total of £989 million was paid out across our tax reliefs for film, television and video games, supporting over 1,800 productions and games.

The Government are committed to ensuring that our audiovisual tax reliefs remain world-leading and continue to best serve the needs of creative companies. Reforms to those tax reliefs, announced by the Chancellor at the Budget, will ensure that the tax system continues to drive growth and delivers on our commitment to build an enterprise economy, as well as bringing greater clarity to businesses about eligible productions. We want to work closely with the VFX sector on boosting growth and supporting a pipeline of talent into this cutting-edge UK industry.

Thanks to the redoubtable campaigning and effective evidence marshalling of the sector, the Budget this spring extended the higher rates of tax reliefs for theatres, orchestras, museums and galleries by two years, estimated to be worth £350 million collectively. I have already heard from theatres and producers about the difference it is making in terms of the creative risks they are able to take and the programming they are now doing for the months ahead.

My noble friend Lord Vaizey of Didcot asked about R&D tax reliefs, which are a vital part of growing businesses across the UK. As he knows, the UK is unique in having two R&D schemes: one for large businesses, and one for smaller businesses. Earlier this year, my noble friend will have seen that the Government ran a consultation which sought views on a simplified R&D tax relief scheme, merging the two schemes. The Government are considering their response to the consultation and will publish draft legislation on a merged scheme for the technical consultation. My noble friend, however, will have to wait for a fiscal event to hear more about the work which may flow from it.

My noble friend was also right to remind us of the importance of conservatoires and centres of excellence. Like the noble Baroness, Lady Merron, I look forward to the Yehudi Menuhin event later this year. I had the pleasure of going to one of the school leavers’ concerts with my noble friend Lord Blackwell last year. It really was remarkable. I began today by visiting Camberwell College of Arts, which has nurtured and developed world-leading arts and creativity in this country for 125 years. I went to its MA show to see some of the current postgraduate students’ work.

In the 2021-22 academic year, the Department for Education asked the Office for Students to invest an additional £10 million in our world-leading specialist providers. We have maintained that level of funding at £58 million for the current academic year.

Noble Lords rightly noted the creative industries’ impact on broad swathes of our lives as well as the economy. We know that this means it is more than just DCMS which has a role to play in providing support for our creative industries. I was much taken with the analogy given by the noble Lord, Lord Berkeley, of the Government as an orchestra and his desire to hear a more synchronous sound from us. The committee’s report is correct that a plan on its own is not enough and cross-departmental collaboration will be key to its success. However, I am delighted to say that we have made excellent progress in this area, as shown by the breadth of commitments contained in the sector vision. We are working with His Majesty’s Treasury on new funding for the sector; with the Department for Science, Innovation and Technology on cutting edge R&D through the CoSTAR programme and the next wave of creative clusters; with the Department for Business and Trade on boosting creative exports; and with the Department for Education to build the talent pipeline, through a range of skills and education initiatives.

I certainly agree with the noble Baroness, Lady Rebuck, that the skills pipeline is of critical importance to our creative industries. That is why I am delighted that this week we have announced further members of the panel who will be working with the wonderful noble Baroness, Lady Bull, to develop a cultural education plan for the Government. She has been working incredibly hard on it. I attended one of the listening exercises she held a few weeks ago and I was at the Royal Opera House to attend the head teachers’ symposium, where we gathered further thoughts to feed into it. I will begin next week at the Department for Education, meeting the whole panel with the noble Baroness. Furthermore, the upcoming round table on apprenticeships will be co-chaired by both the Education Secretary and my right honourable friend the Secretary of State for DCMS.

My department is working closely with the Department for Education and with the industry to drive forward the work to build a highly skilled workforce and support 1 million more jobs across the UK. We will publish the cultural education plan later this year and deliver the national plan for music education, driven by my noble friend Lady Fleet. That included £25 million in capital funding for musical instruments. We will explore opportunities for enrichment activities as part of our wraparound childcare provision. We will improve creative apprenticeships, with regards to small and medium enterprise engagement, training provision and the effectiveness and sustainability of the flexi-job model. We will support the rollout of T-levels, and complementary high-quality, employer-led level 3 qualifications, and we will work with the industry so that it can take advantage of skills boot camps at national and regional levels, and benefit from new local skills improvement plans and the lifelong loan entitlement in 2025.

Noble Lords asked for more detail on the creative careers programme. They are right that there can be a lack of understanding about jobs in the creative industries, such as over the sheer availability of roles that there are. For instance, it takes some 500 different jobs to make a single blockbuster movie. There are also misconceptions about the stability and accessibility of creative jobs, which is why the work that we are doing in the sector vision aims to improve understanding and challenge those misconceptions, including through the Discover Creative Careers programme.

The noble Lord, Lord Clement-Jones, was right to highlight the importance of freelancers in the creative industries. Last month we had a very good debate focused specifically on them. The policy and evidence centre delivered its independent review of job quality and working practices in the creative industries earlier this year, and that was co-funded by DCMS. The Government and the industry will set out an action plan to address the recommendations later in the year.

The noble Lord, Lord Foster of Bath, asked about the benefits system and how it interacts with freelancers in the creative sector. Again, we touched on that in the debate last month, and I know that Equity is holding an event next week. Unfortunately, I will be in the Chamber as we work on the Online Safety Bill, but I am glad that it is coming to engage colleagues from across the House and from the departments for work and education on it.

I will take back the idea from the noble Baroness, Lady Bonham-Carter, about the Education Secretary joining the Creative Industries Council but, as she may well know, Sir Peter Bazalgette, who jointly chairs it, is a non-executive director at the Department for Education, which helps with that join-up across government. I will also take back to colleagues in the Department for Education the point made by the noble Earl, Lord Clancarty, about the dichotomy with the Russell group universities.

Tackling skills gaps and shortages through all these initiatives is work that is being done. It requires significant evidence and data, which is another area on which we are working with the Department for Education. Our understanding of the creative industries through evidence and data is constantly expanding. Where gaps remain, such as forecasting skills needs, the DfE’s Unit for Future Skills is working to fill them, in partnership with analysts at DCMS and the Creative Industries Policy and Evidence Centre. Furthermore, inspired by the BFI’s film and high-end TV skills review, the Creative Industries Council has committed to delivering subsector skills reviews over the next year, giving a clearer picture of the gaps and shortages particular to each subsector of the creative industries.

I am incredibly proud of the creative industries sector—

[Lord Clement-Jones (LD)]

The Minister has covered a great deal of ground, but he has not covered the implementation of the Beijing treaty and the performing rights issues in the light of AI, or some of the other IP issues. Will he write?

[Lord Parkinson of Whitley Bay (Con)]

I will, although I may not be able to say much more than I am happy to say now in response to the noble Lord. The discussions on the code of practice are ongoing, and a public update will follow shortly; if it follows shortly enough for me to write with more detail, I will. If not, I hope he will be satisfied with that for now.

Many questions were noted in the debate over the past three hours, and I have tried to cover as many of them as I can. As noble Lords noted, the report touched on huge numbers of areas but also highlighted further areas for us all to explore in government and in your Lordships’ committee. I am very proud of the work that we are doing through the creative industries sector vision and, if I may say so, as a former member of the committee, I am very proud of the report that your Lordships’ committee has published.

The clear passion was evident from every noble Lord who spoke in this debate, and their anxiety to get this right for the future. Perhaps, on a sunny Friday, I may also say that I detected notes of optimism, both in the tributes being paid to new and established schools, at Old Street and in Camden. I hope that they will allow some of that optimism to extend to the work being done in government. I look forward to working with noble Lords from across the House to put it into action.

Online Safety Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Report stage
Thursday 6th July 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, does the Minister have any more to say on identity verification?

[Lord Parkinson of Whitley Bay (Con)]

I am being encouraged to be brief so, if I may, I will write to the noble Lord on that point.

Online Safety Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Report stage
Thursday 6th July 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

I do not think that it is, but it will be helpful to have a debate on categorisation later on Report, when we reach Amendment 245, to probe this further. It is not possible for me to say that a particular service will certainly be categorised one way or another, because that would give it carte blanche and we do not know how it may change in the future—estimable though I may think it is at present. That is the difficulty of setting the precise parameters that the noble Baroness, Lady Fox, sought in her contribution. We are setting broad parameters, with exemptions and categorisations, so that the burdens are not unduly heavy on services which do not cause us concern, and with the proviso for the Secretary of State to bring further exemptions before Parliament, as circumstances strike her as fit, for Parliament to continue the debate we are having now.

The noble Baroness, Lady Kidron, in her earlier speech, asked about the functionalities of user-to-user services. The definitions of user-to-user services are broad and flexible, to capture new and changing services. If a service has both user-to-user functionality and a search engine, it will be considered a combined service, with respective duties for the user-to-user services which form part of its service and search duties in relation to the search engine.

I reassure my noble friend Lady Harding of Winscombe that the Bill will not impose a disproportionate burden on services, nor will it impede the public’s access to valuable content. All duties on services are proportionate to the risk of harm and, crucially, to the capacity of companies. The Bill’s proportionate design means that low-risk services will have to put in place only measures which reflect the risk of harm to their users. Ofcom’s guidance and codes of practice will clearly set out how these services can comply with their duties. We expect that it will set out a range of measures and steps for different types of services.

Moreover, the Bill already provides for wholesale exemptions for low-risk services and for Ofcom to exempt in-scope services from requirements such as record-keeping. That will ensure that there are no undue burdens to such services. I am grateful for my noble friend’s recognition, echoed by my noble friend Lady Stowell of Beeston, that “non-profit” does not mean “not harmful” and that there can be non-commercial services which may pose harms to users. That is why it is important that there is discretion for proper assessment.

Amendment 30 seeks to allow Ofcom to withdraw the exemptions listed in Schedule 1 from the Bill. I am very grateful to my noble friend Lord Moylan for his time earlier this week to discuss his amendment and others. We have looked at it, as I promised we would, but I am afraid that we do not think that it would be appropriate for Ofcom to have this considerable power—my noble friend is already concerned that the regulator has too much.

The Bill recognises that it may be necessary to remove certain exemptions if there is an increased risk of harm from particular types of services. That is why the Bill gives the Secretary of State the power to remove particular exemptions, such as those related to services which have limited user-to-user functionality and those which offer one-to-one live aural communications. These types of services have been carefully selected as areas where future changes in user behaviour could necessitate the repeal or amendment of an exemption in Schedule 1. This power is intentionally limited to only these types of services, meaning that the Secretary of State will not be able to remove exemptions for comments on recognised news publishers’ sites. That is in recognition of the Government’s commitment to media freedom and public debate. It would not be right for Ofcom to have the power to repeal those exemptions.

Amendments 281 and 281B, in the name of the noble Lord, Lord Russell of Liverpool, are designed to ensure that the lists of features under the definition of “functionality” in the Bill apply to all regulated services. Amendment 281A aims to add additional examples of potentially addictive functionalities to the Bill’s existing list of features which constitute a “functionality”. I reassure him and other noble Lords that the list of functionalities in the Bill is non-exhaustive. There may be other functionalities which could cause harm to users and which services will need to consider as part of their risk assessment duties. For example, if a provider’s risk assessment identifies that there are functionalities which risk causing significant harm to an appreciable number of children on its service, the Bill will require the provider to put in place measures to mitigate and manage that risk.

He and other noble Lords spoke about the need for safety by design. I can reassure them this is already built into the framework of the Bill, which recognises how functionalities including many of the things mentioned today can increase the risk of harm to users and will encourage the safe design of platforms.

Amendments 281 and 281B have the effect that regulated services would need to consider the risk of harm of functionalities that are not relevant for their kind of service. For example, sharing content with other users is a functionality of user-to-user services, which is not as relevant for search services. The Bill already outlines specific features that both user-to-user and search services should consider, which are the most relevant functionalities for those types of service. Considering these functionalities would create an unnecessary burden for regulated services which would detract from where their efforts can best be focused. That is why I am afraid I cannot accept the amendments that have been tabled.

[Lord Clement-Jones (LD)]

My Lords, surely it is the role of the regulators to look at functionalities of this kind. The Minister seemed to be saying that it would be an undue burden on the regulator. Is not that exactly what we are meant to be legislating about at this point?

[Lord Parkinson of Whitley Bay (Con)]

Perhaps I was not as clear as I could or should have been. The regulator will set out in guidance the duties that fall on the businesses. We do not want the burden on the business to be unduly heavy, but there is an important role for Ofcom here. I will perhaps check—

[Lord Clement-Jones (LD)]

But these functionalities are a part of their business model, are they not?

[Lord Parkinson of Whitley Bay (Con)]

Hence Ofcom will make the assessments about categorisation based on that. Maybe I am missing the noble Lord’s point.

[Lord Clement-Jones (LD)]

I think we may need further discussions on the amendment from the noble Lord, Lord Russell.

[Lord Parkinson of Whitley Bay (Con)]

I will check what I said but I hope that I have set out why we have taken the approach that we have with the broad scope and the exemptions and categorisations that are contained in it. With that, I urge the noble Lord to withdraw his amendment.

Online Safety Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Report stage
Thursday 6th July 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, needless to say, I disagree with what the noble Lord, Lord Moylan, has just been saying precisely because I believe that the new clause that the Minister has put forward, which I have signed and has support across the House, expresses the purpose of the Bill in the way that the original Joint Committee wanted. I pay tribute to the Minister, who I know has worked extremely hard, in co-operation with the noble Lord, Lord Stevenson of Balmacara, to whom I also pay tribute for getting to grips with a purpose clause. The noble Baronesses, Lady Kidron and Lady Harding, have put their finger on it: this is more about activity and design than it is about content, and that is the reason I fundamentally disagree with the noble Lord, Lord Moylan. I do not believe that will be the impact of the Bill; I believe that this is about systemic issues to do with social media, which we are tackling.

I say this slightly tongue-in-cheek, but if the Minister had followed the collective wisdom of the Joint Committee originally, perhaps we would not have worked at such breakneck speed to get everything done for Report stage. I believe that the Bill team and the Minister have worked extremely hard in a very few days to get to where we are on many amendments that we will be talking about in the coming days.

I also want to show my support for the noble Baroness, Lady Merron. I do not believe it is just a matter of the Interpretation Act; I believe this is a fundamental issue and I thank her for raising it, because it was not something that was immediately obvious. The fact is that a combination of characteristics is a particular risk in itself; it is not just about having several different characteristics. I hope the Minister reflects on this and can give a positive response. That will set us off on a very good course for the first day of Report.

[Lord Parkinson of Whitley Bay (Con)]

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

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

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

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

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

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

If a defendant said that he—usually he—had sent an image believing that the consent of the recipient was implied, the person making the complaint would be cross-examined on whether or not she had indeed given that consent. If an offence predicated on proof of non-consent or proof of harm were made out, the victim could be called to give evidence and be cross-examined in court. The defence would be likely to lead evidence challenging the victim’s characteristics and credibility. We do not want that to be a concern for victims; we do not want that to be a barrier to victims coming forward and reporting abuse for fear of having their sexual history or intentions cross-examined.

[Lord Clement-Jones (LD)]

My Lords, we are coming to this in the next group, but that is a consent-based offence, is it not?

[Lord Parkinson of Whitley Bay (Con)]

It is—and I shall explain more in that group why we take that approach. But the offence of cyberflashing matches the existing offence of flashing, which is not a consent-based offence. If somebody flashes at someone in public, it does not matter whether the person who sees that flashing has consented to it—it is the intent of the flasher that is the focus of the court. That is why the Law Commission and we have brought the cyberflashing offence forward in the same way, whereas the sharing of intimate images without somebody’s consent relies on the consent to sharing. But I shall say a bit more when we get to that group, if the noble Lord will allow.

[Lord Clement-Jones (LD)]

I am sure that the noble and learned Lord, Lord Garnier, is going to come in, and he knows a great deal more about this than I do. But we are getting into the territory where we talk about whether or not somebody needs to appear in court in order to show consent. That was all that I was trying to point out, in a way—that, if the Minister accepted the amendment on behalf of my noble friend, and then the complainant had to appear in court, why is that not the case with intimate abuse?

[Lord Parkinson of Whitley Bay (Con)]

Perhaps I can respond to the point about intimate abuse when we come on to the next group—that might be helpful.

[Lord Clement-Jones (LD)]

It might be helpful—except for the refusal to accept my noble friend’s amendment.

--- Later in debate ---

[Baroness Merron (Lab)]

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

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

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

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

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

[Lord Parkinson of Whitley Bay (Con)]

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

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

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

[Lord Clement-Jones (LD)]

If the Minister has time, can he actually direct us to that, because it is important that we are clear that it really is captured?

[Lord Parkinson of Whitley Bay (Con)]

In the amendments, if I can, I will. In the meantime, I reassure my noble friend Lady Morgan of Cotes that, as I said in opening, placing these offences in the Sexual Offences Act means that we are also extending the current special measures provisions to these offences, as we heard in our debate on the last group, so that victims can benefit from those in court. The same applies to anonymity provisions, which are so important when something so intimate has been shared without someone’s consent.

I promised in the previous group to outline the difference in the consent basis between this offence and the cyberflashing offence. Both are abhorrent behaviours which need to be addressed in criminal law. Although the levels of harm and distress may be the same in each case, the Law Commission recommended different approaches to take into account the different actions of the perpetrator in each offence. Sharing an intimate image of somebody without their consent is, in and of itself, wrongful, and a violation of their bodily privacy and sexual autonomy. Sending a genital image without the consent of the recipient is not, in and of itself, wrongful; for instance, the example I gave in the previous debate about an artistic performance, or a photograph which depicts a naked protester. If that was sent without the consent of the recipient, it is not always or necessarily harmful. This is an issue which the Law Commission looked at in some detail.

The criminal law must take the culpability of the perpetrator into account. I reassure noble Lords that both we and the Law Commission have looked at these offences considerably, working with the police and prosecutors in doing so. We are confident that the Bill provides the comprehensive protection for victims that we all want to see, including in situations where a perpetrator may claim that it was just a joke.

The terms “photograph” and “film” are defined in proposed new Section 66D(5). That refers to the definition in new Section 66A, which refers to an image which is made or altered in any way

“which appears to be a photograph or film”.

That is where the point I make about photo-reality is captured.

The noble Baroness, Lady Kidron, is right to highlight that this is a matter not just for the criminal law. As we discussed on the previous group, it is also a matter for public education, so that young people and users of any age are aware of the legal boundaries and legal issues at stake here. That is why we have the public education campaigns to which I alluded in the previous group.

Online Safety Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Committee stage
Thursday 22nd June 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

We are watching with interest what is happening in other jurisdictions. If I can furnish the Committee with any information in the area the noble Lord mentions, I will certainly follow up in writing.

[Lord Clement-Jones (LD)]

I have a question, in that case, in respect of the jurisdictions. Why should we have weaker powers for our regulator than others?

[Lord Parkinson of Whitley Bay (Con)]

I do not think that we do. We are doing things differently. Of course, Ofcom will be looking at all these matters in its report, and I am sure that Parliament will have an ongoing interest in them. As jurisdictions around the world continue to grapple with these issues, I am sure that your Lordships’ House and Parliament more broadly will want to take note of those developments.

[Lord Clement-Jones (LD)]

But surely, there is no backstop power. There is the review but there is no backstop which would come into effect on an Ofcom recommendation, is there?

[Lord Parkinson of Whitley Bay (Con)]

We will know once Ofcom has completed its research and examination of these complex issues; we would not want to pre-judge its conclusions.

[Lord Clement-Jones (LD)]

Again, that would require primary legislation.

[Lord Parkinson of Whitley Bay (Con)]

With that, if there are no further questions, I invite the noble Lord to withdraw his amendment.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

Yes, we will ensure that, in looking at this in the context of Scots law, we have the opportunity to see what is being done there and that we are satisfied that all the scenarios are covered. In relation to the noble Baroness’s Amendment 268, the intentional encouragement or assistance of a criminal offence is already captured under Sections 44 to 46 of the Serious Crime Act 2007, so I hope that that satisfies her that that element is covered—but we will certainly look at all of this.

I turn to government Amendment 268AZA, which introduces the new serious self-harm offence, and Amendments 268AZB and 268AZC, tabled by the noble Lords, Lord Allan and Lord Clement-Jones. The Government recognise that there is a gap in the law in relation to the encouragement of non-fatal self-harm. The new offence will apply to anyone carrying out an act which intends to, and is capable of, encouraging or assisting another person seriously to self-harm by means of verbal or electronic communications, publications or correspondence.

I say to the noble Baroness, Lady Finlay of Llandaff, that the new clause inserted by Amendment 268AZA is clear that, when a person sends or publishes a communication that is an offence, it is also clear that, when a person forwards on another person’s communication, that will be an offence too. The new offence will capture only the most serious behaviour and avoid criminalising vulnerable people who share their experiences of self-harm. The preparation of these clauses was informed by extensive consultation with interested groups and campaign bodies. The new offence includes two key elements that constrain the offence to the most culpable offending; namely, that a person’s act must be intended to encourage or assist the serious self-harm of another person and that serious self-harm should amount to grievous bodily harm. If a person does not intend to encourage or assist serious self-harm, as will likely be the case with recovery and supportive material, no offence will be committed. The Law Commission looked at this issue carefully, following evidence from the Samaritans and others, and the implementation will be informed by an ongoing consultation as well.

[Lord Clement-Jones (LD)]

I am sorry to interrupt the Minister, but the Law Commission recommended that the DPP’s consent should be required. The case that the Minister has made on previous occasions in some of the consultations that he has had with us is that this offence that the Government have proposed is different from the Law Commission one, and that is why they have not included the DPP’s consent. I am rather baffled by that, because the Law Commission was talking about a high threshold in the first place, and the Minister is talking about a high threshold of intent. Even if he cannot do so now, it would be extremely helpful to tie that down. As the noble Baroness and my noble friend said, 130 organisations are really concerned about the impact of this.

[Lord Parkinson of Whitley Bay (Con)]

The Law Commission recommended that the consent, but not the personal consent, of the Director of Public Prosecutions should be required. We believe, however, that, because the offence already has tight parameters due to the requirement for an intention to cause serious self-harm amounting to grievous bodily harm, as I have just outlined, an additional safeguard of obtaining the personal consent of the Director of Public Prosecutions is not necessary. We would expect the usual prosecutorial discretion and guidance to provide sufficient safeguards against inappropriate prosecutions in this area. As I say, we will continue to engage with those groups that have helped to inform the drafting of these clauses as they are implemented to make sure that that assessment is indeed borne out.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

If my noble friend will forgive me, I had better refresh my memory of what he said—it was some time ago—and follow up in writing.

[Lord Clement-Jones (LD)]

My Lords, I will be extremely brief. There is much to chew on in the Minister’s speech and this was a very useful debate. Some of us will be happier than others; the noble Baroness, Lady Buscombe, will no doubt look forward to the digital markets Bill and I will just have to keep pressing the Minister on the Data Protection and Digital Information Bill.

There is a fundamental misunderstanding about digital identity theft. It will not necessarily always be fraud that is demonstrated—the very theft of the identity is designed to be the crime, and it is not covered by the Fraud Act 2006. I am delighted that the Minister has agreed to talk further with the noble Baroness, Lady Kennedy, because that is a really important area. I am not sure that my noble friend will be that happy with the response, but he will no doubt follow up with the Minister on his amendments.

The Minister made a very clear statement on the substantive aspect of the group, the new crime of encouraging self-harm, but further clarification is still needed. We will look very carefully at what he said in relation to what the Law Commission recommended, because it is really important that we get this right. I know that the Minister will talk further with the noble Baroness, Lady Finlay, who is very well versed in this area. In the meantime, I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, this is a real hit-and-run operation from the noble Lord, Lord Stevenson. He has put down an amendment on my favourite subject in the last knockings of the Bill. It is totally impossible to deal with this now—I have been thinking and talking about the whole area of AI governance and ethics for the past seven years—so I am not going to try. It is important, and the advisory committee under Clause 139 should take it into account. Actually, this is much more a question of authenticity and verification than of content. Trying to work out whether something is ChatGPT or GPT-4 content is a hopeless task; you are much more likely to be able to identify whether these are automated users such as chatbots than you are to know about the content itself.

I will leave it there. I missed the future-proofing debate, which I would have loved to have been part of. I look forward to further debates with the noble Viscount, Lord Camrose, on the deficiencies in the White Paper and to the Prime Minister’s much more muscular approach to AI regulation in future.

[Lord Parkinson of Whitley Bay (Con)]

I am sure that the noble Lord, Lord Stevenson of Balmacara, is smiling over a sherry somewhere about the debate he has facilitated. His is a useful probing amendment and we have had a useful discussion.

The Government certainly recognise the potential challenges posed by artificial intelligence and digitally manipulated content such as deepfakes. As we have heard in previous debates, the Bill ensures that machine-generated content on user-to-user services created by automated tools or machine bots will be regulated where appropriate. Clause 49(4)(b) means that machine-generated content is regulated unless the bot or automated tool producing the content is controlled by the provider of the service.

The labelling of this content via draft legislation is not something to which I can commit today. The Government’s AI regulation White Paper sets out the principles for the responsible development of artificial intelligence in the UK. These principles, such as safety, transparency and accountability, are at the heart of our approach to ensuring the responsible development and use of AI. As set out in the White Paper, we are building an agile approach that is designed to be adaptable in response to emerging developments. We do not wish to introduce a rigid, inflexible form of legislation for what is a flexible and fast-moving technology.

The public consultation on these proposals closed yesterday so I cannot pre-empt our response to it. The Government’s response will provide an update. I am joined on the Front Bench by the Minister for Artificial Intelligence and Intellectual Property, who is happy to meet with the noble Baroness, Lady Kidron, and others before the next stage of the Bill if they wish.

Beyond labelling such content, I can say a bit to make it clear how the Bill will address the risks coming from machine-generated content. The Bill already deals with many of the most serious and illegal forms of manipulated media, including deepfakes, when they fall within scope of services’ safety duties regarding illegal content or content that is potentially harmful to children. Ofcom will recommend measures in its code of practice to tackle such content, which could include labelling where appropriate. In addition, the intimate image abuse amendments that the Government will bring forward will make it a criminal offence to send deepfake images.

In addition to ensuring that companies take action to keep users safe online, we are taking steps to empower users with the skills they need to make safer choices through our work on media literacy. Ofcom, for example, has an ambitious programme of work through which it is funding several initiatives to build people’s resilience to harm online, including initiatives designed to equip people with the skills to identify disinformation. We are keen to continue our discussions with noble Lords on media literacy and will keep an open mind on how it might be a tool for raising awareness of the threats of disinformation and inauthentic content.

With gratitude to the noble Lords, Lord Stevenson and Lord Knight, and everyone else, I hope that the noble Lord, Lord Knight, will be content to withdraw his noble friend’s amendment.

Online Safety Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Committee stage
Thursday 22nd June 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

When I saw the noble Lord, Lord Foster of Bath, and the noble Baroness, Lady Armstrong of Hill Top, in their places, I wondered whether they were intending to raise these points. I will certainly take on board what the noble Lord says and, if there is further information I can furnish your Lordships with, I certainly will.

The noble Baroness, Lady Kidron, asked whether the powers can be used on out-of-scope services. “No” is the direct answer to her direct question. The powers can be used only in relation to regulated services, but if sites not regulated by the Bill are publishing illegal content, existing law enforcement powers—such as those frequently deployed in cases of copyright infringement—can be used. I could set out a bit more in writing if that would be helpful.

My noble friend Lord Bethell’s amendments seek to set out in the Bill that Ofcom will be able to make a single application to the courts for an order enabling business disruption measures that apply against multiple platforms and operators. I must repeat, as he anticipated, the point made by my right honourable friend Chris Philp that the civil procedure rules allow for a multi-party claim to be made. These rules permit any number of claimants or defendants and any number of claims to be covered by one claim form. The overriding objective of the civil procedure rules is that cases are dealt with justly and proportionately. I want to reassure my noble friend that the Government are confident that the civil procedure rules will provide the necessary flexibility to ensure that services can be blocked or restricted.

The amendment in the name of the noble Lord, Lord Allan of Hallam, seeks to clarify what services might be subject to access restriction orders by removing the two examples provided in the Bill: internet access services and application stores. I would like to reassure him that these are simply indicative examples, highlighting two kinds of service on which access restriction requirements may be imposed. It is not an exhaustive list. Orders could be imposed on any services that meet the definition—that is, a person who provides a facility that is able to withdraw, adapt or manipulate it in such a way as to impede access to the regulated service in question. This provides Ofcom with the flexibility to identify where business disruption measures should be targeted, and it future-proofs the Bill by ensuring that the power remains functional and effective as technologies develop.

As the noble Lord highlighted, these are significant powers that can require that services be blocked in the UK. Clearly, limiting access to services in this way substantially affects the business interests of the service in question and the interests of the relevant third-party service, and it could affect users’ freedom of expression. It is therefore essential that appropriate safeguards are included and that due process is followed. That is why Ofcom will be required to seek a court order to be able to use these powers, ensuring that the courts have proper oversight.

To ensure that due process is upheld, an application by the regulator for a court order will have to specify the non-compliant provider, the grounds of the order and the steps that Ofcom considers should be imposed on the third parties in order to withdraw services and block users’ access. These requirements will ensure that the need to act quickly to tackle harm is appropriately balanced against upholding fundamental rights.

It might be useful to say a little about how blocking works—

[Lord Clement-Jones (LD)]

Before the Minister does that, can he say whether he envisages that operating against VPNs as well?

[Lord Parkinson of Whitley Bay (Con)]

If I may, I will take advice on that and write to the noble Lord.

[Lord Clement-Jones (LD)]

That would be useful.

[Lord Parkinson of Whitley Bay (Con)]

Yes; he made a helpful point, and I will come back on it.

Online Safety Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Committee stage
Tuesday 23rd May 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Bethell, who is clearly passionate about this aspect. As the noble Baroness, Lady Harding, said, this is one of the most important groups of amendments that we have to debate on the Bill, even though we are on day eight of Committee. As she said, it is about the right assignment of responsibilities, so it is fundamental to the way that the Bill will operate.

My noble friend Lord Allan brilliantly summed up many of the arguments, and he has graphically described the problem of ministerial overreach, as did the noble Baroness, Lady Harding. We on these Benches strongly support the amendments put forward by the noble Lord, Lord Stevenson, and those put forward by the noble Baroness, Lady Stowell. Obviously, there is some difference of emphasis. They each follow the trail of the different committees of which their proposers were members, which is entirely understandable. I recall that the noble Lord, Lord Gilbert, was the hinge between the two committees—and brilliantly he did that. I very much hope that, when we come back at the next stage, if the Minister has not moved very far, we will find a way to combine those two strands. I think they are extremely close—many noble Lords have set out where we are on accountability and oversight.

Strangely, we are not trying to get out of the frying pan of the Secretary of State being overbearing and move to where we have no parliamentary oversight. Both the noble Baroness, Lady Stowell, and the noble Lord, Lord Stevenson, are clearly in favour of greater oversight of Ofcom. The question is whether it is oversight of the codes and regulation or of Ofcom itself. I think we can find a way to combine those two strands. In that respect, I entirely agree with the noble Baroness, Lady Fox: it is all about making sure that we have the right kind of oversight.

I add my thanks to Carnegie UK. The noble Lord, Lord Stevenson, and the noble Baroness, Lady Stowell, set out the arguments, and we have the benefit of the noble Baroness’s letter to the Secretary of State of 30 January, which she mentioned in her speech. They have set out very clearly where speakers in this debate unanimously want to go.

The Government have suggested some compromise on Clause 39. As the noble Lord, Lord Stevenson said, we have not seen any wording for that, but I think it is highly unlikely that that, by itself, will satisfy the House when we come to Report.

There are many amendments here which deal with the Secretary of State’s powers, but I believe that the key ones are the product of both committees, which is about the Joint Committee. If noble Lords read the Government’s response to our Joint Committee on the draft Bill, they will see that the arguments given by the Government are extremely weak. I think it was the noble Baroness, Lady Stowell, who used the phrase “democratic deficit”. That is exactly what we are not seeking: we are trying to open this out and make sure we have better oversight and accountability. That is the goal of the amendments today. We have heard from the noble Viscount, Lord Colville, about the power of lobbying by companies. Equally, we have heard about how the Secretary of State can be overbearing. That is the risk we are trying to avoid. I very much hope that the Minister sees his way to taking on board at least some of whichever set of amendments he prefers.

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

My Lords, the amendments concern the independence of Ofcom and the role of parliamentary scrutiny. They are therefore indeed an important group, as those things will be vital to the success of the regime that the Bill sets up. Introducing a new, ground-breaking regime means balancing the need for regulatory independence with a transparent system of checks and balances. The Bill therefore gives powers to the Secretary of State comprising a power to direct Ofcom to modify a code of practice, a power to issue a statement of strategic priorities and a power to issue non-binding guidance to the regulator.

These powers are important but not novel; they have precedent in the Communications Act 2003, which allows the Secretary of State to direct Ofcom in respect of its network and spectrum functions, and the Housing and Regeneration Act 2008, which allows the Secretary of State to make directions to the Regulator of Social Housing to amend its standards. At the same time, I agree that it is important that we have proportionate safeguards in place for the use of these powers, and I am very happy to continue to have discussions with noble Lords to make sure that we do.

Amendment 110, from the noble Lord, Lord Stevenson, seeks to introduce a lengthier process regarding parliamentary approval of codes of practice, requiring a number of additional steps before they are laid in Parliament. It proposes that each code may not come into force unless accompanied by an impact assessment covering a range of factors. Let me reassure noble Lords that Ofcom is already required to consider these factors; it is bound by the public sector equality duty under the Equality Act 2010 and the Human Rights Act 1998 and must ensure that the regime and the codes of practice are compliant with rights under the European Convention on Human Rights. It must also consult experts on matters of equality and human rights when producing its codes.

Amendment 110 also proposes that any designated Select Committee in either House has to report on each code and impact assessment before they can be made. Under the existing process, all codes must already undergo scrutiny by both Houses before coming into effect. The amendment would also introduce a new role for the devolved Administrations. Let me reassure noble Lords that the Government are working closely with them already and will continue to do so over the coming months. As set out in Schedule 5 to the Scotland Act 1998, however, telecommunications and thereby internet law and regulation is a reserved policy area, so input from the devolved Administrations may be more appropriately sought through other means.

Amendments 111, 113, 114, 115, and 117 to 120 seek to restrict or remove the ability of the Secretary of State to issue directions to Ofcom to modify draft codes of practice. Ofcom has great expertise as a regulator, as noble Lords noted in this debate, but there may be situations where a topic outside its remit needs to be reflected in a code of practice. In those situations, it is right for the Government to be able to direct Ofcom to modify a draft code. This could, for example, be to ensure that a code reflects advice from the security services, to which Ofcom does not have access. Indeed, it is particularly important that the Secretary of State be able to direct Ofcom on matters of national security and public safety, where the Government will have access to information which Ofcom will not.

I have, however, heard the concerns raised by many in your Lordships’ House, both today and on previous occasions, that these powers could allow for too much executive control. I can assure your Lordships that His Majesty’s Government are committed to protecting the regulatory independence of Ofcom, which is vital to the success of the framework. With this in mind, we have built a number of safeguards into the use of the powers, to ensure that they do not impinge on regulatory independence and are used only in limited circumstances and for the appropriate reasons.

I have heard the strong feelings expressed that this power must not unduly restrict regulatory independence, and indeed share that feeling. In July, as noble Lords noted, the Government announced our intention to make substantive changes to the power; these changes will make it clear that the power is for use only in exceptional circumstances and will replace the “public policy” wording in Clause 39 with a defined list of reasons for which a direction can be made. I am happy to reiterate that commitment today, and to say that we will be making these changes on Report when, as the noble Lord, Lord Clement-Jones, rightly said, noble Lords will be able to see the wording and interrogate it properly.

Additionally, in light of the debate we have just had today—

Online Safety Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Committee stage
Tuesday 16th May 2023 Lords Chamber

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

My Lords, the amendments in this group consider the role of collaboration and consultation in Ofcom’s approach. The proposals range in their intent, and include mandating additional roles for young people in the framework, adding new formal consultation requirements, and creating powers for Ofcom to work with other organisations.

I reassure noble Lords that the Government take these concerns extremely seriously. That is why the Bill already places the voices of experts, users and victims at the heart of the regime it establishes. In fact, the intent of many of the amendments in this group will already be delivered. That includes Ofcom working with others effectively to deliver the legislation, consulting on draft codes of practice, and having the ability to designate specific regulatory functions to other bodies where appropriate. Where we can strengthen the voices of users, victims or experts—without undermining existing processes, reducing the regulator’s independence or causing unacceptable delays—the Government are open to this. That is why I am moving the amendment today. However, as we have heard in previous debates, this is already a complex regulatory framework, and there is a widespread desire for it to be implemented quickly. Therefore, it is right that we guard against creating additional or redundant requirements which could complicate the regime or unduly delay implementation.

I turn to the amendment in my name. As noble Lords know, Ofcom will develop codes of practice setting out recommended measures for companies to fulfil their duties under the Bill. When developing those codes, Ofcom must consult various persons and organisations who have specific knowledge or expertise related to online harms. This process will ensure that the voices of users, experts and others are reflected in the codes, and, in turn, that the codes contain appropriate and effective measures.

One of the most important goals of the Bill, as noble Lords have heard me say many times, is the protection of children. It is also critical that the codes reflect the views of victims of online abuse, as well as the expertise of those who have experience in managing them. Therefore, the government amendment seeks to name the Commissioner for Victims and Witnesses, the domestic abuse commissioner and the Children’s Commissioner as statutory consultees under Clause 36(6). Ofcom will be required to consult those commissioners when preparing or amending a code of practice.

Listing these commissioners as statutory consultees will guarantee that the voices of victims and those who are disproportionately affected by online abuse are represented when developing codes of practice. This includes, in particular, women and girls—following on from our debate on the previous group—as well as children and vulnerable adults. This will ensure that Ofcom’s codes propose specific and targeted measures, such as on illegal content and content that is harmful to children, that platforms can take to address abuse effectively. I therefore hope that noble Lords will accept it.

I will say a little about some of the other amendments in this group before noble Lords speak to them. I look forward to hearing how they introduce them.

I appreciate the intent of Amendment 220E, tabled by the noble Lord, Lord Clement-Jones, and my noble friend Lady Morgan of Cotes, to address the seriousness of the issue of child sexual exploitation and abuse online. This amendment would allow Ofcom to designate an expert body to tackle such content. Where appropriate and effective, Section 1(7) of the Communications Act 2003 and Part II of the Deregulation and Contracting Out Act 1994 provide a route for Ofcom to enter into co-regulatory arrangements under the online safety framework.

There are a number of organisations that could play a role in the future regulatory framework, given their significant experience and expertise on the complex and important issue of tackling online child sexual exploitation and abuse. This includes the Internet Watch Foundation, which plays a pivotal role in the detection and removal of child sexual abuse material and provides vital tools to support its members to detect this abhorrent content.

A key difference from the proposed amendment is that the existing route, following consultation with Ofcom, requires an order to be made by a Minister, under the Deregulation and Contracting Out Act 1994, before Ofcom can authorise a co-regulator to carry out regulatory functions. Allowing Ofcom to do this, without the need for secondary legislation, would allow Ofcom to bypass existing parliamentary scrutiny when contracting out its regulatory functions under the Bill. By contrast, the existing route requires a draft order to be laid before, and approved by, each House of Parliament.

The noble Lord, Lord Knight of Weymouth, tabled Amendment 226, which proposes a child user advocacy body. The Government are committed to the interests of child users being represented and protected, but we believe that this is already achieved through the Bill’s existing provisions. There is a wealth of experienced and committed representative groups who are engaged with the regulatory framework. As the regulator, Ofcom will also continue to consult widely with a range of interested parties to ensure that it understands the experience of, and risks affecting, children online. Further placing children’s experiences at the centre of the framework, the Government’s Amendment 98A would name the Children’s Commissioner as a statutory consultee for the codes of practice. The child user advocacy body proposed in the noble Lord’s Amendment 226 may duplicate the Children’s Commissioner’s existing functions, which would create uncertainty, undermining the effectiveness of the Children’s Commissioner’s Office. The Government are confident that the Children’s Commissioner will effectively use her statutory duties and powers to understand children’s experiences of the digital realm.

For the reasons that I have set out, I am confident that children’s voices will be placed at the heart of the regime, with their interests defended and advocated for by the regulator, the Children’s Commissioner, and through ongoing engagement with civil society groups.

Similarly, Amendment 256, tabled by the noble Baroness, Lady Bennett of Manor Castle, seeks to require that any Ofcom advisory committees established by direction from the Secretary of State under Clause 155 include at least two young people. Ofcom has considerable experience in setting up committees of this kind. While there is nothing that would preclude committee membership from including at least two young people, predetermining the composition of any committee would not give Ofcom the necessary space and independence to run a transparent process. We feel that candidates should be appointed based on relevant understanding and technical knowledge of the issue in question. Where a board is examining issues with specific relevance to the interests of children, we would expect the committee membership to reflect that appropriately.

I turn to the statement of strategic priorities. As I hope noble Lords will agree, future changes in technology will likely have an impact on the experience people have online, including the nature of online harms. As provided for by Clause 153, the statement of strategic priorities will allow the Secretary of State to set out a statement of the Government’s strategic priorities in relation to online safety. This ensures that the Government can respond to changes in the digital and regulatory landscape at a strategic level. A similar power exists for telecommunications, the management of the radio spectrum, and postal services.

Amendments 251 to 253 seek to place additional requirements on the preparation of a statement before it can be designated. I reassure noble Lords that the existing consultation and parliamentary approval requirements allow for an extensive process before a statement can be designated. These amendments would introduce unnecessary steps and would move beyond the existing precedent in the Communications Act when making such a statement for telecommunications, the management of the radio spectrum, and postal services.

Finally, Amendment 284, tabled by the noble Lord, Lord Stevenson of Balmacara, proposes changes to Clause 171 on Ofcom’s guidance on illegal content judgments. Ofcom is already required to consult persons it considers appropriate before producing or revising the guidance, which could include the groups named in the noble Lord’s amendment. This amendment would oblige Ofcom to run formal public consultations on the illegal content guidance at two different stages: first, at a formative stage in the drafting process, and then before publishing a final version. These consultations would have to be repeated before subsequently amending or updating the guidance in any way. This would impose duplicative, time-consuming requirements on the regulator to consult, which are excessive when looking at other comparable guidance. The proposed consultations under this amendment would ultimately delay the publication of this instrumental guidance.

I will listen to what noble Lords have to say when they speak to their amendments, but these are the reasons why, upon first reading, we are unpersuaded by them.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for opening the group. This is a slightly novel procedure: he has rebutted our arguments before we have even had a chance to put them—what is new? I hope he has another speech lined up for the end which accepts some of the arguments we put, to demonstrate that he has listened to all the arguments made in the debate.

I will speak mainly to Amendments 220E and 226, ahead of the noble Baroness, Lady Kidron; I understand that the noble Baroness, Lady Merron, will be speaking at the end of the group to Amendment 226. I am very grateful to the noble Baroness, Lady Morgan, for signing Amendment 220E; I know she feels very strongly about this issue as well.

As the Minister said, this amendment is designed to confirm the IWF’s role as the recognised body for dealing with notice and take-down procedures for child sexual abuse imagery in the UK and to ensure that its long experience and expertise continues to be put to best use. In our view, any delay in establishing the roles and responsibilities of expert organisations such as the IWF in working with Ofcom under the new regulatory regime risks leaving a vacuum in which the risks to children from this hateful form of abuse will only increase. I heard what the Minister said about the parliamentary procedure, but that is a much slower procedure than a designation by Ofcom, so I think that is going to be one of the bones of contention between us.

The Internet Watch Foundation is a co-regulatory body with over 25 years of experience working with the internet industry, law enforcement and government to prevent the uploading of, and to disable public access to, known child sexual abuse, and to secure the removal of indecent images and videos of children from the internet. The organisation has had some considerable success over the last 25 years, despite the problem appearing to be getting worse globally.

In 2022, it succeeded in removing a record 255,000 web pages containing child sexual abuse. It has also amassed a database of more than 1.6 million unique hashes of child sexual abuse material, which has been provided to the internet industry to keep its platforms free from such material. In 2020, the Independent Inquiry into Child Sexual Abuse concluded that, in the UK, the IWF

“sits at the heart of the national response to combating the proliferation of indecent images of children. It is an organisation that deserves to be acknowledged publicly as a vital part of how, and why, comparatively little child sexual abuse material is hosted in the UK”.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

I am grateful to noble Lords who have spoken to their amendments. Regarding the lead amendment in the group, I take on board what was said about its inevitable pre-emption—something that I know all too well from when the boot is on the other foot in other groups. However, I have listened to the points that were made and will of course respond.

I join the tributes rightly paid by noble Lords to the Internet Watch Foundation. The Government value its work extremely highly and would support the use of its expertise and experience in helping to deliver the aims of the Bill. My noble friend Lady Morgan of Cotes is right to say that it is on the front line of this work and to remind us that it encounters some of the most horrific and abhorrent content in the darkest recesses of the internet—something that I know well from my time as an adviser at the Home Office, as well as in this capacity now. Both the Secretary of State for Science, Innovation and Technology and the Minister for Safeguarding at the Home Office recently provided a foreword to the foundation’s latest annual report.

Clearly, Ofcom will need a wide variety of relationships with a range of organisations. Ofcom has been in regular contact with the Internet Watch Foundation, recognising its significant role in supporting the objectives of online safety regulation, and is discussing a range of options to make the best use of its expertise. The noble Lord, Lord Clement-Jones, asked what consultation and discussion is being had. We support the continuation of that engagement and are in discussions with the Internet Watch Foundation ourselves to understand how it envisages its role in supporting the regulatory environment. No decisions have been made on the co-regulatory role that other organisations may play. The Government will work with Ofcom to understand where it may be effective and beneficial to delivering the regulatory framework. Careful assessment of the governance, independence and funding of any organisations would be needed if co-designation were to be considered, but officials from the Department for Science, Innovation and Technology and the Home Office are in discussion with the IWF in relation to a memorandum of understanding to support ongoing collaboration.

On the designation of regulatory functions, we are satisfied that the powers under the Communications Act and the Deregulation and Contracting Out Act are sufficient, should other bodies be required to deliver specific aspects of the regime, so we do not see a need to amend the Bill in the way the amendments in this group suggest. Those Acts require an order from the Minister in order to designate any functions. The Minister has to consult Ofcom before making the order, and that is the mechanism that was used to appoint the Advertising Standards Authority to regulate broadcast advertising. It remains appropriate for Parliament to scrutinise the delivery of these important regulatory functions; accordingly, such an order cannot be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.

The noble Baroness, Lady Merron, dwelt on the decision not to include a child user advocacy body. As I said in my earlier remarks and in relation to other groups, the Bill ensures that children’s voices will be heard and that what they say will be acted on. Ofcom will have statutory duties requiring it to understand the opinions and experiences of users, including children, by consulting widely when developing its codes. Ofcom will also have the flexibility to establish other mechanisms for conducting research about users’ experience. Additionally, the super-complaints process, which we began discussing this afternoon, will make sure that entities, including those that represent the interests of children, will have their voices heard and will help Ofcom recognise and eliminate systemic failings.

We are also naming the Children’s Commissioner as a statutory consultee for Ofcom in developing its codes of practice. A further new child user advocacy body would encroach on the wider statutory functions of the Children’s Commissioner. Both bodies would have similar responsibilities and powers to represent the interests of child users of regulated services, to protect and promote the interests of child users of regulated services, and to be a statutory consultee for the drafting and amendment of Ofcom’s codes of practice.

The noble Baroness, Lady Kidron, when discussing the input of the Children’s Commissioner into the regulatory framework, suggested that it was a here and now issue. She is right: the Children’s Commissioner will represent children’s views to Ofcom in preparing the codes of practice to ensure that they are fully informing the regime, but the commissioner will also have a continuing role, as they will be the statutory consultee on any later amendments to the codes of practice relating to children. That will ensure that they can engage in the ongoing development of the regime and can continue to feed in insights on emerging risks identified through the commissioner’s statutory duty to understand children’s experiences.

The Bill further ensures that new harms and risks to children are proactively identified by requiring that Ofcom make arrangements to undertake research about users’ experiences on regulated services. This will build on the significant amount of research that Ofcom already does, better to understand children’s experience online, particularly their experiences of online harms.

The super-complaints process will enable an eligible entity to make a complaint to Ofcom regarding a provider or providers that cause significant harm or significant adverse impact on users, including children. This will help Ofcom to recognise and eliminate systemic failings, including those relating to children, and will ensure that children’s views and voices continue to inform the regime as it is developed.

The Bill will also require that Ofcom undertake consumer consultation in relation to regulated services. This will, in effect, expand the scope of the Communications Consumer Panel to online safety matters, and will ensure that the needs of users, including children, are at the heart of Ofcom’s regulatory approach.

I draw noble Lords’ attention to the provisions of Clause 141(2), which states that Ofcom must make arrangements to ascertain

“the experiences of United Kingdom users of regulated services”.

That, of course, includes children. I hope, therefore, that noble Lords will be satisfied that the voices of children are indeed being listened to throughout the operation of the Bill. However, we have high regard for the work of the Internet Watch Foundation. I hope that noble Lords will be willing not to press their amendments—after the noble Lord, Lord Clement-Jones, asks his question.

[Lord Clement-Jones (LD)]

My Lords, I am in the slightly strange position of not having moved the amendment, but I want to quickly respond. I was slightly encouraged by what the Minister said about Ofcom having been in regular contact with the IWF. I am not sure that that is mutual; maybe Ofcom thinks it is in good contact with the IWF, but I am not sure the IWF thinks it is in good contact with Ofcom. However, I am encouraged that the Minister at least thinks that that has been the case and that he is encouraging consultation and the continuation of engagement.

Online Safety Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Committee stage
Tuesday 16th May 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

I refer to the meeting my noble friend Lord Camrose offered; we will be able to go through and unpick the issues raised in that group of amendments, rather than looping back to that debate now.

[Lord Clement-Jones (LD)]

The Minister is going through the structure of the Bill and saying that what is in it is adequate to prevent the kinds of harms to vulnerable adults that we talked about during this debate. Essentially, it is a combination of adherence to terms of service and user-empowerment tools. Is he saying that those two aspects are adequate to prevent the kinds of harms we have talked about?

[Lord Parkinson of Whitley Bay (Con)]

Yes, they are—with the addition of what I am coming to. In addition to the duty for companies to consider the role of algorithms, which I talked about, Ofcom will have a range of powers at its disposal to help it assess whether providers are fulfilling their duties, including the power to require information from providers about the operation of their algorithms. The regulator will be able to hold senior executives criminally liable if they fail to ensure that their company is providing Ofcom with the information it requests.

However, we must not restrict users’ right to see legal content and speech. These amendments would prescribe specific approaches for companies’ treatment of legal content accessed by adults, which would give the Government undue influence in choosing, on adult users’ behalf, what content they see—

Online Safety Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Committee stage
Tuesday 9th May 2023 Lords Chamber

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

I am very grateful to the noble Lords who have spoken on the amendments in this group, both this afternoon and last Tuesday evening. As this is a continuation of that debate, I think my noble friend Lord Moylan is technically correct still to wish the noble Baroness, Lady Kidron, a happy birthday, at least in procedural terms.

We have had a very valuable debate over both days on the Bill’s approach to holding platforms accountable to their users. Amendments 33B, 41A, 43ZA, 138A and 194A in the names of the noble Lords, Lord Lipsey and Lord McNally, and Amendment 154 in the name of the noble Lord, Lord Stevenson of Balmacara, seek to bring back the concept of legal but harmful content and related adult risk assessments. They reintroduce obligations for companies to consider the risk of harm associated with legal content accessed by adults. As noble Lords have noted, the provisions in the Bill to this effect were removed in another place, after careful consideration, to protect freedom of expression online. In particular, the Government listened to concerns that the previous legal but harmful provisions could create incentives for companies to remove legal content from their services.

In place of adult risk assessments, we introduced new duties on category 1 services to enable users themselves to understand how these platforms treat different types of content, as set out in Clauses 64 and 65. In particular, this will allow Ofcom to hold them to account when they do not follow through on their promises regarding content they say that they prohibit or to which they say that they restrict access. Major platforms already prohibit much of the content listed in Clause 12, but these terms of service are often opaque and not consistently enforced. The Bill will address and change that.

I would also like to respond to concerns raised through Amendments 41A and 43ZA, which seek to ensure that the user empowerment categories cover the most harmful categories of content to adults. I reassure noble Lords that the user empowerment list reflects input from a wide range of interested parties about the areas of greatest concern to users. Platforms already have strong commercial incentives to tackle harmful content. The major technology companies already prohibit most types of harmful and abusive content. It is clear that most users do not want to see that sort of content and most advertisers do not want their products advertised alongside it. Clause 12 sets out that providers must offer user empowerment tools with a specified list of content to the extent that it is proportionate to do so. This will be based on the size or capacity of the service as well as the likelihood that adult users will encounter the listed content. Providers will therefore need internally to assess the likelihood that users will encounter the content. If Ofcom disagrees with the assessment that a provider has made, it will have the ability to request information from providers for the purpose of assessing compliance.

Amendments 44 and 158, tabled by the right reverend Prelate the Bishop of Oxford, seek to place new duties on providers of category 1 services to produce an assessment of their compliance with the transparency, accountability, freedom of expression and user empowerment duties as set out in Clauses 12, 64 and 65 and to share their assessments with Ofcom. I am sympathetic to the aim of ensuring that Ofcom can effectively assess companies’ compliance with these duties. But these amendments would enable providers to mark their own homework when it comes to their compliance with the duties in question. The Bill has been designed to ensure that Ofcom has responsibility for assessing compliance and that it can obtain sufficient information from all regulated services to make judgments about compliance with their duties. The noble Baroness, Lady Kidron, asked about this—and I think the noble Lord, Lord Clement-Jones, is about to.

[Lord Clement-Jones (LD)]

I hope the Minister will forgive me for interrupting, but would it not be much easier for Ofcom to assess compliance if a risk assessment had been carried out?

[Lord Parkinson of Whitley Bay (Con)]

I will come on to say a bit more about how Ofcom goes about that work.

The Bill will ensure that providers have the information they need to understand whether they are in compliance with their duties under the Bill. Ofcom will set out how providers can comply in codes of practice and guidance that it publishes. That information will help providers to comply, although they can take alternative action if they wish to do so.

The right reverend Prelate’s amendments also seek to provide greater transparency to Ofcom. The Bill’s existing duties already account for this. Indeed, the transparency reporting duties set out in Schedule 8 already enable Ofcom to require category 1, 2A and 2B services to publish annual transparency reports with relevant information, including about the effectiveness of the user empowerment tools, as well as detailed information about any content that platforms prohibit or restrict, and the application of their terms of service.

Amendments 159, 160 and 218, tabled by the noble Lord, Lord Stevenson, seek to require user-to-user services to create and abide by minimum terms of service recommended by Ofcom. The Bill already sets detailed and binding requirements on companies to achieve certain outcomes. Ofcom will set out more detail in codes of practice about the steps providers can take to comply with their safety duties. Platforms’ terms of service will need to provide information to users about how they are protecting users from illegal content, and children from harmful content.

These duties, and Ofcom’s codes of practice, ensure that providers take action to protect users from illegal content and content that is harmful to children. As such, an additional duty to have adequate and appropriate terms of service, as envisaged in the amendments, is not necessary and may undermine the illegal and child safety duties.

I have previously set out why we do not agree with requiring platforms to set terms of service for legal content. In addition, it would be inappropriate to delegate this much power to Ofcom, which would in effect be able to decide what legal content adult users can and cannot see.

Amendment 155, tabled by my noble friend Lord Moylan, seeks to clarify whether and how the Bill makes the terms of service of foreign-run platforms enforceable by Ofcom. Platforms’ duties under Clause 65 apply only to the design, operation and use of the service in the United Kingdom and to UK users, as set out in Clause 65(11). Parts or versions of the service which are used in foreign jurisdictions—

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[Lord Parkinson of Whitley Bay (Con)]

That is right. Platforms are not in the public sector, so the public sector equality duty does not apply to them. However, that duty applies to Ofcom, taking into account the ways in which people with certain characteristics can be affected through the codes of practice and the user empowerment duties that it is enforcing. So it suffuses the thinking there, but the duty is on Ofcom as a public sector body.

We talk later in Clause 12(11) of some of the characteristics that are similar in approach to the protected characteristics in the Equality Act 2010. I will come to that again shortly in response to points made by noble Lords.

I want to say a bit about the idea of there being a cliff edge at the age of 18. This was raised by a number of noble Lords, including the noble Lord, Lord Griffiths, my noble friends Lady Morgan and Lady Harding and the noble Baroness, Lady Kidron. The Bill’s protections recognise that, in law, people become adults when they turn 18—but it is not right to say that there are no protections for young adults. As noble Lords know, the Bill will provide a triple shield of protection, of which the user empowerment duties are the final element.

The Bill already protects young adults from illegal content and content that is prohibited in terms and conditions. As we discussed in the last group, platforms have strong commercial incentives to prohibit content that the majority of their users do not want to see. Our terms of service duties will make sure that they are transparent about and accountable for how they treat this type of content.

[Lord Clement-Jones (LD)]

My Lords, what distinguishes young adults from older adults in what the Minister in saying?

[Lord Parkinson of Whitley Bay (Con)]

In law, there is nothing. I am engaging with the point that there is no cliff edge. There are protections for people once they turn 18. People’s tastes and risk appetites may change over time, but there are protections in the Bill for people of all ages.

[Lord Clement-Jones (LD)]

Surely, this is precisely the point that the noble Baroness, Lady Kidron, was making. As soon as you reach 18, there is no graduation at all. There is no accounting for vulnerable adults.

[Lord Parkinson of Whitley Bay (Con)]

There is not this cliff edge which noble Lords have feared—that there are protections for children and then, at 18, a free for all. There are protections for adult users—young adults, older adults, adults of any age—through the means which I have just set out: namely, the triple shield and the illegal content provisions. I may have confused the noble Lord in my attempt to address the point. The protections are there.

[Lord Clement-Jones (LD)]

There is an element of circularity to what the Minister is saying. This is precisely why we are arguing for the default option. It allows this vulnerability to be taken account of.

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[Lord Clement-Jones (LD)]

Before the Minister stands up—a new phrase—can he confirm that it is perfectly valid to have a choice to lift the user empowerment tool, just as it is to impose it? Choice would still be there if our amendments were accepted.

[Lord Parkinson of Whitley Bay (Con)]

It would be, but we fear the chilling effect of having the choice imposed on people. As the noble Baroness, Lady Fox, rightly put it, one does not know what one has not encountered until one has engaged with the idea. At the age of 18, people are given the choice to decide what they encounter online. They are given the tools to ensure that they do not encounter it if they do not wish to do so. As the noble Lord has heard me say many times, the strongest protections in the Bill are for children. We have been very clear that the Bill has extra protections for people under the age of 18, and it preserves choice and freedom of expression online for adult users—young and old adults.

My noble friend Lady Buscombe asked about the list in Clause 12(11). We will keep it under constant review and may consider updating it should compelling evidence emerge. As the list covers content that is legal and designed for adults, it is right that it should be updated by primary legislation after a period of parliamentary scrutiny.

Amendments 42 and 38A, tabled by the noble Lords, Lord Stevenson of Balmacara and Lord Knight of Weymouth, respectively, seek to change the scope of user empowerment content features. Amendment 38A seeks to expand the user empowerment content features to include the restriction of content the provenance of which cannot be authenticated. Amendment 42 would apply features to content that is abusive on the basis of characteristics protected under the Equality Act 2010.

The user empowerment content list reflects areas where there is the greatest need for users to be offered choice about reducing their exposure to types of content. While I am sympathetic to the intention behind the amendments, I fear they risk unintended consequences for users’ rights online. The Government’s approach recognises the importance of having clear, enforceable and technically feasible duties that do not infringe users’ rights to free expression. These amendments risk undermining this. For instance, Amendment 38A would require the authentication of the provenance of every piece of content present on a service. This could have severe implications for freedom of expression, given its all-encompassing scope. Companies may choose not to have anything at all.

Online Safety Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Committee stage
Tuesday 2nd May 2023 Lords Chamber

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

My Lords, I join in the chorus of good wishes to the bungee-jumping birthday Baroness, Lady Kidron. I know she will not have thought twice about joining us today in Committee for scrutiny of the Bill, which is testament to her dedication to the cause of the Bill and, more broadly, to protecting children online. The noble Lord, Lord Clement-Jones, is right to note that we have already had a few birthdays along the way; I hope that we get only one birthday each before the Bill is finished.

[Lord Clement-Jones (LD)]

My birthday is in October, so I hope not.

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[Lord Clement-Jones (LD)]

I hope that the Minister has in his brief a response to the noble Baroness’s point about Clause 11(14), which, I must admit, comes across extraordinarily in this context. She quoted it, saying:

“The duties set out … are to be taken to extend only to content that is harmful to children where the risk of harm is presented by the nature of the content (rather than the fact of its dissemination)”.


Is not that exception absolutely at the core of what we are talking about today? It is surely therefore very difficult for the Minister to say that this applies in a very broad way, rather than purely to content.

[Lord Parkinson of Whitley Bay (Con)]

I will come on to talk a bit about dissemination as well. If the noble Lord will allow me, he can intervene later on if I have not done that to his satisfaction.

I was about to talk about the child safety duties in Clause 11(5), which also specifies that they apply to the way that a service is designed, how it operates and how it is used, as well as to the content facilitated by it. The definition of content makes it clear that providers are responsible for mitigating harm in relation to all communications and activity on their service. Removing the reference to content would make service providers responsible for all risk of harm to children arising from the general operation of their service. That could, for instance, bring into scope external advertising campaigns, carried out by the service to promote its website, which could cause harm. This and other elements of a service’s operations are already regulated by other legislation.

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[Lord Clement-Jones (LD)]

Can the Minister assure us that he will take another look at this between Committee and Report? He has almost made the case for this wording to be taken out—he said that it is already covered by a whole number of different clauses in the Bill—but it is still here. There is still an exception which, if the Minister is correct, is highly misleading: it means that you have to go searching all over the Bill to find a way of attacking the algorithm, essentially, and the way that it amplifies, disseminates and so on. That is what we are trying to get to: how to address the very important issue not just of content but of the way that the algorithm operates in social media. This seems to be highly misleading, in the light of what the Minister said.

[Lord Parkinson of Whitley Bay (Con)]

I do not think so, but I will certainly look at it again, and I am very happy to speak to the noble Lord as I do. My point is that it would not be workable or proportionate for a provider to prevent or protect all children from encountering every single instance of the sort of content that I have just outlined, which would be the effect of these amendments. I will happily discuss that with the noble Lord and others between now and Report.

Amendment 27, by the noble Lord, Lord Stevenson, seeks to add a duty to prevent children encountering targeted paid-for advertising. As he knows, the Bill has been designed to tackle harm facilitated through user-generated content. Some advertising, including paid-for posts by influencers, will therefore fall under the scope of the Bill. Companies will need to ensure that systems for targeting such advertising content to children, such as the use of algorithms, protect them from harmful material. Fully addressing the challenges of paid-for advertising is a wider task than is possible through the Bill alone. The Bill is designed to reduce harm on services which host user-generated content, whereas online advertising poses a different set of problems, with different actors. The Government are taking forward work in this area through the online advertising programme, which will consider the full range of actors and sector-appropriate solutions to those problems.

Online Safety Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Committee stage
Tuesday 25th April 2023 Lords Chamber

[Lord Clement-Jones (LD)]

I am sorry, but can the Minister just clarify that? Is he saying that it is not possible to be covered by both Part 3 and Part 5, so that where a Part 5 service has user-generated content it is also covered by Part 3? Can he clarify that you cannot just escape Part 5 by adding user-generated content?

[Lord Parkinson of Whitley Bay (Con)]

Yes, that is correct. I was trying to address the points raised by the noble Baroness, but the noble Lord is right. The point on whether people might try to be treated differently by allowing comments or reviews on their content is that they would be treated the same way. That is the motivation behind the noble Baroness’s amendment trying to narrow the definition. There is no risk that a publisher of pornographic content could evade their Part 5 duties by enabling comments or reviews on their content. That would be the case whether or not those reviews contained words, non-verbal indications that a user liked something, emojis or any other form of user-generated content.

That is because the Bill has been designed to confer duties on different types of content. Any service with provider pornographic content will need to comply with the Part 5 duties to ensure that children cannot normally encounter such content. If they add user-generated functionality—

Medicines Manufacturing Industry

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Monday 27th February 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the UK is a prime location to research, develop and manufacture pharmaceutical products, particularly complex medicines. The Life Sciences Vision acknowledges that there has been a long-term decline in medicines manufacturing in the UK over the past quarter of a century, as the noble Lord highlighted in his Question, but official statistics from the Office for Life Sciences show that employment in core biopharmaceutical manufacturing has increased by 5% in the two years from 2019. The UK holds the number one spot for life science investment in Europe, and globally is second only to the US, so there are reasons for optimism as well.

[Lord Clement-Jones (LD)]

My Lords, is not the situation outlined by the Minister rather belied by a recent article in the Financial Times by Dame Kate Bingham, who did so much to deliver the Covid vaccine? She said:

“Big companies are also retrenching. The pharmaceutical giants AbbVie and Eli Lilly have pulled out of the UK’s pricing agreement with the NHS. Bayer’s pharmaceutical arm is reducing its UK footprint and cutting jobs. Our own domestic titans, GSK and AZ, have chosen to build new factories in countries more friendly to business”,


such as Ireland. Is this not all down to government policy? How are the Government going to get back on the front foot?

Electronic Trade Documents Bill [HL]

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Lords Special Public Bill Committee
Monday 20th February 2023 Other Business

[Lord Clement-Jones (LD)]

My Lords, this is probably the most positive clause stand part debate that I have had the privilege of speaking in. We have debated the essence and architecture of Clause 2 extensively during the passage of the Bill so far. I thought that our chair, the noble and learned Lord, Lord Thomas, was very tactful in talking about our experience as a committee. The fact is that we had a fairly steep learning curve on trade documents in many respects. He guided us expertly through what we can safely say—interestingly, we had a bit of a history lesson during committee on the Bill—is the biggest change to trade documents since the Venetians ruled the waves.

In particular, these gateway provisions in Clause 2 were examined extremely carefully for their compatibility with the MLETR. One of the issues raised by the noble Lord, Lord Lansley, was about time and place. The Minister’s letter, again, answers that very effectively, so that issue is settled to our satisfaction.

The noble Lord, Lord Holmes, talked about the interoperability aspect. This is crucial, and, again, even though perhaps we do not make enough of that explicitly, it is clearly satisfied by the Bill and needs to be supported on that basis.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful for the consensus of the committee and the opportunity to set out on the record the reasons for the approach that we have taken.

Clause 2 sets out the criteria that a document in electronic form must satisfy in order to qualify as an electronic trade document for the purposes of the Bill. It defines the subject matter with which the Bill is concerned: namely, electronic trade documents. In my noble friend’s explanatory statement to his Motion that the clause should not stand part, reference is made to the provisions of the MLETR and how they are consistent with the structure of the Bill. One area that we did not reach consensus on was whether to refer to the MLETR as the M, L, E, T, R; to pronounce it “Meleeter”; or to refer to it by its full name. However, I am glad that we have had the opportunity to focus on it again today.

The starting point for the Bill has been the following question: what requirements must trade documents in electronic form satisfy in order to be considered capable of performing the same functions as their paper counterparts? Clause 2 seeks to address this question by setting out the criteria that a document must satisfy in order to qualify as an electronic trade document. These gateway criteria are intended to replicate the salient features of paper trade documents, such as being capable of exclusive control and fully divestible upon transfer. An electronic document that satisfies the criteria in Clause 2 is capable of possession and of performing the same functions as its paper counterpart.

Article 10 of the model law sets out criteria that an electronic record must meet in order to satisfy a requirement for a transferable document or instrument—in other words, a paper trade document. A document that satisfies the criteria in Article 10 is an electronic transferable record for the purposes of the model law. In this sense, the MLETR also contains gateway criteria, many of which are closely comparable to those in the Bill.

As I think the committee fully agrees, Clause 2 is fundamental to the Bill and has been carefully drafted to ensure that electronic trade documents can function in the same way as their paper counterparts. The Bill is not intended to be a comprehensive code in relation to electronic trade documents. Rather, it is intended to ensure that electronic documents that satisfy certain criteria, in a reliable way, are legally and functionally equivalent to their paper versions.

As was made clear throughout the committee’s evidence sessions, the structure and the content of the Bill, and Clause 2 in particular, are compatible with the MLETR and with laws in other jurisdictions that have adopted it. It is, however, drafted to cater for the specificities and nuances of UK law, and to take account of feedback to the Law Commission’s consultation paper and draft Bill. So I agree with my noble friend, the noble and learned Lord and others that the salient point here is the interoperability, and I hope that that and the letter I sent to the committee make that clear.

Trade (Mobile Roaming) Regulations 2023

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Tuesday 31st January 2023 Grand Committee

[Lord Parkinson of Whitley Bay (Con)]

Even if I had the statistics to hand, I do not think I would be able to satisfy my noble friend entirely. I do not have the numbers to compare UK travellers visiting Norway and Iceland with, say, Bulgaria or any other EU member state. What they have gained, as the UK has gained by our departure from the European Union, is the ability to sign free trade agreements and agreements such as this which allow us to pursue these benefits. They are a model for our co-operation with countries around the world, whether they are in the European Union or not.

Decisions about imposing roaming charges on customers who travel to the EU is a matter for operators themselves. I note that some, including Virgin Mobile and O2, do not so consumers in the UK still have the option of using that network and travelling without any charge to the European Union. I do not suppose any of that fully persuades my noble friend, but I hope it addresses the points that he has raised.

As I say, this represents a world first in a free trade agreement, and we expect it to make a real difference to Britons travelling to Norway and Iceland. It was one of the key and publicly stated achievements of the agreement, when we signed it, to keep costs low for holidaymakers and business travellers going to those countries, and the Government are committed to delivering that aim.

The noble Lord, Lord Clement-Jones, asked about wholesale charges. They are set out in the statutory instrument and took the EU rates as a benchmark. The agreements sub-committee recommended to the joint committee that the current rate found in the EU roaming regulation would be appropriate for the UK, Norway and Iceland. That is consistent with the agreement’s language, which concerns looking at “relevant international benchmarks”. I should say that the sub-committee is made up of officials, while the joint committee is the senior body chaired by Ministers.

[Lord Clement-Jones (LD)]

Thank you—that is really helpful—but will those rates change when the EU benchmark changes?

[Lord Parkinson of Whitley Bay]

That is not set out in the agreement, but, as is set out in it, the joint committee will review the rates every two years, unless it decides otherwise, with a view to determining whether they are still appropriate. An option in any of the reviews could indeed be to follow the rates in the EU and EEA, as the agreement talks about “relevant international benchmarks”, but that will be for the joint committee to decide.

The noble Lord, Lord Bassam, asked whether we plan to legislate to intervene if surcharges are imposed and endure. Obviously, I cannot make commitments on the Government’s future legislative programme, but I can stress the Government’s firm desire to see the benefits of this agreement flowing to consumers in the form of surcharge-free roaming to Norway and Iceland. If that does not happen, the Government have the capacity to intervene, and we will of course keep that under consideration. We will review these in due course, noting the five-year limit set out. I fear I cannot give a more precise timeframe to the question posed by the noble Viscount, Lord Stansgate.

I think that covers all the points raised, but I will consult the Official Report and write if I have missed anything. With that, I commend the Motion.

Broadband: Social Tariffs

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Tuesday 31st January 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My noble friend is right to point to the changes that were made in the building regulations on Boxing Day. That, of course, sits alongside the work we have taken forward through two telecommunications infrastructure Acts to help ensure that connectivity reaches more households, particularly those in large blocks of flats. It accompanies our wider work to ensure that everyone has access to high-speed internet. As a result of that, 73% of UK premises can now access gigabit-capable broadband, a huge increase from just 6% this time four years ago.

[Lord Clement-Jones (LD)]

My Lords, lack of access to digital devices is a major cause of data poverty. What resources are the Government providing, and what steps are they taking, to make sure that public bodies such as GP practices and schools ensure that families in data poverty can access digital-only services? Do the Government even have a comprehensive digital exclusion policy?

Channel 4

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Wednesday 11th January 2023 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

The noble Lord is absolutely right about ensuring that all of our public service broadcasters faithfully represent the country that they serve. We want Channel 4 to increase the opportunities that it offers young people, from all parts of the country and from all sorts of backgrounds, to get a foot in the door of our creative industries. It will be doubling its investment in its 4Skills training programme from £5 million to £10 million in 2025, and that includes new job opportunities and doubling its number of roles outside of London to 600 in 2025.

[Lord Clement-Jones (LD)]

My Lords, like the noble Viscount, Lord Colville, I am very concerned about the future for independent production companies in light of the Government’s plans, but, like others, I welcome the fact that there are no proposals to sell Channel 4. Can the Minister say how much taxpayers’ money has been wasted on those fruitless plans?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, in answer to a Parliamentary Question, the Government set out that, in the last financial year, we spent £600,000 on plans for privatisation.

Digital Regulation: Communications and Digital Committee Report

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Thursday 21st July 2022 Grand Committee

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

My Lords, I am very grateful to my noble friend Lady Stowell of Beeston for moving and so expertly teeing up this debate on your Lordships’ committee’s report. It is yet another example of the committee’s foresight in placing digital regulation at the centre of public debate—something it also did very effectively through its 2019 report Regulating in a Digital World. I am very grateful to all the members of the committee for their work and to the noble Lords who have spoken today.

I certainly add my voice to the commendation of my noble friend on the constructive way she goes about her engagement and the scrutiny she gives the Government on behalf of your Lordships’ committee, and I also join her in paying particular tribute to our noble friend Lord Gilbert of Panteg, who chaired the committee so ably during the course of this and previous inquiries.

Before I turn to the specific recommendations made in the report, it may be helpful to set out briefly the fundamental issue which lies at the heart of this inquiry: how we approach the regulation of digital technologies. Your Lordships’ committee has done great work to highlight the importance of ensuring that our regulatory approaches can keep pace with the opportunities and the challenges posed by digital technologies, enabling us to maximise the benefits they bring while minimising the risks they pose. Crucially, that is not just about ensuring that our regulators are able to work effectively together, or that we have effective horizon scanning in place, important as these considerations are. It is also, more fundamentally, about how we design and implement our overarching regulatory approach.

The Government take this issue extremely seriously. In July last year we published the plan for digital regulation, setting out our overarching approach to digital regulation for the first time. The plan outlined our commitment to develop regulatory policy which is capable of delivering our core objectives: to promote competition and innovation, to keep the UK safe and secure online, and to promote a flourishing democratic society.

Momentum since the publication of the plan has been steady. Indeed, we have continued to make rapid progress even in the relatively short time since the committee concluded its inquiry. In March, the Online Safety Bill was introduced to Parliament, which will equip the UK with powerful regulatory and legal tools to keep internet users, especially children and vulnerable people, safe. As your Lordships know, it is still on Report in another place, which means that, regrettably, we will not have our Second Reading in the first week back after the Summer Recess. However, I hope that it will reach your Lordships’ House expeditiously so that we can do that swiftly.

Also in March, the Secretary of State wrote to the Digital Regulation Cooperation Forum outlining the Government’s priorities for digital regulation, including more effective horizon scanning and greater regulatory join-up, key elements of which are being addressed through the current work programme of the forum.

In May, we confirmed our approach to delivering the new pro-competition regime for digital markets, which will help to deliver lower prices for UK families, enable entrepreneurs to compete and grow, and give consumers more choice and control over the services that they use online.

In June, we confirmed our data reform proposals, setting out how we intend to update our data protection laws, implement a more flexible approach to compliance and ensure that the Information Commissioner’s Office is better able to account for the increasing importance of its remit for competition, innovation and economic growth.

In July, we published our approach to regulation in the UK Digital Strategy, including new research on regulatory innovation, as well as an “initial outcomes monitoring framework”, which will enable us better to understand and assess the evidence base for regulatory policy.

In addition, only this week, as my noble friend Lord Vaizey of Didcot spotted through his assiduous monitoring of the DCMS Twitter feed, we published a policy paper on the governance of artificial intelligence, setting out our proposals for a new approach to AI regulation, which will unleash growth and innovation while safeguarding our fundamental values and keeping people safe and secure, and we introduced the Data Protection and Digital Information Bill to Parliament.

I list all this to emphasise how seriously the Government take this issue, and I hope to provide some reassurance to noble Lords. Like your Lordships’ committee, we are committed to making sure we have a coherent approach to regulation which will deliver the full benefits of digital technologies, and we are taking the steps we needed to do this.

I turn now to the specific recommendations made by the committee in its report, beginning with its proposals on regulatory co-ordination and co-operation. As we have been discussing, the report made two connected recommendations: to expand the Digital Regulation Cooperation Forum and place it on a statutory footing as the “digital regulation board”, and to implement new statutory duties to strengthen and facilitate regulatory co-operation.

On the proposal for a digital regulation board, I emphasise the points that we made in our response to the committee’s report. Although the Government agree that the forum has a fundamental role to play in the regulatory landscape, we do not currently support the idea of converting it into a statutory body with the power to direct and oversee other regulators. That is partly due to the complexity that such a body would create in the regulatory landscape at a time when regulatory regimes and remits are quickly evolving, as noble Lords noted. In particular, we are concerned that such a move would confuse issues of accountability and ownership, at a point when consumers and industry are looking for more—not less—clarity on where regulatory responsibilities sit.

Our reticence to create more formal architecture at this stage also reflects the value that we attach to the agility of the forum. The former Minister for the Digital Economy, Chris Philp, made this point in evidence to your Lordships’ committee when he noted that the forum has to work much more quickly than would have been possible with a statutory body. Statutory bodies can be cumbersome to create and operate, whereas less formal approaches can enable us to move more quickly and make more rapid progress, which is critical given the fast-moving nature of digital technologies.

Indeed, I point noble Lords to the impressive work which the forum is doing, to some of which my noble friend Lady Stowell alluded in her opening speech. This year alone it has published a landmark statement on online safety and competition regulation, major publications on algorithmic processing and auditing and an ambitious work plan for 2022-23, as well as launching its digital market research portal. I also venture to suggest that it is the flexibility afforded by the forum’s model of co-ordination that has made it such a strong focus of international interest, with comparable bodies already established in the Netherlands and Australia, and other countries such as Singapore following its work with close interest.

I recognise that it was not only the legislative basis of the forum but the extent and scope of its membership that was a central concern in the committee’s proposal for a digital regulation board. As the Government have made clear in our plan for digital regulation, the digital strategy and the Secretary of State’s letter of priorities to the chief executives of the forum, effective co-ordination will need to involve a wider set of regulators than those currently included in the forum, although clearly they will play a central role in digital regulation. We therefore welcomed the commitment that the forum made in its current work plan and letter to the Secretary of State to engage comprehensively with other regulators via quarterly round tables and to identify opportunities for collaborative work on that basis. Those round tables have already seen the forum engage with the Gambling Commission, the Bank of England, the Payment Systems Regulator, the Advertising Standards Authority, the British Board of Film Classification, the Intellectual Property Office and the Electoral Commission. There is clearly scope for further engagement, although it is important to note that there is inevitably a trade-off between the breadth of the forum’s activities and its ability to progress specific projects quickly.

I turn to the second element of the committee’s recommendations on co-ordination. I am pleased to confirm that we are in the process of implementing a range of statutory measures to enable regulators to collaborate and share information in the delivery of new regulatory regimes. As recently discussed in another place in relation to the Online Safety Bill, we are updating Section 393 of the Communications Act 2003 to ensure that Ofcom can disclose information with other regulators including the Competition and Markets Authority, the Information Commissioner’s Office, the Financial Conduct Authority and the Payment Systems Regulator for the purposes of its functions under that Bill. We will likewise introduce a duty for the Digital Markets Unit to consult the Financial Conduct Authority, Ofcom, the Information Commissioner’s Office, the Bank of England and the Prudential Regulation Authority as part of the planned measures for the new pro-competition regime. Finally, in reforms to the data protection regime and ICO, the Data Protection and Digital Information Bill introduces a new duty for the ICO to consult regulators and other relevant bodies when exercising its duties to have regard to growth, innovation and competition.

We are confident from intensive discussions with regulators that these measures will provide them with the powers they need to address key points of intersection between the new regulatory regimes while being proportionate and tight in scope. Of course we recognise that further measures may be needed to address other challenges that may be raised in the future. For example, issues of co-ordination are likely to become a major area of focus as we develop our proposals for AI regulation and governance which will be outlined in our forthcoming White Paper. I assure noble Lords that we will continue to keep such issues under review.

I turn to the next key area of the committee’s recommendations: the need to ensure greater consolidation in regulatory horizon scanning. I agree that this is vital, given the speed and suddenness with which disruptive digital technologies can transform society. The Government have made science and technology policy, driven by evidence, a major priority. There are strong networks across government for sharing insights from the horizon-scanning teams in different departments. This is led by the national science and technology council, chaired by the Prime Minister, and the Government Office for Science, led by the Chief Scientific Adviser. These organisations bring together expertise from inside and outside government to identify the mechanisms required to deliver our ambitions for innovation.

It is also an area where the regulators, the DRCF in particular, are making rapid progress. Last year, for example, the forum launched its technology horizon-scanning programme, which is explicitly designed to enable join-up with small and medium-sized enterprises, start-ups and academia—partnerships which bring great benefit, as my noble friend Lady Stowell rightly said. In March, it followed this with the launch of a research portal to help regulators and others access existing knowledge about topical issues, and has undertaken the first of a projected series of symposia on issues such as fintech, the metaverse and Web3. Alongside this, it has continued to strengthen its engagement with international counterparts.

Government and regulators are also supported by a network of advisory bodies. These include the Alan Turing Institute, which specialises in data science and artificial intelligence, the Regulatory Horizons Council, an independent expert committee which identifies the implications of technological innovation and provides government with impartial expert advice on regulatory reform, and the AI Council, another independent expert committee that provides advice to government and high-level leadership of the artificial intelligence ecosystem.

As the noble Lord, Lord Clement-Jones, noted—

[Lord Clement-Jones (LD)]

Can the Minister say a bit more about the Regulatory Horizons Council? It seems to be one of these shadowy bodies that very rarely publish anything or make updates. The Minister mentioned many other bodies that clearly do useful work, but I have my doubts about the Regulatory Horizons Council.

[Lord Parkinson of Whitley Bay (Con)]

I would be very happy to provide an introduction for the noble Lord so that he can speak to it directly.

I was going to follow the point the noble Lord made about the report this week from the Alan Turing Institute on how regulators can address the challenges and opportunities of regulating AI. That report echoes the Government’s national AI strategy and plan for digital regulation in concluding that there is a greater need for regulatory co-ordination; it proposes enabling co-ordination, including resource pooling, as my noble friend Lord Vaizey mentioned in his points about joint hiring, to increase readiness for AI across the UK’s regulatory landscape. All these bodies provide us with useful insights. I am very happy to provide an introduction for the noble Lord, Lord Clement-Jones, to the Regulatory Horizons Council.

As ever, there is much more work to be done and the Government will continue to analyse how we can best support work across the different institutions involved in the complex science of horizon scanning. Again, this is likely to become a particularly salient issue as we develop our thinking on AI governance and regulation, and one where we expect to offer further suggestions in due course.

I turn to the committee’s recommendation for a new parliamentary Joint Committee to scrutinise digital regulation. Again, I refer noble Lords to the position we outlined in our response: we believe it would be unnecessary to establish a permanent Joint Committee of this kind when we already have rigorous scrutiny provided by established committees such as your Lordships’ committee and the DCMS Select Committee in another place. We will therefore not take forward the recommendation for a new Joint Committee, although, as the former Minister for the Digital Economy made clear in Committee on the Online Safety Bill, we continue to assess whether some form of additional scrutiny is needed in the context of that piece of legislation. We remain open-minded on that and I look forward to discussing it with noble Lords when the Bill comes to your Lordships’ House.

My noble friend Lady Stowell asked about the timing of the digital markets Bill. As she knows, the Queen’s Speech outlined that we will publish a draft digital markets, competition and consumer Bill. Publishing in draft allows us to engage with Parliament and interested parties on the details of the regime to ensure that the legislation is effective, balanced and proportionate. Pre-legislative scrutiny certainly improved the Online Safety Bill, and I hope the engagement that the publication of a draft Bill will allow us will help sharpen its proposals.

In the meantime, the Government will continue to work with the Digital Markets Unit to ensure the operational readiness of the regime, ahead of the legislation being passed. We have engaged with interested parties extensively, through a public consultation, and published our responses earlier this month. As I say, we committed in the Queen’s Speech to publish a draft Bill in this parliamentary Session, and that remains our commitment.

My noble friend also took the opportunity to ask a slightly off-topic question about BBC funding. As this is her last chance to do so before the Summer Recess, I am happy to say that DCMS will begin preparatory work over the summer, including considering the findings of your Lordships’ committee. We will look at what lessons we can learn from other countries on how they have reformed public service broadcasters in their jurisdictions in recent years. Although it has not been possible to launch a review of the licence fee funding model before the Summer Recess, the next Prime Minister will obviously have a role in deciding how we approach it.

To conclude, I reiterate the point about the speed with which new opportunities and challenges are being generated in the regulatory space. By necessity, the decisions that we make today about our regulatory approach and institutions will not be the final word on any of these questions, and the Government are fully committed to reviewing our regulatory approaches and structures.

I thank noble Lords for their willingness to engage so constructively with us as we chart our course through these new challenges. I encourage them to continue doing so as digital innovation continues to transform our lives still further—but perhaps not until after they have all enjoyed a well-earned summer break.

Clearview AI Inc

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Tuesday 5th July 2022 Lords Chamber

[Lord Clement-Jones]

To ask Her Majesty’s Government what assessment they have made of the decision by the Information Commissioner’s Office to fine and issue an enforcement notice against Clearview AI Inc. in respect of its use of images of United Kingdom residents collected from the internet without their knowledge or consent.

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

My Lords, organisations based in the UK and those based overseas which process data of UK residents for the purposes of providing services must comply with our data protection legislation. Where personal data are more sensitive in nature, such as where they relate to a person’s biometric information, stricter rules and safeguards apply. The Information Commissioner’s Office enforces legislation independently of government. In the case of Clearview AI, it decided that the data protection principles were not complied with and enforcement action was needed. Further details can be viewed on the ICO’s website.

[Lord Clement-Jones (LD)]

My Lords, Clearview is a US company that is in clear breach of data protection laws, collects facial images for its database without our knowledge or consent, uses it to train its algorithms and then offers special deals to schools and the police to use the database on their live facial recognition systems. What are the Government doing to prohibit public authorities contracting with Clearview? Clearview has said it will not even pay the ICO’s rather limited fine. What will the ICO and the Government do now to ensure that it pays?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, Clearview is appealing the ICO’s finding, which it is entitled to do, but I note that the ICO is not the only regulator to have taken action against it: its French, Italian, German, Canadian and Australian counterparts have reached similar conclusions. The ICO has issued a fine and served an enforcement notice issuing orders for Clearview to delete the data. Subject to its appeal, that is what it will have to do.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness is right: there are important ethical questions which need to be fed in. The College of Policing provides guidance on the use of surveillance technology and facial recognition technology, which should take these into account. The general principles of facial recognition technology are that it should be lawful, transparent and fair to the individual.

[Lord Clement-Jones (LD)]

My Lords, is not the bottom line that Clearview AI should have no business dealing with our public authorities, whether the police, schools or otherwise? Should not the Government be banning Clearview AI from any public contracts?

Product Security and Telecommunications Infrastructure Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Lords Hansard - Part 2 & Committee stage
Wednesday 29th June 2022 Lords Chamber

[Lord Clement-Jones (LD)]

I am sorry to interrupt the Minister. As he knows, certainty is absolutely crucial for business. What is always created when new legislation supersedes old legislation is uncertainty. What confidence can the Minister possibly have that the impact of this Bill will be beneficial to rollout?

[Lord Parkinson of Whitley Bay (Con)]

With such an accelerating market, thanks to the pro-investment environment that the Government are creating, it is quite challenging to quantify the extent to which progress is attributable to any single piece of legislation in a market that reflects so many factors. That is one reason why we think it would be of limited value.

My noble friend Lord Northbrook asked me to comment on the Centre for Economics and Business Research report on the 2017 reforms. We believe that the CEBR report does not provide a sufficiently rounded picture in its assessment of how the 2017 reforms have affected the pace of telecommunications delivery. The Government, as I have said, acknowledged in 2017 that reductions in payments could make landowners less keen to enter into agreements to host apparatus on their land. We expected an initial slowdown following the implementation of the 2017 reforms while the market adapted to them, but our understanding, informed by our conversations and consultation, is that both new and renewal agreements are now being successfully concluded. For instance, we were informed in January this year that, since 2017, 900 agreements had been renewed and that 83.5% of those agreements were concluded consensually, to give noble Lords some data.

Product Security and Telecommunications Infrastructure Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Lords Hansard - Part 1 & Committee stage
Wednesday 29th June 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

I am sorry to disagree with my noble friend, but the CLA’s response to the consultation opposed compulsory ADR. I would be very happy to speak to her and triple check that with officials afterwards, but we clearly have different understandings of its position. I would be happy to speak to her afterwards to make sure that we can clarify that.

[Lord Clement-Jones (LD)]

My Lords, we clearly have some clearing up to do between Committee and Report on who said what and who supports what. I too was quite surprised to hear that the CLA would be opposed to compulsory ADR in these circumstances.

I thank noble Lords for their support for the amendments and the Minister for his very detailed reply. I do not think there is any dispute between us. We all want greater connectivity and to see 1-gigabit rollout. The whole question is whether we want greater trust—the word that I think the noble Earl, Lord Lytton, used. Quite frankly, across the Committee there is a view, on the valuation questions, on retrospectivity in the previous group and on the lack of compulsory ADR, that this will lead to more disputes. The Government seem to be going down this track where they plan for there to be more disputes so that more tribunals can be brought into effect and more lawyers will be employed, no doubt with rejoicing in various parts of the City. Everything in these amendments was designed to minimise the number of disputes, and to make sure that we had compulsory ADR and that Ofcom’s code actually bites.

It was very disappointing to hear what the Minister had to say. I hope that, between Committee and Report, he will reflect on some of the points made in this respect and that we can check to see whether landowners are unanimous on this, because using ADR as a filter would be a perfectly acceptable way of doing things. Once certain aspects are established as a matter of law then a dispute can of course be referred, but a mediator can, by agreement of the parties, refer it to a court to be determined. There is no impediment to using ADR as that initial filter, which would mean that there would be many fewer disputes. We would actually have faster rollout as a result and the Bill’s purposes would be entirely achieved.

I am sure that this will be a candidate for Report as well. In the meantime, I beg leave to withdraw the amendment.

Media Literacy

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Monday 20th June 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

I am afraid that I am not sure that I fully follow the point that the noble and learned Baroness makes. If she is talking about the importance of respecting freedom of expression and views and protecting debates through the Online Safety Bill, as well as guarding against misinformation and disinformation, there are important protections in the Bill to make sure that we can have free and unbridled debate. However, if I have misunderstood, I will be very happy to speak to her afterwards in more detail.

[Lord Clement-Jones (LD)]

My Lords, I remind the Minister that, as recently as April, his department was making the case for more powers for Ofcom in its Year 2 Online Media Literacy Action Plan, so the Minister’s replies today have been somewhat extraordinary. Given the extent of misinformation and disinformation on social media, is it not absolutely clear that we need more specific powers and duties on Ofcom, in particular to ensure that Ofcom can set minimum standards for media literacy initiatives? Why do not the Government commit to put these in the Bill?

[Lord Parkinson of Whitley Bay (Con)]

Through the Online Safety Bill, we are giving Ofcom strengthened media literacy functions on transparency reporting, information gathering and the other areas I set out. However, through its strategy announced in December last year, Ofcom has set out its own expanded work programme to discharge its existing duty, which includes pilots, campaigns to promote media literacy, establishing best practice and creating guidance on evaluation, so we are pleased to see that it is using and extending the powers that it has.

Product Security and Telecommunications Infrastructure Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

2nd reading
Monday 6th June 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am very grateful to all noble Lords for their contributions to what I agree has been a very enjoyable debate this afternoon. I am sure these contributions will form a prelude to some further interesting and enjoyable debates in Committee and later stages of the Bill. I am grateful, too, for the excessively generous compliments from my noble friends behind me, which I am sure are an illustration of the great harmony and mutual affection for which the Conservative Party is, today of all days, renowned.

As my noble friend Lady Harding of Winscombe rightly said, this is a technical but important Bill, and I am pleased that all noble Lords from all parts of your Lordships’ House are in agreement that people from across the country should be able to benefit from faster digital connectivity and the assurance that their technology is secure. The Bill therefore comes at an opportune time, when cyberattacks are on the rise and when digital connectivity is increasingly important for all the reasons that my noble friend Lady Hodgson of Abinger and other noble Lords set out. We have heard examples in today’s debate of the benefits which will accrue to communities, urban and rural, right across the country.

I am conscious that in Committee we will go into greater detail in some of the areas which noble Lords have alluded to, but I want to respond to some of the points which they have raised in today’s debate. The noble Lord, Lord Fox, began in general terms by asking whether we ought to set out a clear explanation in the Bill of what consumers can expect in terms of product security. The fundamental purpose of the Bill, as set out in its first clause, is to embed security requirements to protect and enhance the security of connectable products and their users. That is the measuring stick against which the impact of the Bill and future regulations will be assessed.

As I alluded to in my opening remarks, there are no silver bullets in cybersecurity. Thousands of people in the UK have been victims of cyberattacks, and cybercriminals are using connectable products to attack large infrastructure as well. Our approach to connectable products lies in both the UK and wider international expertise. Our own 2018 code of practice is the foundation of the first international standard for consumer security and there is an international consensus behind this standard. We are also, through the Bill, the first to embed these protections in legislation. At the moment, some security-conscious manufacturers address these threats, but through the Bill we will now make sure that all manufacturers follow best practice in future.

The noble Earl, Lord Devon, rightly spoke of our international standing. The UK has established global leadership in this area. We have worked closely with our international partners and have seen evidence of other countries and organisations embedding the approach that we have taken in their own codes. In my opening remarks I mentioned Australia and India, which have published codes of practice with the same 13 principles which we published in 2018, but Singapore, Germany and Finland among others have made their own domestic interventions which also align with the UK’s code of practice. The European Commission has also published its intention to explore regulation for connected devices through the cyber resilience Act.

On Part 2, the noble Lord, Lord Fox, in general terms asked why we were revisiting and changing the code again. As noble Lords noted, it was substantially reformed in 2017, following the important and substantial work undertaken by my noble friend Lord Vaizey of Didcot when he was the responsible Minister. A key aim of those reforms was to make it cheaper and easier for digital infrastructure to be deployed, maintained and upgraded. The Government recognised that this would mean telecommunications site providers receiving lower payments than had previously been the case. However, those changes were introduced only following an extensive period of consultation and research and were considered necessary to reduce operator costs and to encourage the industry investment required for the UK to get the digital communications infrastructure that it needs.

The Government intended that the 2017 reforms would speed up deployment and reduce operator costs, and indeed the changes have borne fruit. However, since the changes have come into force we have also received feedback about how they have worked in practice and about some of the ongoing challenges which people face. The Bill aims to tackle those problems and to ensure that the aim and the ambition of the 2017 reforms is realised. To give an example, both operators and landowners have pointed to problems regarding negotiations, with operators saying that they take too long and landowners saying that they face too much pressure to accept certain terms. This is one of the areas we will address through the Bill.

A number of noble Lords spoke about the valuation work which came from the 2017 reforms. The new pricing regime is more closely aligned to those for utilities such as water, electricity and gas, and we think that is the correct position. Landowners should still receive fair payments which, among other things, take into account any alternative uses that the land may have and any losses or damages that may be incurred. We think that the measures in the Bill will support greater collaboration between operators and landowners and help agreements to be completed more swiftly.

The prices being paid for rights to install communications apparatus before 2017 were too high and reflected the rapid explosion that was taking place in demand for digital services; it was right that they were addressed. The 2017 reforms were intended to strike a balance between ensuring that individual landowners are not left out of pocket and making network deployment and maintenance more cost-effective.

The noble Earl, Lord Devon, and others asked about reviewing the impact of the reforms made in 2017. We recognised when the 2017 reforms were introduced that the market would need time to adapt and settle, and it would be premature to carry out a full assessment of the 2017 reforms at this time. There is not enough evidence about agreements which were completed after they came into force for a properly robust and comprehensive analysis to be made—not least, of course, because of the impact of the pandemic. However, the evidence and feedback we have received provides a compelling case that the changes we are making in this Bill will ensure that the 2017 reforms have their intended effect. Making these changes now will help to deliver the Government’s 2025 connectivity target of at least 85% of homes and businesses having access to gigabit broadband. That is not to say that we think the 2017 reforms failed. Much progress has been made. We simply think that more can and must be done to maximise their impact.

The noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Merron, asked about impact assessments. The impact assessments which accompanied the 2017 reforms did not state that the Government would undertake a full economic review of the code’s impact on rents, but in that document the Government committed to reviewing the 2017 reforms as a whole by June 2022—this month. The Government have met this commitment through their continuing engagement with interested parties, including holding monthly access to land workshops. This engagement and the issues which have been highlighted through it prompted the 2021 consultation and the measures in the Bill, which we think are needed for the aims of the 2017 reforms to be fully realised.

[Lord Clement-Jones (LD)]

That sounds a bit feeble. DCMS has had workshops but has not produced a review. That does not sound like any sort of review.

[Lord Parkinson of Whitley Bay (Con)]

The noble Lord perhaps thinks we committed to more in 2017 than we did. We have met the commitments we made in 2017 through our engagement with the industry. The points it made have informed the Bill before us. I am sure we will debate—

[Lord Clement-Jones (LD)]

May I suggest that if the passage of the Bill is to be smooth, any information the Minister is able to provide about the impact, past or expected, would be extremely helpful? Otherwise, we are all going to be arguing about suppositions.

[Lord Parkinson of Whitley Bay (Con)]

Certainly. I pointed out that the time that has elapsed since 2017 has perhaps not given us as much real data as we would have had, were it not for the pandemic, but of course we will be influenced by what have seen as we scrutinise the Bill in Committee and later.

We have heard a range of views on multiple dwelling units. The Government are aware of calls from parts of the industry for greater automatic rights to upgrade existing infrastructure in multiple dwelling units. The Government are not convinced that granting those rights is proportionate, because we must strike the right balance between private property rights and public benefits. There are other ways that operators can arrange to upgrade equipment in multiple dwelling units. They can ask for those rights and if landlords fail to reply, they will be able to use the process created through the Telecoms Infrastructure (Leasehold Property) Act 2021. If landlords refuse, operators can ask the courts to impose additional rights to upgrade existing equipment if their agreement with the landlord does not already provide them with those rights.

Other measures in the Bill encourage the use of alternative dispute resolution to support more collaborative negotiations. The Government are also considering further changes through regulations to help code disputes be dealt with more quickly. Finally, it is important to stress that there is no consensus from the industry on this issue, just as there was no consensus in our debate today. In fact, many operators have opposed the proposal on the grounds that it would create an unfair advantage for operators who already have equipment inside buildings and could therefore have anti-competitive effects.

My noble friend Lady Harding of Winscombe asked about telegraph poles. It is important that any automatic rights in relation to apparatus on, under or over private land strike a fair balance between any interference with private property rights and any public benefits that can be delivered. We think that the measures in this Bill on rights to upgrade and share apparatus under land achieve that balance. However, we have seen some evidence that further public benefits might be achieved if telecommunications poles sited on private land could be upgraded and shared more easily. Operators already have statutory rights to fly wires between these poles and it is obviously important that the legislative framework supports the effective use of these rights; we are looking into this matter closely.

A number of noble Lords touched on what is and is not in scope of Part 1 of the Bill. The Bill sets out what types of products should be treated as “consumer connectable”. This includes products that can be connected to the internet, such as routers, smart TVs, smart home products and connectable toys. I can tell my noble friend Lord Arbuthnot of Edrom that toasters are indeed in scope, although the idea of an internet-connected toaster makes me think of Wallace and Gromit. I share his bafflement at why people might want to do it, but they are in scope.

The powers in the Bill will allow the Government to update products that are in scope where changes to the wider regulatory, technological or threat landscape render this appropriate. The Government also intend to remove some products from scope where their inclusion would subject them to double regulation or where that would be disproportionate to the level of security risk. An example of such an exception is automotive vehicles, which I can tell my noble friend Lord Vaizey of Didcot include e-scooters; other examples are medical devices and smart charging points.

My noble friend Lord Arbuthnot talked about the vulnerability disclosure process. Of course, manufacturers will not see every vulnerability in their own products. Increasingly, the people best placed to spot them are everyday users and designated security researchers; but the potential point of failure here is the process for reporting those vulnerabilities to the manufacturer, which is often difficult to navigate. The security requirement will mandate a clear point of contact and the policy for the manufacturer to receive such reports and take meaningful action to address them. That is an important step forward, which, I am pleased to say, has widespread industry and expert support.

The noble Lords, Lord Clement-Jones and Lord Bassam of Brighton, the noble Baroness, Lady Merron, and others asked about future-proofing. There is a common notion that Governments are behind the curve when it comes to regulating technology, but not in this case. As well as setting the stage to introduce the regulations to which we have already committed, this Bill establishes a flexible and future-proof regulatory framework so the Government can be agile and proactive in amending and introducing security requirements in step with technological innovation. That is exactly why we have not included the three security requirements on the face of the Bill. By design, the Bill not only addresses the current problem but looks beyond it to ensure that UK consumers can be protected no matter how technologies and threats change and emerge.

My noble friend Lord Holmes of Richmond asked about the Computer Misuse Act. Colleagues at the Home Office are currently taking forward work to identify whether the proposals made in response to the review of that Act, which was launched in May last year, will assist in helping to protect the UK from cybercrime, or whether they are addressed under other programmes of work. We will provide an update to your Lordships’ House in due course, but this Bill will enhance protection for consumers and networks from the range of harms associated with cyberattacks. It equips the Government with the necessary powers to set and update security requirements within a fast-growing area of emerging technologies.

[Lord Clement-Jones (LD)]

I am sorry to interrupt the Minister again, but I am frightened that he is not going to tell us who the regulator will be, explain why we are covering only three of the many principles covered in legislation in other territories, or provide us with a glimpse of the secondary legislation.

[Lord Parkinson of Whitley Bay (Con)]

The noble Lord is eager to hear answers to questions to which I may yet turn; on some of them I will write. Work has been done to identify the regulator, but it would not be right to refer to that person at this stage and ahead of Royal Assent. I will write to the noble Lord on the other points he mentioned. I talked just now about our approach, through secondary legislation, to future-proofing and the reasons for not setting out the first three principles in the Bill. We have set out what those standards will be up front.

My noble friend Lord Holmes of Richmond spoke about the important issue of digital inclusion and skills. We run programmes to give young people the opportunity to learn digital skills and to improve their cybersecurity. More than 100,000 young people have participated in these programmes. We have expanded that with a new online training platform, Cyber Explorers, which aims to engage 30,000 young people, and DCMS funded the creation of the UK Cyber Security Council to create professional standards and pathways for cybersecurity.

The noble Lord, Lord Fox, asked about Huawei equipment in our infrastructure. The Government have undertaken a consultation with the industry on the designation of Huawei as a high-risk vendor and proposed directions relating to Huawei goods and services. The responses we receive will inform any final post-consultation decision on whether to issue the designation notice and direction. The Government have also undertaken a public consultation on a set of draft electronic communications security measures regulations and a draft code of practice, the outcome of which will be published in due course.

AI in the UK (Liaison Committee Report)

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Wednesday 25th May 2022 Grand Committee

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful to the noble Lord, Lord Clement-Jones, and all noble Lords who have spoken in today’s debate. I agree with the noble Lord, Lord McNally, that all the considerations we have heard have been hugely insightful and of very high quality.

The Government want to make sure that artificial intelligence delivers for people and businesses across the UK. We have taken important early steps to ensure we harness its enormous benefits, but agree that there is still a huge amount more to do to keep up with the pace of development. As the noble Lord, Lord Clement-Jones, said in his opening remarks, this is in many ways a moving target. The Government provided a formal response to the report of your Lordships’ committee in February 2021, but today’s debate has been a valuable opportunity to take stock of its conclusions and reflect on the progress made since then.

Since the Government responded to the committee’s 2020 report, we have published the National AI Strategy. The strategy, which I think it is fair to say has been well received, had three key objectives that will drive the Government’s activity over the next 10 years. First, we will invest and plan for the long-term needs of the AI ecosystem to continue our leadership as a science and AI superpower; secondly, we will support the transition to an AI-enabled economy, capturing the benefits of innovation in the UK, and ensuring that AI benefits all sectors and parts of the country; and, thirdly, we will ensure the UK gets the national and international governance of AI technologies right to encourage innovation and investment, and to protect the public and the values that we hold dear.

We will provide an update on our work to implement our cross-government strategy through the forthcoming AI action plan but, for now, I turn to some of the other key themes covered in today’s debate. As noble Lords have noted, we need to ensure the public have trust and confidence in AI systems. Indeed, improving trust in AI was a key theme in the National AI Strategy. Trust in AI requires trust in the data which underpin these technologies. The Centre for Data Ethics and Innovation has engaged widely to understand public attitudes to data and the drivers of trust in data use, publishing an attitudes tracker earlier this year. The centre’s early work on public attitudes showed how people tend to focus on negative experiences relating to data use rather than positive ones. I am glad to say that we have had a much more optimistic outlook in this evening’s debate.

The National Data Strategy sets out what steps we will take to rebalance this perception from the public, from one where we only see risks to one where we also see the opportunities of data use. It sets out our vision to harness the power of responsible data use to drive growth and improve services, including by AI-driven services. It describes how we will make data usable, accessible and available across the economy, while protecting people’s data rights and businesses’ intellectual property.

My noble friend Lord Holmes of Richmond talked about anonymisation. Privacy-enhancing technologies such as this were noted in the National Data Strategy and the Centre for Data Ethics and Innovation, which leads the Government’s work to enable trustworthy innovation, is helping to take that forward in a number of ways. This year the centre will continue to ensure trustworthy innovation through a world-first AI assurance road map and will collaborate with the Government of the United States of America on a prize challenge to accelerate the development of a new breed of privacy-enhancing technologies, which enable data use in ways that preserve privacy.

Our approach includes supporting a thriving ecosystem of data intermediaries, including data trusts, which have been mentioned, to enable responsible data-sharing. We are already seeing data trusts being set up; for example, pilots on health data and data for communities are being established by the Data Trusts Initiative, hosted by the University of Cambridge, and further pilots are being led by the Open Data Institute. Just as we must shift the debate on data, we must also improve the public understanding and awareness of AI; this will be critical to driving its adoption throughout the economy. The Office for Artificial Intelligence and the Centre for Data Ethics and Innovation are taking the lead here, undertaking work across government to share best practice on how to communicate issues regarding AI clearly.

Key to promoting public trust in AI is having in place a clear, proportionate governance framework that addresses the unique challenges and opportunities of AI, which brings me to another of the key themes of this evening’s debate: ethics and regulation. The UK has a world-leading regulatory regime and a history of innovation-friendly approaches to regulation. We are committed to making sure that new and emerging technologies are regulated in a way that instils public confidence in them while supporting further innovation. We need to make sure that our regulatory approach keeps pace with new developments in this fast-moving field. That is why, later this year, the Government will publish a White Paper on AI governance, exploring how to govern AI technologies in an innovation-friendly way to deliver the opportunities that AI promises while taking a proportionate approach to risk so that we can protect the public.

We want to make sure that our approach is tailored to context and proportionate to the actual impact on individuals and groups in particular contexts. As noble Lords, including the right reverend Prelate the Bishop of Oxford, have rightly set out, those contexts can be many and varied. But we also want to make sure our approach is coherent so that we can reduce unnecessary complexity or confusion for businesses and the public. We are considering whether there is a need for a set of cross-cutting principles which guide how we approach common issues relating to AI, such as safety, and looking at how to make sure that there are effective mechanisms in place to ensure co-ordination across the regulatory landscape.

The UK has already taken important steps forward with the formation of the Digital Regulation Cooperation Forum, as the noble Lord, Lord Clement-Jones, and others have noted, but we need to consider whether further measures are needed. Finally, the cross-border nature of the international market means that we will continue to collaborate with key partners on the global stage to shape approaches to AI governance and facilitate co-operation on key issues.

My noble friend Lord Holmes of Richmond and the noble Lord, Lord Evans of Weardale, both referred to the data reform Bill and the issues it covers. DCMS has consulted on and put together an ambitious package of reforms to create a new pro-growth regime for data which is trusted by people and businesses. This is a pragmatic approach which allows data-driven businesses to use data responsibly while keeping personal information safe and secure. We will publish our response to that later this spring.

My noble friend also mentioned the impact of AI on jobs and skills. He is right that the debate has moved on in an encouraging and more optimistic way and that we need to address the growing skills gap in AI and data science and keep developing, attracting and training the best and brightest talent in this area. Since the AI sector deal in 2018, the Government have been making concerted efforts to improve the skills pipeline. There has been an increased focus on reskilling and upskilling, so that we can ensure that, where there is a level of displacement, there is redeployment rather than unemployment.

As the noble Lord, Lord Bilimoria, noted with pleasure, the Government worked through the Office for AI and the Office for Students to fund 2,500 postgraduate conversion courses in AI for students from near and non-STEM backgrounds. That includes 1,000 scholarships for people from underrepresented backgrounds, and these courses are available at universities across the country. Last autumn, the Chancellor of the Exchequer announced that this programme would be bolstered by 2,000 more scholarships, so that many more people across the country can benefit from them. In the Spring Statement, 1,000 more PhD places were announced to complement those already available at 16 centres for doctoral training across the country. We want to build a world-leading digital economy that works for everyone. That means ensuring that as many people as possible can reap the benefits of new technologies. That is why the Government have taken steps to increase the skills pipeline, including introducing more flexible training routes into digital roles.

The noble Lord, Lord St John of Bletso, was right to focus on how the UK contributes to international dialogue on AI. The UK is playing a leading role in international discussions on ethics and regulation, including our work at the Council of Europe, UNESCO and the OECD. We should not forget that the UK was one of the founding members of the Global Partnership on Artificial Intelligence, the first multilateral forum looking specifically at this important area.

We will continue to work with international partners to support the development of the rules on use of AI. We have also taken practical steps to take some of these high-level principles and implement them when delivering public services. In 2020, we worked with the World Economic Forum to develop guidelines for responsible procurement of AI based on these values which have since been put into operation through the Crown Commercial Service’s AI marketplace. This service has been renewed and the Crown Commercial Service is exploring expanding the options available to government buyers. On an international level, this work resulted in a policy tool called “AI procurement in a box”, a framework for like-minded countries to adapt for their own purposes.

I am mindful that Second Reading of the Procurement Bill is taking place in the Chamber as we speak, competing with this debate. That Bill will replace the current process-driven EU regime for public procurement by creating a simpler and more flexible commercial system, but international collaboration and dialogue will continue to be a key part of our work in this area in the years to come.

The noble Lord, Lord Browne of Ladyton, spoke very powerfully about the use of AI in defence. The Government will publish a defence AI strategy this summer, alongside a policy ensuring the ambitious, safe and responsible use of AI in defence, which will include ethical principles based on extensive policy work together with the Centre for Data Ethics and Innovation. The policy will include an updated statement of our position on lethal autonomous weapons systems.

As the noble Lord, Lord Clement-Jones, said, there is no international agreement on the definition of such weapons systems, but the UK continues to contribute actively at the UN Convention on Certain Conventional Weapons, working closely with our international partners, seeking to build norms around their use and positive obligations to demonstrate how degrees of autonomy in weapons systems can be used in accordance with international humanitarian law. The defence AI centre will have a key role in delivering technical standards, including where these can support our implementation of ethical principles. The centre achieved initial operating capability last month and will continue to expand throughout this year, having already established joint military, government and industry multidisciplinary teams. The Centre for Data Ethics and Innovation has, over the past year, been working with the Ministry of Defence to develop ethical principles for the use of AI in defence—as, I should say, it has with the Centre for Connected and Autonomous Vehicles in the important context of self-driving vehicles.

The noble Baroness, Lady Merron, asked about the application of AI in the important sphere of the environment. Over the past two years, the Global Partnership on Artificial Intelligence’s data governance working group has brought together experts from across the world to advance international co-operation and collaboration in areas such as this. The UK’s Office for Artificial Intelligence provided more than £1 million to support two research projects on data trusts and data justice in collaboration with partner institutions including the Alan Turing Institute, the Open Data Institute and the Data Trusts Initiative at Cambridge University. These projects explored using data trusts to support action to protect our climate, as well as expanding understanding of data governance to include considerations of equity and justice.

The insights that have been raised in today’s debate and in the reports which tonight’s debate has concerned will continue to shape the Government’s thinking as we take forward our strategy on AI. As noble Lords have noted, by most measures the UK is a leader in AI, behind only the United States and China. We are home to one-third of Europe’s AI companies and twice as many as any other European nation. We are also third in the world for AI investment—again, behind the US and China—attracting twice as much venture capital as France and Germany combined, but we are not complacent. We are determined to keep building on our strengths, maintaining and building on this global position. This evening’s debate has provided many rich insights on the further steps we must take to make sure that the UK remains an AI and science superpower. I am very grateful to noble Lords, particularly to the noble Lord, Lord Clement-Jones, for instigating it.

[Lord Clement-Jones (LD)]

My Lords, first I thank noble Lords for having taken part in this debate. We certainly do not lack ambition around the table, so to speak. I think everybody saw the opportunities and the positives, but also saw the risks and challenges. I liked the use by the noble Baroness, Lady Merron, of the word “grappling”. I think we have grappled quite well today with some of the issues and I think the Minister, given what is quite a tricky cross-departmental need to pull everything together, made a very elegant fist of responding to the debate. Of course, inevitably, we want stronger meat in response on almost every occasion.

I am not going to do another wind-up speech, so to speak, but I think it was a very useful opportunity, prompted by the right reverend Prelate, to reflect on humanity. We cannot talk about artificial intelligence without talking about human intelligence. That is the extraordinary thing: the more you talk about what artificial intelligence can do, the more you have to talk about human endeavour and what humans can do. In that context, I congratulate the noble Lords, Lord Holmes and Lord Bilimoria, on their versatility. They both took part in the earlier debate, and it is very interesting to see the commonality between some of the issues raised in the previous debate on digital exclusion —human beings being excluded from opportunity— which arise also in the case of AI. I was very interested to see how, back to back, they managed to deal with all that.

The Minister said a number of things, but I think the trust and confidence aspect is vital. The proof of the pudding will be in the data reform Bill. I may differ slightly on that from the noble Lord, Lord Holmes, who thinks it is a pretty good thing, by the sound of it, but we do not know what it is going to contain. All I will say is that, when Professor Goldacre appeared before the Science and Technology Committee, I think it was a lesson for us all. He is the chap who has just written the definitive report on data use in the health area for the Department of Health, and he deliberately opted out, last year, of the GP request for consent to share data, and he is the leading data scientist in health. He was not convinced of the fact that his data would be safe. We can talk about trusted research environments and all that, but public trust in data use, whether it is in health or anything else, needs engagement by government and needs far more work.

The thing that frightens a lot of us is that we can see all the opportunities but if we do not get it right, and if we do not get permission to use the technology, we cannot deploy it in the way we conceived, whether it is for the sustainable development goals or for other forms of public benefit in the public service. Provided we get the compliance mechanisms right we can see the opportunities, but we have to get that public trust on board, not least in the area of lethal autonomous weapons. I think the perception of what the Government are doing in that area is very different from what the Ministry of Defence may think it is doing, particularly if they are developing some splendid principles of which we will all approve, when it is all about what is actually happening on the ground.

I will say no further. I am sure we will have further debates on this and I hope that the Minister has enjoyed having to brief himself for this debate, because it is very much part of the department’s responsibilities.

Legislative Reform (Renewal of National Radio Multiplex Licences) Order 2022

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Monday 4th April 2022 Grand Committee

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

My Lords, I am pleased to introduce a statutory instrument which was laid before your Lordships’ House on 31 January 2022: the draft Legislative Reform (Renewal of National Radio Multiplex Licences) Order 2022.

This is a short but important order that will bring clarity and certainty to the UK’s commercial radio sector. In particular, it will allow the holders of the two national commercial radio multiplex licences, Digital One and Sound Digital, to renew these licences for a further period—12 years and 7 years respectively—to 2035. This provision will have the most immediate effect for the Digital One licence, which is due to expire in November 2023. The measure meets the tests set out in the Legislative and Regulatory Reform Act 2006 and has been approved by the Delegated Powers and Regulatory Reform Committee of your Lordships’ House and the Business, Energy and Industrial Strategy Committee in another place as being appropriate for a legislative reform order with the affirmative procedure.

Since the launch of the Digital Radio Action Plan in 2010, the Government have supported the listener-led transition of radio from analogue to digital, through measures including the expansion of the digital transmission networks to substantially match FM coverage. There has been significant progress in the past decade. Digital radio now accounts for two-thirds of all radio listening, having been less than 30% 10 years ago.

Digital radio differs from analogue broadcasting, where a single encoded signal is broadcast on an analogue frequency, such as AM or FM. A digital radio multiplex or network compresses and bundles a number of radio services into one frequency and transmits it digitally to a certain geographic area. The signal is then decoded by a digital radio receiver used by listeners either in-home or in-vehicle. Digitisation allows radio broadcasters to use spectrum more efficiently, giving listeners more choice when listening to digital radio.

The UK’s independent broadcasting regulator, Ofcom, is responsible for the licensing of commercial digital radio multiplex services under Part 2 of the Broadcasting Act 1996. Radio multiplex services are licensed by Ofcom in terms of national, local and small-scale coverage.

Currently, there are two UK-wide national commercial digital radio multiplexes with around 20 digital radio stations broadcasting on each network. The licence holders are Digital One Ltd and Sound Digital Ltd. These two national digital radio multiplexes are an essential means of distributing national commercial radio stations to audiences across the UK. They have been successful in opening the national airwaves to more commercial radio services and in allowing commercial radio to compete with the BBC, which operates its own national multiplex.

The licence for the Digital One national radio multiplex was first issued in November 1999 and was granted with a right for one further renewal of 12 years. The licence was renewed by Ofcom in 2011 and runs to November 2023. The second licence is held by Sound Digital Ltd and was issued in March 2016. This multiplex licence will expire in March 2028 and currently has no renewal option.

Under the Broadcasting Act 1996, Ofcom does not at present have power to renew these national multiplex licences beyond the current expiry dates. Therefore, with the existing Digital One licence due to reach its final expiry date in November next year, and with Ofcom having no authority under the existing legislation to extend these further, the Government believed it was important to give the commercial radio operators who use these networks clarity and certainty about the future of the platform.

In July 2021, we issued a consultation to explore the options for reform: a do-nothing option, which would involve allowing the licences to be readvertised, or to legislate to allow the further renewal of the two licences for a further period, to either December 2030 or December 2035. Having carefully considered the feedback from the consultation, our conclusion was to legislate to allow for an automatic renewal of the two national radio multiplex licences. This was supported by the majority of respondents.

We believe that allowing the licences to be renewed will give national commercial radio broadcasters the long-term certainty and stability for their businesses and the confidence to continue to invest in digital radio services. It will also avoid a complex, disruptive and time-consuming relicensing process at a time when commercial radio is still recovering from the impacts of the Covid-19 pandemic on advertising revenues.

While some respondents were in favour of opening up the national radio multiplex licences to new competition, in our view a competitive bidding process for relicensing the licences would be disruptive and would have administrative, cost and management time burdens not just for the existing multiplex operators in rebidding for the licences but, more importantly, for the commercial radio stations carried on the networks. There would also be an administrative burden for Ofcom in running a competitive process for the licences.

Noble Lords may be concerned that the measure restricts competition. However, there has been little interest in operating a national radio multiplex, in part due to the high barriers to entry. There have been no market, technical or regulatory changes in recent years that would in our view make it more attractive for an external party to operate a national radio multiplex; indeed, digital radio is now an increasingly mature platform. The Business, Energy and Industrial Strategy Committee in another place considered this issue in detail and was satisfied that the competition concerns were fully considered by Her Majesty’s Government.

In setting the length of renewals, we reflected carefully on the feedback received from respondents, which was strongly supportive of a longer renewal for both licences. The provisions in this order will therefore update the legislation to allow Ofcom to grant a renewal of the national commercial radio multiplex licences for an additional 12 years in the case of the Digital One multiplex and seven years for the Sound Digital multiplex, with both licences to end on 31 December 2035.

In our view, the order will support the next phase of the radio industry’s transition towards digital transmission. It will provide national commercial radio operators much-needed certainty and the confidence to continue to invest in their digital services. I should make clear, however, that the Government, while supportive of the transition to digital transmission, have made no firm commitments about a future radio switchover. The joint industry and government Digital Radio and Audio Review, published in October last year, examined future trends and concluded that, while digital’s share of listening will continue to grow, FM will be needed until at least 2030—a view the Government support, given the important role that FM listening still plays for many radio listeners.

In summary, the order will allow for the renewal of the national multiplex licences. It will provide stability and certainty to the commercial radio industry during this tough time, while supporting the progress of UK radio and audio towards a digital future. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I cannot believe that this is going to be a mass event. I thank the Minister for his introduction to the LRO and welcome the commitment to digital radio represented by this LRO. However, as we noted during recent Oral Questions, we are all looking forward to the government response to the Digital Radio and Audio Review of last October, which has not yet been published. Perhaps the Minister would reveal a little more than he did about when we can expect it to be forthcoming—“spring” or “summer” would do; “shortly” is a word he might wish to deploy as well.

There are some questions to be answered, which I hope will appear in the response and which are relevant to today’s LRO. I recognise that the BEIS Select Committee asked some of these, but I want to go a little further. Clearly, IP radio is coming in in force, especially with smart speakers and voice assistants now beginning to replace dedicated radio sets. I for one will be interested in what the Government have to say about prominence and algorithmic curation of playlists, station selection and content, and how this will fit with the new statutory competition framework for the Digital Markets Unit.

Last week, representatives from news media and publishing, including radio, highlighted the need for the Government to introduce statutory powers for the DMU to help tackle the threat of tech platforms, but over the weekend there were reports that this may be dropped from the Queen’s Speech. Does the Minister recognise the urgency of putting in place such powers in regulating online gatekeepers such as smart speakers and voice assistants? What proposals will there be in the next parliamentary Session to address the significant current risk to media plurality and broadcasters’ business models from the digital platforms linked to these devices?

In June 2021, the then Secretary of State for DCMS announced plans for a broadcasting White Paper, which would address a range of issues, including regulation of commercial radio and prominence of UK radio services online and on smart speakers. When is this White Paper expected and will it address these issues?

However, surely key in all this is that spectrum for the multiplexes is a scarce commodity, and demand for it will depend on how much commercial radio DAB is replaced by IP broadcasting. Should not any renewal of the DAB multiplex licences have been set in context with the response to the review on this, particularly in terms of the competition issues associated with any renewal and the pressures on the two multiplexes? In addition, is not the potential change to mandatory licence conditions to include the necessity to include DAB+ relevant in terms of the pressure on the two systems, as well as the ability to satisfy demand for space on the multiplexes?

Similarly, I note the commitment mentioned by the Minister not to switch off FM services before 2030, despite digital reaching 66% of listening. Is not the future of FM relevant to the renewal of the multiplex licences? Will this be covered by the response to the review?

There seems little price competition in the grant of licences. In other areas, such as mobile telephony spectrum, we have seen a bidding system—why not in this area now that digital radio technology is well established?

The general impression is that the Government might have jumped the gun in this area, but in other areas relating to commercial radio they are dragging their heels. What can the Government say in response to all these concerns, many of which are shared by the commercial radio industry?

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful to both noble Lords for their comments and their support for the order. As ever, with a brisk debate such as this, it can be difficult to scribble down all the questions, so if I have missed anything I will of course write to noble Lords with points that I have not been able to address.

The noble Lord, Lord Bassam of Brighton, is right to name some of the much-loved stations that are covered by the order—that is the importance of this for radio listeners across the country, and it is right to have them in mind.

Both noble Lords took the opportunity, not unreasonably, to ask about other legislative vehicles. They will understand that, this close to the gracious Speech, I am limited in what I can say, but the Government certainly agree that the current commercial radio licensing framework requires simplification. In particular, we need a regulatory structure for commercial radio that supports investment by broadcasters in content and the long-term sustainability of the sector. We feel that the current structure falls short, and we will be introducing the relevant legislation as soon as parliamentary time allows. On other legislative vehicles, I am afraid that noble Lords will have to wait for the gracious Speech and the details contained therein.

On the legislative background and technical details, as I set out in my opening speech the Government have decided to allow the two national commercial radio multiplex licences on the digital terrestrial radio platform, which are due to expire, to be renewed for a further period. The two national multiplexes, which carry 44 national commercial radio stations, in total facilitate coverage to around 91% of homes across the UK at the moment.

The noble Lord, Lord Clement-Jones, asked about our support for this technology into the 2030s. We know that the terrestrial DAB platform is popular with UK audiences and plays an important role in supporting public service broadcasting by providing a universal, reliable, secure and free-to-air distribution channel. Audience figures from Radio Joint Audience Research show that DAB is the single largest platform, with a 42.5% share of all radio listening in the fourth quarter of last year. By contrast, analogue radio via FM or AM services continues to fall and accounts for 35.6% of all listening. Research for the joint government and industry Digital Radio and Audio Review indicates that the terrestrial DAB platform will continue to be the most important means by which listeners access radio content into the mid to late-2030s.

The noble Lord, Lord Clement-Jones, asked about the Digital Radio and Audio Review, which looked at the issue of smart speakers that we touched on in the Oral Question a few days ago. As I said then, we agree that good arguments have been made for taking action to protect radio’s long-term position, in the context of the rapid growth in usage of connected audio devices, and to ensure the continuation of the huge public value which radio provides. But, as we noted in the exchange on that Question, this will not be straightforward: any significant intervention in this area will need to be considered in the wider context of other work that we are carrying out, particularly in relation to digital markets and data protection reform. Both noble Lords asked when our response to the Digital Radio and Audio Review will be published; we expect to publish this response in the coming weeks.

We believe that the provisions in the order before us will allow national commercial radio operators to focus their efforts at this difficult time on continuing to deliver the vital news and entertainment that listeners value most, while supporting the ongoing transition towards a digital future for the radio sector. I commend this order to the Committee.

[Lord Clement-Jones (LD)]

Before the Minister sits down, one question that he has not really answered is why this LRO is taking place before the response to the review is available. The particular question that I asked in relation to that response was about the place of IP radio, for instance. This is all about what different kinds of radio broadcasting are taking place. Of course, if one wishes to renew these multiplexes, it is all about how much multiplex space is required relative to IP and FM. I talked about jumping the gun, but I do not quite understand why the LRO is taking place now, before the response, when if it were actually set in context we would have a much better idea when that response comes out.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, as I outlined at the beginning, this is the result of significant consultation, which agreed very much with the Government’s approach. We want to provide national commercial radio operators with the certainty and confidence that they need to continue to invest in their digital services, which is why we are doing it now. However, I will certainly write to the noble Lord with further detail on the point about IP radio, which we continue to look at. As we noted on the Question a few days ago, that area is changing rapidly. The landscape continues to evolve, but this order is being made so that the industry has the confidence and certainty that it needs to invest to support the transition to the digital future, which I think all noble Lords have agreed with today.

Broadcasting White Paper

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Monday 14th March 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

Yes, I agree with the noble Viscount. As I say, as the review noted, these devices have opened up new avenues for content creators to reach audiences with podcasts and other audio output. There are very exciting job opportunities for people in this area and part of the work we are leading through DCMS is to make sure that people have the opportunity to work in our vastly expanding creative industries.

[Lord Clement-Jones (LD)]

My Lords, tech platforms and smart speakers have now become gatekeepers to the UK radio broadcasters, with access to all their valuable audience data. Will the Government ensure that the long-delayed new statutory competition framework for the Competition and Markets Authority’s Digital Markets Unit becomes a priority, levels the playing field between broadcasters and online platforms and addresses the significant current risk to media plurality and radio broadcasters?

[Lord Parkinson of Whitley Bay (Con)]

We recognise that good arguments have been made for taking action to protect radio’s long-term position and ensure the continuation of the huge public value which radio provides. However, that will not be straightforward; any significant intervention in this area will need to be considered in the wider context of other work we are carrying out, particularly in relation to digital markets and data protection reform.

Children: Online Protection

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Thursday 10th February 2022 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, as chairman of the Proof of Age Standards Scheme board, I join the noble Baroness, Lady Kidron, in congratulating the Government on the work they are doing in this area. Can the Minister give us an update on the sandbox trial of technologies and an idea of when those trials might reach a conclusion, so that they can be rolled out? This is something that, for proof of age for buying alcohol and children’s online activities, will be an immensely positive step forward and one that is very welcome.

[Lord Parkinson of Whitley Bay (Con)]

I am grateful to my noble friend for her support for the new measures. I am afraid I do not have details of the specific trial to which she refers, so, if she will permit me, I will write to her with those details.

[Lord Clement-Jones (LD)]

My Lords, the Government seem to be bringing out their response in tantalising instalments. I can only speculate why, but, as a former member of the Joint Committee alongside the noble Baroness, Lady Kidron, I can only welcome what the Government have already announced. There are crucial elements to the control of commercial pornography: first, the age-assurance measures that were set out in the noble Baroness’s Private Member’s Bill, and, secondly, the age-appropriate design code protections for young children. There is, as yet, no indication that the Government have actually accepted the alignment of the age-appropriate design code with the online safety Bill regarding the commercial pornography elements. That is an important factor if we are really going to make sure that young people are safe.

[Lord Parkinson of Whitley Bay (Con)]

I hope we can continue to please the noble Lord and others with the work that we are doing in this area. The age-appropriate design code will play a key role in delivering protections for children ahead of and alongside the new online safety regulatory framework. We have aligned our approach with the code, which requires companies to apply its standards to protecting children’s personal data where they have assessed that children are likely to access their services. That will provide consistency for companies that may be required to comply with both the code and the provisions of the online safety Bill.

BBC Funding

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Tuesday 25th January 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

The number of people attending protests is often disputed by the people who take part, the police and the reports that are made of them, so I hope that my noble friend will forgive me if I am not drawn into my assessment of the protest or of the reports. The BBC is editorially independent. It reports the news in an independent way; it grapples with often highly politically charged issues as it does so, and it has a means for people who feel that its bulletins are not fair to make their voices heard and seek redress. That is one of the reasons why it is so cherished.

[Lord Clement-Jones (LD)]

The Minister did not answer the question of my noble friend Lady Bonham-Carter as to the consequences of the licence fee not being adjusted for inflation over the next two years. What is he suggesting the BBC should cut?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I have said that, as the BBC is operationally independent, it is for the BBC to decide how it spends its settlement of £23 billion over the settlement period, and how it serves the people who are funding it.

Telecommunications (Security) Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Consideration of Commons amendments
Monday 15th November 2021 Lords Chamber

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

My Lords, noble Lords will recall that this Bill will create one of the toughest telecoms security regimes in the world and ensure the security and resilience of the UK’s telecommunications networks and infrastructure.

Amendment 4, which was tabled by the noble Baroness, Lady Merron, and the noble Lords, Lord Alton of Liverpool and Lord Fox, would insert a new clause into the Bill. The clause would require the Secretary of State to report on the impact of the Government’s diversification strategy on the security of telecommunication networks and services, and would allow for a debate in another place on the report.

I ask that this House do not insist on its amendment for two reasons. Our first objection to this amendment relates to the flexibility necessary for diversification. The reporting requirement, which is based on the risks as we find them today, is restrictive and premature for a market and technology that is evolving and rapidly changing. Policy work is at an early stage, and the criteria for how we measure its success is evolving in line with our policy. It would not be suitable to set out specific reporting criteria in legislation.

The diversification strategy and any reporting on its progress must be flexible so that we can focus on achieving the greatest impact. As we hope diversification to be a short-term problem, enshrining it in legislation—a long-term solution—would be counterintuitive and unnecessary. We are currently focused on diversifying radio access networks, for instance, but that may change in the future.

The Government take diversification seriously. I reassure noble Lords that mechanisms are already in place, through Parliamentary Questions and Select Committees, to thoroughly scrutinise the strategy and its progress now and in the future. This is the appropriate method of scrutiny for an evolving, time-limited strategy.

Secondly, this is principally a national security Bill intended to strengthen the security and resilience of all our telecoms networks. The Government’s 5G telecoms diversification strategy has been developed to support that objective but it is not the sole objective of the strategy. In addition, the strategy is focused on a specific subset of the telecoms supply market, not the security of public networks as a whole.

From debates in your Lordships’ House so far, it is clear that this amendment intends to hold the Government to account on the impact of the diversification strategy on the security of public networks. We will be happy to provide updates on the strategy’s progress through existing channels, and are encouraged by the developments that we have seen since the strategy’s launch. The amendment would extend the Bill beyond its intended national security focus and creates an inflexible reporting requirement on a strategy that, as I say, will evolve as it fulfils this important work. That is why I ask your Lordships’ House not to insist on Amendment 4.

I shall also speak to Motion B, which asks that this House do not insist on its Amendment 5, to which the Commons have disagreed for their Reason 5A. As noble Lords will recall, Amendment 5 was tabled by the noble Lords, Lord Alton of Liverpool, Lord Coaker and Lord Fox, and my noble friend Lord Blencathra. The amendment would require the Secretary of State to review decisions taken by Five Eyes partners to ban telecommunications vendors on security grounds. In particular, it would require the Secretary of State to review the UK’s security arrangements with that vendor and consider whether to issue a designated vendor direction or take similar action in the UK.

As I said on Report, I welcome the intention of the amendment. It demonstrates that noble Lords across the House take the security of this country and its people incredibly seriously. However, while we support the spirit of the amendment, we cannot accept it for four reasons.

First, this amendment is unnecessary as the Bill already allows the Secretary of State to consider the policies of Five Eyes countries. Clause 16 includes a non-exhaustive list of factors that the Secretary of State may take into consideration when issuing designation notices regarding high-risk vendors. That list illustrates the kinds of factors we will be considering proactively and on an ongoing basis as part of our national security work. A decision by a Five Eyes partner or indeed any other international partner to ban a vendor on security grounds could be considered as part of that process. The amendment asks the Government to do something that has been part of the Bill from the outset. We believe that our existing approach is the right way to continually consider the decisions of all our international allies and partners.

Secondly, the amendment is unnecessary because we are already committed to a close and enduring partnership with the Five Eyes countries. We engage with our partners regularly and, where relevant, consider their actions when developing our own policies. The Five Eyes intelligence and security agencies maintain close co-operation, which includes frequent dialogue between the National Cyber Security Centre and its international partners. This dialogue includes the sharing of technical expertise on the security of telecoms networks and managing the risks posed by high-risk vendors. Engaging with our partners in this way is at the very core of our national security work.

In another place, members of the Intelligence and Security Committee agreed that the amendment was not necessary as the existing intelligence relationship with the Five Eyes, and other international parties, is strong. The chairman of the Intelligence and Security Committee, Dr Julian Lewis, said:

“We looked at Lords amendment 5 and we understood the temptation to flag up the importance of the Five Eyes relationship. We agreed ... whenever a serious objection is raised on security grounds by one of the Five Eyes partners, we take that with the utmost seriousness.”—[Official Report, Commons, 8/11/21; col. 119.]


The chairman of the DCMS Select Committee, Julian Knight MP, agreed and said that

“any Government worth their salt would take very seriously the approach of our closest security partners.”—[Official Report, Commons, 8/11/21; col. 117.]

Our third reason is that naming individual countries in legislation would be restrictive to the development of wider international relations and set an unhelpful precedent on national security legislation. The Five Eyes alliance was not created through legislation and it has not required legislation for us to develop and strengthen that relationship in the past. Moreover, we need to consider the policies of a wide range of countries, including those of our European neighbours such as France and Germany, and those of other nations such as Japan, South Korea and India, to name but a few. It is highly unusual to refer to specific countries in legislation in this way, and the amendment would set an unhelpful precedent for future legislation.

Finally, the amendment is impractical because of the many different ways other countries operate their national security decision-making. It may not be immediately clear when a country has taken a decision to ban a vendor, particularly if it relied on sensitive intelligence. It also may not be clear why a country has taken this decision, and it may not always be based on national security grounds. So, while I welcome the intentions behind the amendment, we cannot accept it and that is why I ask that the House does not insist on Amendment 5 either. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I hope my noble friend Lord Fox has given his apologies to the Minister for being unable to be here due to a Select Committee engagement. However, that does not mean that on these Benches we are any less disappointed—or indignant, as I think my noble friend Lord Fox would put it—about the Government having turned down both amendments, which my noble friend signed. The Minister is developing a fine turn of phrase in turning down amendments that appear perfectly sensible. On Report he talked about sharing the ambition and warmly welcoming the intent and then said that they did not quite fit the Bill and the Government could not accept these amendments. It is rather baffling since both are built very firmly on the Government’s expressed intentions —indeed, ambitions—set out in the integrated review. That was very clear in our debates on Report. It seems that the Government’s motives are much more firmly based on resistance to scrutiny and the idea that, somehow, they would be constrained in their work on diversification by having to report, in the case of Lords Amendment 4. However, the words he used were:

“legislating for a reporting requirement would be limiting and inflexible.”—[Official Report, 19/10/21; col. 86.]

Having reread the debate and heard again what the Minister had to say, I still cannot understand the Government’s rationale for this.

The rejection of Lords Amendment 5 is equally baffling because the Minister talks again about the limitation of the amendment to a particular set of countries. Surely, one of the reasons we are where we are, and the Government had to backtrack on their treatment of high-risk vendors, is precisely that they were not in step with their other Five Eyes allies. Therefore, the Government are not even learning from experience. We are where we are, however, and clearly we are not going to take this further, but I believe that the Government will regret not accepting both amendments.

Telecommunications (Security) Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Report stage
Tuesday 19th October 2021 Lords Chamber

[Baroness Merron (Lab)]

My Lords, I thank the noble Lords, Lord Clement-Jones and Lord Fox, for tabling this amendment and the noble Lord, Lord Clement-Jones, for his remarks. It certainly is key that Ofcom is able to do the job that it has been entrusted to do. On the matter of providers, I would say that their primary duty has to be to ensure that the networks are secure. We should expect no less from them. I will be very interested to hear how the Minister responds to the points that have been made in respect of this amendment.

[Lord Parkinson of Whitley Bay (Con)]

I thank the noble Lords, Lord Clement-Jones and Lord Fox, for tabling this amendment to Clause 13. I know the noble Lord, Lord Clement-Jones, in particular, has taken a keen interest in this area, not just in this Bill but in previous ones as well. I am grateful for the way that he set out the debate again today.

Clause 13 makes provision to ensure that the Competition Appeal Tribunal applies ordinary judicial review principles to appeals against certain security decisions made by Ofcom. Under such principles, those decisions can be successfully challenged only where they are unlawful, irrational or procedurally unfair. In setting the standard of appeal in this legislation, we must find a balance between giving telecoms providers a way to challenge Ofcom’s decisions should they be unfair and ensuring that the regulatory regime is effective and efficient.

Ofcom, as an experienced telecoms regulator, believes that changing the standard of appeal to judicial review principles for certain security decisions has the potential to make the regulatory process quicker and more efficient. The Government agree. We want to avoid either Ofcom or telecoms providers spending months in court.

It was never the intention of Parliament to set the standard of appeal, as it is now, to

“duly take into account the merits of the case”,

as this was dictated by EU law. In 2017 the Government changed the standard of appeal for reviewing decisions by Ofcom from a full merits approach to ordinary judicial review principles via Section 87 of the Digital Economy Act, as the noble Lord, Lord Clement-Jones, will well remember.

However, as EU law continued to apply, the Competition Appeal Tribunal subsequently decided that it had to apply a modified approach to

“duly take into account the merits of the case”.

In essence, this has prevented the provision in the Digital Economy Act, which had been approved by Parliament, taking effect. That rather unhappy outcome would continue to be the case for certain security decisions under the Bill should this clause not stand.

To be clear, Clause 13 applies the judicial review standard only to decisions such as those relating to the issuing of an assessment notice, which should be routine and quickly handled rather than being continuously delayed. It is not being applied to decisions about penalties such as those under Section 105T. Public telecoms providers will still be able to appeal those decisions as they do now, and the tribunal will

“duly take into account the merits of the case”.

Ultimately, we want public telecoms providers to spend their time addressing the security of the network. We do not want them to attempt indefinitely to delay an Ofcom decision by bringing cases against the regulator that do not stack up. We are not breaking new ground by changing to this standard of appeal. Judicial review principles are the normal standard by which most decisions of government and public bodies are legally reviewed.

Parliament has already decided that the standard of appeal for similar decisions under the Network and Information Systems Regulations 2018 should be ordinary judicial review principles. That is consistent with our policy approach in this Bill. Therefore, the Government feel that Clause 13 should stand part of this Bill as it will contribute to the efficiency of the regime and ensure that regulatory decisions are not unduly delayed. It will also ensure legislative consistency. I hope that reassures the noble Lord and that he will be content to withdraw his objection to this clause.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his response. I am afraid it does not particularly reassure but there will be many other occasions on which we can raise the nature of judicial review, its continual erosion, the Government’s approach to judicial review and their dislike of being challenged. This is fairly thin territory on which to be debating a very large issue in terms of the future of judicial review. I am sure that my other legal colleagues will be more than able to dispute some of those issues. There are many other fish to fry of even greater importance on this Bill so I will withdraw my amendment.

Telecommunications (Security) Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Committee stage
Tuesday 13th July 2021 Grand Committee

[Lord Parkinson of Whitley Bay (Con)]

I thank the noble Lords, Lord Fox and Lord Clement-Jones, for these amendments, and all noble Lords who have spoken in the debate. The amendments focus on the need for the regulations and code of practice to be proportionate, and to ensure that the duties of Ofcom are carried out in a transparent and similarly proportionate way.

I turn first to Amendment 10, tabled by the noble Lord, Lord Fox. This amendment to Clause 3 seeks to ensure that codes of practice are necessary and proportionate to what they are intended to achieve, and do not place an undue burden on telecoms providers. The Bill already includes provisions in Clauses 1 and 2 to ensure that security duties placed on public telecoms providers in the primary legislation and specific security measures set out in regulations must be considered to be appropriate and proportionate by the Secretary of State. The code of practice will provide the technical guidance on the steps that public telecoms providers should take to meet their security duties. I certainly agree with the noble Baroness, Lady Merron, about the extra—and indeed extraordinary—work that providers have done over recent months to keep us all in contact during the pandemic.

To help ensure that technical guidance in the code of practice is appropriate and proportionate, Clause 3 requires the Secretary of State to publish a draft version of the code of practice before it is issued, and to consult on its contents. This public consultation will take place after the Bill has attained Royal Assent; it will enable the voices of telecoms providers of all sizes—as noble Lords rightly pointed out—the wider sector, Ofcom, and any other affected groups to be heard and taken into account before the code of practice is finalised. Subsequent versions of the code of practice, which will be revised as technology evolves and new threats emerge, will also be subject to the same process of consultation before being issued.

An impact assessment is also being conducted for proposed secondary legislation to be laid as part of the new framework, which will take into account the initial cost assessments from providers to ensure that the framework is balanced and proportionate. The precise make-up and design of each provider’s network remains a commercial decision. The Bill makes it clear that providers are responsible for the security of their own networks and services; providers also remain responsible for deciding how they recover their costs. As such, we expect the costs of ensuring adequate security to be met by individual providers.

I turn to Amendments 16, 17 and 21, tabled by the noble Lord, Lord Clement-Jones. These seek to apply Sections 3 and 6 of the Communications Act 2003 to Ofcom’s duties and powers under Clauses 5, 6 and 19 of this Bill. Section 3 of the Communications Act sets out Ofcom’s general duties; these include a duty on Ofcom to have regard to the need for transparency, accountability and proportionality when carrying out its functions. Section 6 of the Communications Act requires Ofcom to review the burden of its regulation on telecoms providers. These are all principles that we think are essential to the functioning of the new security regime created by this Bill. I am glad to repeat the reassurance given by my noble friend in her letter, which the noble Lord, Lord Clement-Jones, mentioned, that Ofcom is already bound by its general duties in Sections 3 and 6 of the Communications Act when carrying out its security function under new Section 105M, and when using any of its powers in this Bill. This will include Ofcom’s power to carry out an assessment of public telecoms providers’ compliance with their security duties under Clause 6 of this Bill, and powers for Ofcom to give inspection notices under Clause 19. As my noble friend said in her letter, if Ofcom fails to carry out its security functions in line with these duties, it could be subject to legal challenge.

The provisions in the Bill already ensure that the regulations, code of practice and duties of Ofcom are proportionate. Therefore, we do not think that these amendments are necessary, and we hope that noble Lords will be happy not to press them.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for that—he pierced through the gloom of the afternoon, giving an assurance that existing duties of Ofcom will cover the new powers.

I think we have a Pepper v Hart situation that works for the other aspects on the code of practice. It is not just the regulations and the duties and powers of Ofcom that are subject to it; the way in which the code of practice will be drawn up is covered also by the duties under Sections 3 and 6 of the existing Act. I very much hope so, and I need to take away and read what the Minister had to say.

Covid-19: University Students

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Monday 16th November 2020 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

On 7 November, my honourable friend the Universities Minister wrote to the universities with details on the mass testing programme. We are working closely with the sector on that, targeting mass testing at universities based on factors such as the local prevalence of Covid-19 and the proportion of high-risk students at their institutions.

[Lord Clement-Jones (LD)]

My Lords, as the chair of a university governing body, I pay my own tribute to the staff and students in universities who are adapting so well to these exceptionally difficult conditions, and I welcome the Christmas travel window guidance. But urgent guidance is needed so that staff and students are able to return after Christmas, to ensure minimum disruption of the new term. When will that be available?

[Lord Parkinson of Whitley Bay (Con)]

My honourable friend also wrote this week to universities and to students about the plans for returning home for Christmas at the end of term. The noble Lord is absolutely right that people will want a bit of certainty about the resumption of education in January. Our hope is to be able to provide that guidance before the end of term so that everyone knows the situation going into the Christmas holidays. But of course, like everything, that will depend on developments in the virus and the pandemic.

Telecommunications Infrastructure (Leasehold Property) Bill

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 19th May 2020 Lords Chamber

[Lord Parkinson of Whitley Bay]

My Lords, we have tried to strike a balance in the Bill so far between the requirements and the desires of providers and of course the rights of those owning property. At the moment, the evidence suggests that there is a distinction between multiple residential dwellings––where the owner of the building is perhaps not as easily contactable or is not responding––and business parks, for instance, whose owners seem to be more alert to requests from providers and are therefore responding in a more timely fashion to requests. However, if the evidence suggests that they are not, then the secondary power proposed in the Bill will allow the Secretary of State to make provisions and bring forward some statutory instrument to extend the Bill in this way, as the noble Lord, Lord Fox, says.

[Lord Clement-Jones]

My Lords, I thank the Minister for his response to my noble friend Lord Fox, for which I am grateful. The fact is that the Government have actually got the wrong mindset on this. This is not some precious commodity to be supplicated for by a group of property tenants or lessees. This is absolutely a utility, as we have debated and discussed throughout the relatively short period of this Committee.

That shows the poverty of ambition behind the Bill and, in a sense, behind the 1-gigabit strategy put forward by the Government. We should allow 1 gigabit to be laid by operators in all those places. Small businesses, almost more than ordinary consumers, are in desperate need of good connectivity. As we have seen, online business is now absolutely crucial, yet many business parks do not have proper connectivity.

--- Later in debate ---

[Lord Parkinson of Whitley Bay]

The Government are certainly very ambitious regarding the provision of sufficiently fast broadband for everybody. As mooted earlier in the proceedings, the current situation, with so many people working from home and relying on the internet to communicate with their loved ones, underlines its vital importance. We aim to lay the regulations as soon as possible, but I will be happy to write to noble Lords with further details of when they will come into effect.

[Lord Clement-Jones]

I thank the Minister for that clarification. Therefore, as yet the regulations are not in place and, as yet, there is no new-build obligation. We very much look forward to the Minister’s letter setting that out. I hope that there will be a sense of urgency, because the regulations were promised last year in the Conservative Party manifesto, and of course there is a great expectation that the manifesto will be fulfilled.

I thank the Minister for some of his clarifications. I keep urging the Government to be more ambitious but, in the meantime, I beg leave to withdraw the amendment.

Judicial Pensions and Fee-Paid Judges’ Pension Schemes (Contributions) (Amendment) Regulations 2020

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Monday 23rd March 2020 Grand Committee

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am speaking on behalf of my noble and learned friend Lord Keen of Elie.

The draft regulations before us today relate to judicial pension schemes’ member contribution rates. The purpose of these draft regulations is to amend the current member contribution rates and earning thresholds in two different judicial pensions schemes for subsequent financial years. These schemes are: the Judicial Pension Scheme 2015, which was established by the Judicial Pensions Regulations 2015, following wider public service pension reforms; and the Fee-Paid Judicial Pension Scheme 2017, which was established by the Judicial Pensions (Fee-Paid Judges) Regulations 2017, following the Supreme Court decision in 2013 in the case of O’Brien, in order to provide fee-paid judges with a pension.

Both the 2015 and 2017 regulations made provision for contributions payable by members, and they set a different rate of contribution dependent on the salaries or fees earned by a judge in a year. The regulations being debated today maintain the existing member contribution rates in both schemes for the financial year 2020-21 and each year thereafter, until such time as alternative provisions are made.

The regulations also uprate the earning thresholds, under £150,001 per annum, of the member contribution rate structure for both schemes on 1 April 2020 in line with the consumer prices index. Additionally, the regulations provide that the related earning thresholds will be uprated each year automatically in April in line with the consumer prices index rate of the previous September.

These regulations amend judicial pension schemes that are UK-wide. The Ministry of Justice has ensured that all devolved Administrations have been informed of progress, and they support our proposed approach. The Northern Ireland Department of Justice has its own Northern Ireland Judicial Pension Scheme 2015. It therefore proceeded with its own regulations in January 2020, which followed the ministry’s policy approach.

The reason for making these amendment regulations is that the current provisions for member contribution rates will expire on 31 March 2020. The draft regulations are needed to specify the member contribution rates that will apply from 1 April 2020 onwards. These regulations will enable the Ministry of Justice to ensure the continuing operation of the schemes by deducting the appropriate member contributions from judicial salaries and fees.

Given the ongoing uncertainty about the value of public service pensions after April 2015—due to recent litigation, the McCloud litigation, and the consequential decision to pause one element of the actuarial valuation of the schemes—the Government propose to maintain existing contribution rates from 1 April 2020 onwards.

Having referred to the impact of the actuarial valuation and the McCloud litigation on these regulations, it might be helpful if I recapitulate some brief background details. Following the 2015 reform of public service pension schemes and under the current legislative framework, government departments are required to undertake valuations of public service pension schemes, including the judicial pension scheme, every four years. The valuation does two things. First, it informs the employer contribution rates. Secondly, it tests whether the value of the schemes to current members has moved from target levels and needs to be adjusted to bring them back to that point, which is known as the cost control mechanism.

Work was undertaken from March 2016 on the first such valuation of public service pension schemes to analyse the provisional results of the valuation for each affected scheme. This work was affected by the age discrimination cases brought by members of the judicial and firefighters’ pension schemes—the McCloud litigation. As your Lordships will no doubt recall, this litigation concerned the transitional protection policy that was applied by the Government in implementing the 2015 public service pension scheme reforms. The courts found that the transitional protection policy amounted to unlawful age discrimination, and in June 2019 the Government’s application for permission to appeal was refused by the Supreme Court.

In January 2019, the Government took the decision to pause the cost control element of the valuation. It was prudent to do so, because the effect of the McCloud litigation on public service pension schemes was unclear. While the outcome of that litigation is now known, addressing the discrimination, including settling the details of tax treatment, is a complicated process, involving decisions across a number of government departments, and will take some time to deliver. The pause of the cost control mechanism will therefore continue until there is more clarity about the shape of the McCloud remedy.

To avoid the need to make further interim regulations, the regulations propose that the existing rates will continue to apply with no specific expiry date. This is a pragmatic measure reflecting the fact that the timeline for resolving the issues arising from the McCloud case is uncertain. Once this work is complete, and the outcome of the cost control element of the valuation is known, the Government will reconsider whether further changes to member contribution rates for these schemes are required.

No changes were made to the earning thresholds for member contribution rates as part of the measures put in place for 2019-20. However, the Government are mindful that it would not be desirable for the earning thresholds to fall significantly out of step with salary or fee rates. That is why the regulations provide that all earning thresholds below the top £150,001 threshold are uprated each year in line with CPI. This approach is consistent with various other aspects of public service pensions. In recent years, increases to public service pensions in payment have been in line with the September-to-September increase in CPI. CPI is already used to annually uprate the earning thresholds in other public service pension schemes, such as the Local Government Pension Scheme and the Teachers’ Pension Scheme.

The £150,001 band will not be increased. In the 2015 scheme, the rates have been designed to align with the top rate of income tax such that the net-of-tax contribution rates are broadly the same above and below the £150,001 threshold. In the case of the fee-paid 2017 scheme, the total contribution rates are broadly the same, when the member and dependant contribution rates are taken together. Additionally, the Government consider it desirable to maintain broad parity between the Judicial Pensions and Retirement Act 1993 and the two sets of judicial pension regulations being amended, as the £150,001 threshold is common across all judicial schemes.

As the regulations provide that the lower earning thresholds will be uprated each year automatically, similar provisions will not be needed next year. However, the Government will revisit the question of appropriate levels of contribution rates and thresholds once wider pension issues have been resolved.

The relevant legislation—Section 22 of the Public Service Pensions Act 2013—requires the Government to fulfil a number of procedural requirements before making changes to features of the scheme under the 2015 regulations which are classed as protected elements. Member contribution rates are one such protected element, and as such cannot be altered without the Government first consulting the persons or representatives of those persons affected with a view to reaching agreement. I can confirm that the Ministry of Justice issued a four-week consultation, which ran from 25 October to 22 November 2019. The Ministry of Justice consulted representative judicial organisations with a view to reaching agreement. An additional statutory requirement for changes to protected elements is that an accompanying report must be laid before Parliament setting out the rationale for the amendment. I can confirm that such a report has been laid. Separately, the Government also satisfied the requirement to consult the Secretary of State for Scotland in relation to judicial offices with Scottish jurisdiction, and he was content with the proposal.

Under this further interim measure, the cost of accruing pension scheme benefits will remain the same for most members but will be reduced for some members, as they will pay contributions at a lower rate than they would have done if no changes were made to the earning thresholds.

I conclude by reinforcing the point that the existing arrangements for member contribution rates will expire on 31 March 2020, in relation to both the 2015 and the 2017 judicial pension schemes. Therefore, these draft regulations are a necessary further interim measure to continue the effective operation of these pension schemes, until a long-term solution is put in place. I hope that noble Lords will agree that these regulations are a necessary interim measure to continue the arrangements for member contribution rates and for the effective operation of the judicial pension scheme. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I thank the noble Lord for his comprehensive introduction. We are all understudies now—I had a crash course on judicial pensions over the weekend. Learning up on O’Brien, McCloud and Miller has not been a happy experience for me or, I suspect, for the Ministry of Justice over a period of years. Being very familiar with higher education pensions, I understand that there are a lot of bear traps in the whole area of pensions and that people feel very strongly about them because they secure their future.

I do not need to pick over the individual details of the instrument—these regulations are very clear and they do the right thing—but this is an opportunity to kick the tyres slightly on the matter of policy. Following the Miller case, the Ministry of Justice is clearly going to have to set aside a certain sum to make sure that the pensions are funded and are non-discriminatory. There have been a lot of estimates, ranging from £300 million to £1 billion, and it would be useful to know whether the noble Lord is possessed of any idea of how much this is going to cost as a consequence of that case.

My second question is about the policy on judicial diversity. The Miller case was all about discrimination, but we are trying to create greater judicial diversity and that goes to the key issue of how pensions operate so that they do not discriminate against people who are part-time or those who enter the scheme late and so on. The July 2019 figures show that just 7% of court judges are BAME and 32% are women. Is it not time that we set clear targets for better gender balance and BAME balance and gave those targets real teeth?

Justices of the Peace and Authorised Court and Tribunal Staff (Costs) Regulations 2020

Debate between Lord Clement-Jones and Lord Parkinson of Whitley Bay

Monday 23rd March 2020 Grand Committee

[Lord Parkinson of Whitley Bay (Con)]

My Lords, these regulations form part of the Government's implementation of the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018. In accordance with the requirements of that Act, the Lord Chief Justice and Senior President of Tribunals have been consulted, and both have indicated approval of the regulations. The regulations have also been discussed and debated in the other place and passed.

The regulations are rather technical, but they have the important purpose of underpinning the protection which the Act gives to authorised court and tribunal officers, so that they can work effectively. That protection takes the form of indemnity against liability for actions carried out in good faith in the performance of judicial functions. These regulations ensure that, where legal proceedings are brought against an authorised officer in respect of any such action, there is a functioning and regulated procedure for costs to be paid to the litigant, without the individual authorised officer being liable to pay them.

I will briefly draw out the main points of the instrument. The Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 provides for staff in the courts and tribunals to be authorised by the Lord Chief Justice or the Senior President of Tribunals, or somebody nominated by them, to exercise judicial functions. The specific functions that these staff may exercise, and any qualifications they must have in order to be authorised to exercise them, will be set out in procedure rules. The Act also grants these officers protections akin to those that are currently in place for justices of the peace, justices’ clerks and legal advisers, to ensure that they have the necessary independence to carry out these functions.

The Act protects the independence of authorised officers by indemnifying them against liability for anything that they do, or omit to do, when carrying out judicial functions in good faith. It also protects such officers from costs arising from any proceedings brought against them in respect of acts or omissions made in the course of exercising judicial functions in good faith. These protections mirror those which are currently afforded to justices of the peace—whose role and protections are unaffected by the Act except in a rather technical way which I will explain in due course—and to justices’ clerks, whose office is abolished by the Act and replaced by the role of authorised officers.

If legal proceedings are brought against an authorised officer in respect of action taken by that officer in the exercise of judicial functions, and those proceedings are successful, costs may still need to be paid to the successful litigant. The 2018 Act provides that the Lord Chancellor, and not an individual authorised officer, would be ordered to make that payment. These regulations outline the procedure to be followed when an order for costs is sought, and the scope of such an order. They specify the circumstances in which a court may order the Lord Chancellor to pay costs in proceedings, when such an order can or cannot be made, and how the amount to be paid will be determined. The regulations maintain the protection that the Act gives to authorised officers from having to pay costs, while at the same time ensuring there is a mechanism by which the legal costs of a successful litigant may be paid.

There are long-established provisions in relation to costs in any court proceedings brought against justices’ clerks and legal advisers, or against justices of the peace, which have been working effectively over the past 18 years.

The 2018 Act abolishes the offices of justices’ clerk and justices’ clerk’s assistant and replaces them with provision for appropriately qualified court or tribunal staff to be authorised to perform certain judicial functions. Because the provisions now cover staff in tribunals, they also extend to staff authorised to exercise judicial functions in reserved tribunals in Northern Ireland and Scotland. The existing regulations, which apply to justices’ clerks, therefore need to be replaced with regulations that instead cover all staff who may be authorised to exercise judicial functions.

The regulations therefore have three parts, with different extent. The first part extends to the whole United Kingdom, but is merely introductory. The second part, which extends to England and Wales only, makes provision covering costs in proceedings in relation to actions of justices of the peace and authorised court staff. The third part, which extends to the whole United Kingdom, makes provision covering costs in proceedings in relation to actions of authorised tribunal staff. The second part of the regulations is to all intents and purposes identical to the provision for justices of the peace and justices’ clerks which it replaces. The third part of the regulations differs slightly, because it has to make different provision for the way that any costs paid by the Lord Chancellor are assessed for Northern Ireland and for Scotland, corresponding to the way costs—or, in Scotland, expenses—are assessed.

I said that I would briefly explain how the regulations apply to justices of the peace. Although the Act does not affect the role of justices of the peace, the way the powers to make regulations are structured means that the existing regulations cease to have effect. It is therefore necessary to re-enact the provisions of the existing regulations as they apply to justices of the peace, as well as making the new provision, mirroring the existing provision, for authorised court and tribunal staff. I reiterate that the new regulations largely maintain the status quo and simply extend to all authorised officers the same provisions that currently apply to just justices’ clerks and assistant clerks and reproduce those provisions for justices of the peace.

These regulations will ensure consistency on how courts approach costs in these rare cases and guard against excessive, or indeed insufficient, orders being made in courts across England, Wales, Scotland and Northern Ireland. The regulations have no impact in terms of cost to the public sector because they substantially replicate what is provided for currently.

The purpose of these regulations is simply to provide certainty, to ensure there is a functioning and regulated procedure for the payment of costs to litigants in proceedings against authorised officers, and to provide clarity for the courts and tribunals on how costs should be managed in such cases. I commend this instrument to the House and beg to move.

[Lord Clement-Jones (LD)]

My Lords, I thank the noble Lord for again introducing the SI so comprehensively. It just shows how remote lawyers in other fields sometimes are that I did not notice that the justices’ clerk had been abolished; I confess that it was only when I read this SI that I realised that this very long-standing, almost Dickensian pedigree was no longer with us.

Obviously it is extremely desirable that authorised courts or tribunal staff are supported in this way. My only question is about the use of the word “mirroring”, a word that occurs all the way through the Explanatory Notes. Does that mean effectively that the right to costs is identical between the previous justices’ clerks and the current appropriately qualified court or tribunal staff who are authorised to perform certain judicial functions, or has some difference crept in that is either more or less generous?