Online Safety Bill

Lord Hope of Craighead Excerpts

Report stage
Wednesday 19th July 2023 Lords Chamber

[Lord Clement-Jones (LD)]

I support the amendment of the noble Lord, Lord Stevenson. Here is an opportunity for the Minister to build a legislative monument. I hope he will take it. The reason I associate myself with it is because the noble Lord, Lord Stevenson—who has been sparing in his quoting of the Joint Committee’s report, compared with mine—referred to it and it all made very good sense.

The amendment stumbles only in the opinion of the Government, it seems, on the basis that parliamentary committees need to be decided on by Parliament, rather than the Executive. But this is a very fine distinction, in my view, given that the Government, in a sense, control the legislature and therefore could will the means to do this, even if it was not by legislation. A nod from the Minister would ensure that this would indeed take place. It is very much needed. It was the Communications and Digital Committee, I think, that introduced the idea that we picked up in the Joint Committee, so it has a very good provenance.

[Lord Hope of Craighead (CB)]

My Lords, I offer my support to the amendment. I spent some time arguing in the retained EU law Bill for increased parliamentary scrutiny. My various amendments did not succeed but at the end of the day—on the final day of ping-pong—the Minister, the noble Lord, Lord Callanan, gave certain assurances based on what is in Schedule 5 to that Act, as it now is, involving scrutiny through committees. So the basic scheme which my noble kinsman has proposed is one which has a certain amount of precedent—although it is not an exact precedent; what might have been the “Callanan rule” is still open to reconstruction as the “Parkinson rule”. I support the amendment in principle.

[Baroness Stowell of Beeston (Con)]

My Lords, as the noble Lords, Lord Stevenson and Lord Clement-Jones, have already said, the Communications and Digital Select Committee did indeed recommend a new Joint Committee of both Houses to look specifically at the various different aspects of Ofcom’s implementation of what will be the Online Safety Act and ongoing regulation of digital matters. It is something I still have a lot of sympathy for. However, there has not been much appetite for such a Joint Committee at the other end of the Corridor. I do not necessarily think we should give up on that, and I will come back to that in a moment, but in place of that, I am not keen on what is proposed in Amendment 239, because my fear about how that is laid out is that it introduces something that appears a bit too burdensome and probably introduces too much delay in implementation.

To return to the bigger question, I think that we as parliamentarians need to reflect on our oversight of regulators, to which we are delegating significant new powers and requiring them to adopt a much more principles-based approach to regulation to cope with the fast pace of change in the technological world. We have to reflect on whether our current set-up is adequate for the way in which that is changing. What I have in mind is very much a strategic level of oversight, rather than scrutinising operational decisions, although, notwithstanding what the noble Lord has said, something specific in terms of implementation of the Bill and other new legislation is an area I would certainly wish to explore further.

The other aspect of this is making sure that our regulators keep pace too, not just with technology, and apply the new powers we give them in a way which meets our original intentions, but with the new political dynamics. Earlier today in your Lordships’ Chamber, there was a Question about how banks are dealing with political issues, and that raises questions about how the FCA is regulating the banking community. We must not forget that the Bill is about regulating content, and that makes it ever more sensitive. We need to keep reminding ourselves about this; it is very new and very different.

As has been acknowledged, there will continue to be a role for the Communications and Digital Select Committee, which I have the great privilege of chairing, in overseeing Ofcom. My noble friend Lord Grade and Dame Melanie Dawes appeared before us only a week ago. There is a role for the SIT Committee in the Commons; there is also probably some kind of ongoing role for the DCMS Select Committee in the Commons too, I am not sure. In a way, the fractured nature of that oversight makes it all the more critical that we join up a bit more. So I will take it upon myself to give this more thought and speak to the respective chairs of those committees in the other place, but I think that at some point we will need to consider, in some other fora, the way in which we are overseeing the work of regulators.

At some point, I think we will need to address the specific recommendations in the pre-legislative committee’s report, which were very much in line with what my own committee thought was right for the future of digital regulatory oversight, but on this occasion, I will not be supporting the specifics of Amendment 239.

Online Safety Bill

Lord Hope of Craighead Excerpts

Report stage
Monday 10th July 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I speak to Amendments 286 and 294, which are the last two amendments in this group, and I will explain what they are about. They are in the name of the noble Baroness, Lady Fraser of Craigmaddie, who unfortunately cannot be here this evening, to which I and the noble Lord, Lord Stevenson of Balmacara, have added our names, as has the Minister, for which we are very grateful. They serve a simple purpose: they seek to insert a definition of the phrase “freedom of expression” into the list of definitions in Clause 211 and add it to the index of defined expressions in Clause 212.

They follow an amendment which I proposed in Committee. My amendment at that stage was to insert the definition into Clause 18, where the phrase

“freedom of expression within the law”

appears. It was prompted by a point made by the Constitution Committee in its report on the Bill, which said that the House might wish to consider defining that expression in the interests of legal certainty.

The same point arose when the House was considering the then Higher Education (Freedom of Speech) Bill. Following a similar amendment by me, a government amendment on Report, to achieve the same result, was agreed to that Bill. My amendment in Committee on this Bill adopted the same wording as the government amendment to that Bill. In his response to what I said in Committee, the Minister pointed out, quite correctly, that the Higher Education (Freedom of Speech) Act and this Bill serve quite different purposes, but he did say that the Bill team—and he himself—would consider our amendment closely between then and Report.

What has happened since is the amendment we are now proposing, which has undergone some changes since Committee. They are the product of some very helpful discussions with the Bill team. The most important is that the definition placed in Clause 211 extends to the use of the expression “freedom of expression” wherever it appears in the Bill, which is obviously a sensible change. It also now includes the word “receive” as well as the word “impart”, so that it extends to both kinds of communication that are within the scope of the Bill. The words “including in electronic form”, which are in my amendment, have been removed as unnecessary, as the Bill is concerned with communications in electronic form only.

There are also two provisions in the Bill which refer to freedom of expression to which, as the definition now makes clear, this definition is not to apply. They are in Clauses 36(6)(f) and 69(2)(d). This is because the context in which the expression is used there is quite different. They require Ofcom to consult people with expertise as to this right when preparing codes of conduct. They are not dealing with the duties of providers, which is what the definition aims to do.

As the discussion in Committee showed, and as the noble Baroness, Lady Fox, demonstrated again this evening, we tend to use the phrases “freedom of speech” and “freedom of expression” interchangeably, perhaps without very much thought as to what they really mean and how they relate to other aspects of the idea. That is why legal certainty matters when they appear in legislation. The interests of legal certainty will be met if this definition finds a place in the Bill, and it makes it clear that the reference is to the expression referred to in Article 10(1) of the convention as it has effect for the purposes of the Human Rights Act. That is as generous and comprehensive a definition as one would wish to have for the purposes of the Bill.

I am grateful to the Minister for his support and to the Bill team for their help. When the times come, either the noble Baroness, Lady Fraser, or I will move the amendment; it comes at the very end of the Bill so it will be at the last moment of the last day, when we are finishing Report. I look forward to that stage, as I am sure the Minister does himself.

[Lord Allan of Hallam (LD)]

My Lords, I want to respond to some of the comments made by the noble Baroness, Lady Fox, and the noble Lord, Lord Moylan. I have been looking forward to this debate equally, as it touches on some crucial issues. One of the mistakes of the Bill that I place on the Government is that it was sold as somehow a balancing Bill. It is not; it is a speech-limiting Bill, as all Bills of this kind are. Its primary purpose is to prevent people in the United Kingdom encountering certain types of content.

If you support the Bill, it is because you believe that those restrictions are necessary and proportionate in the context of Article 8. Others will disagree. We cannot pretend that it is boosting free speech. The United States got it right in its first amendment. If you want to maximise speech, you prohibit your parliament regulating on speech: “Congress shall make no law that limits speech”. As soon as you start regulating, you tend towards limitations; the question in the UK and European contexts is whether those limitations are justified and justifiable.

Online Safety Bill

Lord Hope of Craighead Excerpts

Committee stage
Tuesday 16th May 2023 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I warmly support the amendment moved by the noble Baroness, Lady Fraser of Craigmaddie, to which I have added my name. I agree with every word she said in her introduction. I could not have said it better and I have nothing to add.

[Lord Hope of Craighead (CB)]

My Lords, I follow the noble Lord, Lord Foulkes, with just a few words. As we have been reminded, I tabled Amendment 63, which has already been debated. The Minister will remember that my point was about legal certainty; I was not concerned with devolution, although I mentioned Amendment 58 just to remind him that we are dealing with all parts of the United Kingdom in the Bill and it is important that the expression should have the same meaning throughout all parts.

We are faced with the interesting situation which arose in the strikes Bill: the subject matter of the Bill is reserved, but one must have regard to the fact that its effects spread into devolved areas, which have their own systems of justice, health and education. That is why there is great force in the point that the noble Baroness, Lady Fraser, has been making. I join the noble Lord, Lord Foulkes, in endorsing what she said without going back into the detail, but remind the Minister that devolution exists, even though we are dealing with reserved matters.

[Lord Clement-Jones (LD)]

My Lords, this is unfamiliar territory for me, but the comprehensive introduction of the noble Baroness, Lady Fraser, has clarified the issue. I am only disappointed that we had such a short speech from the noble Lord, Lord Foulkes—uncharacteristic, perhaps I could say—but it was good to hear from the noble and learned Lord, Lord Hope, on this subject as well. The noble Baroness’s phrase “devolution deficit” is very useful shorthand for some of these issues. She has raised a number of questions about the Secretary of State’s powers under Clause 53(5)(c): the process, the method of consultation and whether there is a role for Ofcom’s national advisory committees. Greater transparency in order to understand which offences overlap in all this would be very useful. She deliberately did not go for one solution or another, but issues clearly arise where the thresholds are different. It would be good to hear how the Government are going to resolve this issue.

Online Safety Bill

Lord Hope of Craighead Excerpts

Committee stage
Tuesday 9th May 2023 Lords Chamber

The concept of harm, once expanded to include psychological harm, is subject to concept creep and subjectivity. The lack of definition was challenged by the Lords Communications and Digital Committee when it wrote to the Secretary of State asking whether psychological harm had any objective clinical basis. DCMS simply confirmed that it did not, yet psychological harm is going to be used as a basis for removing lawful speech from the online world. That can lead only to a censorious and, ironically, more toxic online environment, with users posting in good faith finding their access to services—access that is part of the democratic public square—being shut down temporarily or permanently, even reported to the law or what have you, just because they have been accused of causing psychological harm. The free speech elements of the Bill need to be strengthened enormously.

[Lord Hope of Craighead (CB)]

My Lords, my Amendment 63 is about the meaning of words. It was an interesting feature of the speech made by the noble Baroness, Lady Fox of Buckley, which we have just had the pleasure of listening to, that she slipped from time to time from the phrase “freedom of expression” to “freedom of speech”. That is not a criticism; it is very easy for one to treat these expressions as meaning the same thing. Others in this debate have done the same thing. I think that the noble Baroness, Lady Stowell, used “freedom of speech” sometimes, as well as “freedom of expression”. It is not a criticism; it is just a fact that we tend to treat the two the same.

However, the Government in Clause 18 have chosen to use the words

“freedom of expression within the law”.

My amendment draws attention to that feature. If we work our way through Clause 18, its purpose is to set out the duties about freedom of expression and privacy that are to apply in relation to the user-to-user services referred to in that clause. Clause 18(2) imposes on those providing user-to-user services

“a duty to have particular regard to the importance of protecting users’ right to freedom of expression within the law”

when deciding on and implementing safety measures and policies. Clause 18(8) provides a definition of the phrase “safety measures and policies”, which

“means measures and policies designed to secure compliance with any of the duties set out”

in previous clauses of the Bill. These extend to illegal content, to children’s online safety, to user empowerment, to content reporting relating to illegal content and content that is likely to be harmful to children, and to complaints procedures. So a balance has to be struck between giving effect to the right to freedom of expression within the law and performing the important duties referred to in the clause. As Clause 18(4) explains, when decisions are being taken about the safety measures and policies that are to be introduced or applied, there must be an assessment of the impact that they would have on the user’s right to freedom of expression within the law.

My amendment was prompted by a point made by the Constitution Committee, of which I am a member, in its report on the Bill. It suggested that the House might wish to consider whether, in the interests of legal certainty, the expression “freedom of expression” should also be defined for the purposes of this clause.

The committee referred to the fact that in its report on the on the Higher Education (Freedom of Speech) Bill, it recommended that that Bill should define the expression “freedom of speech”, which is what that Bill was talking about, by referring to Article 10 of the European Convention on Human Rights. I raised this issue by proposing an amendment to that effect in Committee on that Bill. On Report, a government amendment to achieve that was agreed to and, in due course, it was also agreed by the House of Commons. My Amendment 63 adopts the same wording as that used in the Higher Education (Freedom of Speech) Bill, and I suggest that it should be adopted here, too, in the interests of consistency and to provide the desirable element of legal certainty.

Although it appears in a different group, I think it is worth referring to Amendment 58 in the names of the noble Baroness, Lady Fraser of Craigmaddie, and the noble Lord, Lord Foulkes of Cumnock. It proposes the insertion of the words

“as defined under the Human Rights Act 1998 and its application to the United Kingdom”,

so it is making the same point and an additional one, which is this. We have to be very careful in this Bill to recognise that it extends to all parts of the United Kingdom, particularly in regard to the devolved Administrations in Scotland, Wales and Northern Ireland. Scotland is very active in promoting legislation dealing with matters of this kind, and it is rather important that we should define in the Bill what is meant by

“freedom of expression within the law”

in its application throughout the United Kingdom, lest there should be any doubt as to what it might mean in the other parts of this country—particularly, if I may say so, with regard to Scotland. The noble Baroness, Lady Fraser, may say more about this at this stage, although her amendment is in a different group, because it is very pertinent to the point I am trying to make about the need for a definition in Clause 18.

That is the reasoning behind the amendment, and I come back to the interesting feature that one tends to mix the expressions “freedom of speech” and “freedom of expression”, but it is important to anchor exactly why the Government chose to use the words

“freedom of expression within the law”

for the purposes of this clause.

Data Protection Bill [HL]

Lord Hope of Craighead Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 13th November 2017 Lords Chamber

[Lord Pannick (CB)]

My Lords, I shall speak to Amendment 86BA, in my name. It concerns the application of data protection principles in the context of the law of trusts. The law has long recognised that a trustee is not obliged to disclose to a beneficiary the trustee’s confidential reasons for exercising or not exercising a discretionary power. This is known as the Londonderry principle, named after a case decided by the Court of Appeal, reported in 1965, Chancery Division, page 9.1.8. The rationale of this principle was helpfully summarised by Mr Justice Briggs—recently elevated to the Supreme Court—in the case of Breakspear v Ackland, 2009, Chancery, page 32, at paragraph 54.

The principle is that the exercise by trustees of their discretionary powers is confidential. It is in the interests of the beneficiaries, because it enables the trustees to make discreet but thorough inquiries as to the competing claims for consideration for benefit. Mr Justice Briggs added that such confidentiality also advances the proper interests of the administration of trusts, because it reduces the scope for litigation about how trustees have exercised their discretion, and encourages suitable people to accept office as trustees, undeterred by a concern that their discretionary deliberations might be challenged by disappointed or hostile beneficiaries and that they will be subject to litigation in the courts.

There is, of course, a public interest here, which is protected by the inherent jurisdiction of the court to supervise and, where appropriate, intervene in the administration of trusts, as the noble and learned Lord, Lord Walker of Gestingthorpe, stated for the Judicial Committee of the Privy Council in Schmidt v Rosewood Trust Ltd, 2003, 2 AC 709.

The problem is that, as presently drafted, the Bill would confer a right on beneficiaries to see information about themselves unless a specific exemption is included. A recent Court of Appeal judgment in Dawson-Damer v Taylor Wessing, 2017, EWCA Civ 74, drew attention to the general applicability of data protection law in this context unless a specific exemption is enacted.

My understanding, which is indirect—I declare an interest as a barrister, but this is not an area in which I normally practise—is that in other jurisdictions such as Jersey, the data protection legislation contains a statutory restriction on the rights of a data subject to make a subject access request where that would intrude on the trustees’ confidentiality under the Londonderry principle. Indeed, I am told that those who practise in this area are very concerned that offshore trustees and offshore professionals who provide trust services are already actively encouraging the transfer of trust business away from this jurisdiction because of the data protection rights which apply here, and which will apply under the Bill.

The irony is that the data protection law is driving trust business towards less transparent offshore jurisdictions and away from the better regulated English trust management businesses. I have received persuasive representations on this subject from the Trust Law Committee, a group of leading academics and practitioners, and I acknowledge the considerable assistance I have received on this matter from Simon Taube QC and James MacDougald.

This is plainly a very technical matter, but it is one of real public interest. I hope that the Minister will be able to consider this issue favourably before Report.

[Lord Hope of Craighead (CB)]

My Lords, I want to add a word in support of the points made by the noble Lord, Lord Pannick, particularly with reference to the concerns that some people have expressed about money being moved out of the very closely and properly regulated regime of English trust law to offshore organisations and jurisdictions which are less careful about how people’s money is handled.

I should declare an interest as Chief Justice of the Abu Dhabi Global Market Courts. I am not suggesting that this has anything to do with Abu Dhabi, but it has introduced me to an aspect of trust law with which I was not previously familiar, and it bears closely on the point made by the noble Lord, Lord Pannick. He referred to Jersey as one of the jurisdictions of concern. One aspect of its legislation which has come to my attention through my connection with Abu Dhabi is the Foundations (Jersey) Law 2009. This is a structure set up by statute under Jersey law which is matched with an equivalent statute in Guernsey. It creates a form of trust which is, as it were, a hybrid between a trust and a corporation with a number of aspects that are described very well in Sections 25 and 26 of the Jersey law.

One of the points about the foundation, which appears in Section 25, is that a,

“beneficiary under a foundation … has no interest in the foundation’s assets; and … is not owed by the foundation or by a person appointed under the regulations of the foundation a duty that is or is analogous to a fiduciary duty”.

So the beneficiary under that system is rather different from a beneficiary under our system, where undoubtedly they have an interest in the foundation’s assets. But also to the point is Section 26, which provides that foundations are,

“not obliged to provide information”.

That has its counterpart in the point made about the Data Protection Act in that jurisdiction. It says that except,

“as specifically required by or under this Law or by the charter or regulations of the foundation, a foundation is not required to provide any person … with any information about the foundation”.

It goes on to say in subsection (2) that the,

“information mentioned in paragraph (1) includes, in particular, information about … the administration of the foundation … the manner in which its assets are being administered … its assets; and … the way in which it is carrying out its objects”.

I do not wish in any way to criticise how the foundation laws are run in Guernsey or Jersey, but it is a pattern which, if repeated in less scrupulous jurisdictions, has obvious attractions. People move into a foundation and nobody knows what part of the foundation money they own, because they are not supposed to own any part of it, and the foundation is not obliged to disclose any information at all. There is a risk that those who are keen, for whatever reason—it could even be for matrimonial reasons—to conceal their assets could move them offshore from a trust such as we have in this country, closely regulated and subject to the ordinary rules, to one of these other bodies, which we would not wish to encourage. One has only to look at the Criminal Finances Act 2017 and some of the clauses in the Sanctions and Anti-Money Laundering Bill that is before the House to see that we are taking a completely opposite line to the foundations laws, because we are insisting that we should be provided with information about what organisations of this kind hold and, indeed, who holds what assets. We have not got as far as actually requiring trusts to do that but, certainly, anyone who puts his money into a company, in an attempt to conceal his assets within the company, will be forced eventually to have that information disclosed.

I add these points to suggest that the point that the noble Lord, Lord Pannick, made has a great deal of substance, which one can trace through the foundations law. I stress again that I am not criticising how this is administered in Jersey or Guernsey—that is not really the point. The point is that those who would wish to copy their systems are subject to less close scrutiny. I also emphasise that I am not suggesting that we in this country would want to adopt a foundations law; that would really be quite contrary to how our current legislation is proceeding. So there is an important issue here about protecting ourselves—and those who set up trusts here and administer them properly according to our rules and conventions—against a loss of business, which would be detrimental not only to those who run the businesses but to the whole ethic by which we practise our trust law.

I hope that the Minister and those advising him will look carefully at the Jersey and Guernsey examples, with a view not to criticism but to sensing the risk to which the noble Lord, Lord Pannick, drew our attention.

[Baroness Hamwee (LD)]

My Lords, Amendments 80A and 83A are in the names of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Arbuthnot, and come from the Bar Council. In their unavoidable absence, I have again been asked to speak to the amendments. The Government have amendments also to paragraph 5 of Part 1 of Schedule 2—and no doubt we will be asked to agree them shortly. These amendments deal with other aspects of that paragraph and relate to legal professional privilege. The paragraph, as amended, refers to the disclosure of data but disclosure is only one of the acts of processing. The Bar Council is concerned that we need to deal with processing more widely so as not to disrupt the activities of the court and to protect privilege, which is something we have debated on many occasions and which we all agree is not only important but a fundamental right for persons and organisations.