Online Safety Act 2023 (Category 1, Category 2A and Category 2B Threshold Conditions) Regulations 2025

Debate between Lord Knight of Weymouth and Baroness Penn

Monday 24th February 2025 Lords Chamber

[Baroness Penn (Con)]

My Lords, I will be incredibly brief, having not been part of the collective of Peers who worked on the parent Act to this statutory instrument. The key question that has been highlighted is, what is the Government’s interpretation now of the powers in the Act? The Government’s and the Official Opposition’s interpretation at the time it was passed was that it had the power to include in category 1 providers on the basis of risk, not size. I am incredibly concerned because, in the debate in the Commons, the Minister said that

“as things stand, the Secretary of State does not have the power to include them”.—[Official Report, Commons, Third Delegated Legislation Committee, 4/2/25; col. 16.]

That was a reference to small but risky providers, and actually the Minister seemed slightly outraged at the implication that they were not acting where they should otherwise be doing so. So can the Minister clarify for this debate whether it is the Government’s position that they would like to include them and that that is the intention that they thought the Act had given them, but they cannot under the law as it is written; or that they do have the powers but have chosen not to, which is our understanding of their decision-making?

The reason that is so important is that the Minister has committed to reviewing these thresholds in future, but such reviews will have very little power if the Act itself is faulty and does not give them the ability to designate on the basis of risk, or the review is pointless because they already have the powers and the evidence of the risk of these providers but are choosing not to act.

I have another point on legal advice. In the debate in the Commons, the Minister committed to writing, including a letter from government lawyers, setting out in great detail what she was saying

“in relation to the powers of the Secretary of State in setting the categories”.—[Official Report, Commons, Third Delegated Legislation Committee, 4/2/25; col. 19.]

In other words, the letter would clarify for people what the interpretation, which has so shifted from the original debate, is from the Government. I may have missed that letter—maybe it was placed in the House of Commons Library—but perhaps the Minister could say whether the letter was written and share its content with this Chamber also, because I think that gets to the heart of what we are regretting today from the Government.

[Lord Knight of Weymouth (Lab)]

I just want to say very briefly that, having served alongside my noble friend Lord Stevenson on the Front Bench during the passage of this Act, I want to thoroughly endorse what he has said. I am very proud of the work that we did together—I echo what the noble Baroness, Lady Morgan, said—to try to create a piece of legislation that could work in a very complex area, and I think we did a good job.

My fear now is that, now that Ofcom, the regulator, has published its road map, it is like a juggernaut: it has just got on with delivering what it was always going to deliver and has ignored what we in this House amended the Bill to do. In that respect, it is treating us with contempt and it is important that we express our regret in one way or another this evening about the way that we have been treated. I came in wanting to be convinced by my noble friend the Minister; I am afraid that so far she has not done it.