Online Safety Bill

Lord Stevenson of Balmacara Excerpts

Report stage
Wednesday 19th July 2023 Lords Chamber

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

My Lords, the government amendments in this group relate to content reporting and complaints procedures. The Bill’s existing duties on each of these topics are a major step forward and will provide users with effective methods of redress. There will now be an enforceable duty on Part 3 services to offer accessible, transparent and easy-to-use complaints procedures. This is an important and significant change from which users and others will benefit directly.

Furthermore, Part 3 services complaints procedures will be required to provide for appropriate action to be taken in response to complaints. The duties here will fundamentally alter how complaints systems are operated by services, and providers will have to make sure that their systems are up to scratch. If services do not comply with their duties, they will face strong enforcement measures.

However, we have listened to concerns raised by your Lordships and others, and share the desire to ensure that complaints are handled effectively. That is why we have tabled Amendments 272AA and 274AA, to ensure that the Bill’s provisions in this area are the subject of a report to be published by Ofcom within two years of commencement.

Amendment 272AA places a requirement on Ofcom to undertake a report about Part 3 services reporting and complaints procedures. The report will assess the measures taken or in use by providers of Part 3 services to enable users and others to report content and make complaints. In assessing the content reporting and complaints measures in place, the report must take into account users’ and others’ experiences of those procedures—including how easy to use and clear they are for reporting content and making complaints, and whether providers are taking appropriate and timely action in response.

In this report, Ofcom must provide advice to the Secretary of State about whether she should use her power set out in Amendment 236C to make regulations imposing an alternative dispute resolution duty on category 1 services. Ofcom may also make wider recommendations about how the complaints and user redress provisions can be strengthened, and how users’ experiences with regard to complaints can be improved more broadly. Amendment 274AA is a consequential amendment ensuring that the usual confidentiality provisions apply to matters contained in that report.

These changes will ensure that the effectiveness of the Bill’s content reporting and complaints provisions can be thoroughly assessed by Ofcom two years after the commencement of the provision, providing time for the relevant reporting and complaints procedures to bed in.

Amendment 236C then provides that the Secretary of State will have a power to make regulations to amend the Act in order to impose an alternative dispute resolution duty on providers of category 1 services. This power can be used after the Secretary of State has published a statement in response to Ofcom’s report. This enables 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 in respect of complaints. This means that, if the Bill’s existing user redress provisions are found to be insufficient, this requirement can quickly be imposed to strengthen the Bill.

This responds directly to concerns which noble Lords raised about cases where users or parents may feel that they have nowhere to turn if they are dissatisfied with a service’s response to their complaint. We believe that the existing provisions will remedy this, but, if they do not, these new requirements will ensure that there is an impartial, alternative dispute resolution procedure which will work towards the effective resolution of the complaint between the service and the complainant.

At the same time, it will avoid creating a single ombudsman, person or body which may be overwhelmed either through the volume of complaints from multiple services or by the complexity of applying such disparate services’ varying terms of service. Instead, if required, this power will put the onus on the provider to arrange for and engage in an impartial dispute resolution procedure.

Amendment 237D requires that, if regulations are made requiring category 1 services to offer an alternative dispute resolution procedure, such regulation must be subject to the affirmative parliamentary procedure. This ensures that Parliament will continue to have oversight of this process.

I hope that noble Lords are reassured that the Bill not only requires services to provide users and others with effective forms of redress but that these further amendments will ensure that the Bill’s provisions in this area will be thoroughly reviewed and that action can be taken quickly if it is needed. I beg to move.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I am grateful to hear what the Minister has just announced. The scheme that was originally prefigured in the pre-legislative scrutiny report has now got some chance of being delivered. I think the process and procedures are quite appropriate; it does need review and thought. There needs to be account taken of practice on the ground, how people have found the new system is working, and whether or not there are gaps that can be filled this way. I give my full support to the proposal, and I am very glad to see it.

Having got to the Dispatch Box early, I will just appeal to our small but very important group. We are on the last day on Report. We are reaching a number of issues where lots of debate has taken place in Committee. I think it would be quite a nice surprise for us all if we were to get through this quickly. The only way to do that is by restricting our contributions.

[Baroness Morgan of Cotes (Con)]

My Lords, I will speak briefly to Amendments 272AA and 274AA, only because at the previous stage of the Bill I tabled amendments related to the reporting of illegal content and fraudulent advertisements, both in reporting, and complaints and transparency. I have not re-tabled them here, but I have had conversations with my noble friend the Minister. It is still unclear to those in the House and outside why the provisions relating to that type of reporting would not apply to fraudulent advertisements, particularly given that the more information that can be filed about those types of scams and fraudulent advertisements, the easier it would be for the platforms to gather information, and help users and others to start to crack down on that. I wonder if, when he sums up, my noble friend could say something about the reporting provisions relating to fraudulent advertisements generally, and in particular around general reporting and reporting relating to complaints by users.

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[Lord Stevenson of Balmacara (Lab)]

My Lords, there is very little to add to that. These are important questions. I simply was struck by the thought that the amount of work, effort and thought that has gone into this should not be kept within this Bill. I wonder whether the noble Lord has thought of offering his services to His Majesty’s Treasury, which has difficulty in raising tax from these companies. It would be nice to see that problem resolved.

[Lord Parkinson of Whitley Bay (Con)]

I am looking forward to returning to arts and heritage; I will leave that to my noble friend Lady Penn.

The noble Lord, Lord Allan, asked some good questions. He is right: the provisions and the parliamentary scrutiny allow for the flexibility for all these things to be looked at and scrutinised in the way that he set out. I stress that the fee regime is designed to be fair to industry; that is central to the approach we have taken. The Bill stipulates that Ofcom must charge only proportionate and justifiable fees to industry. The provisions that Ofcom can make via regulation about the qualifying worldwide revenue aim to ensure that fees are truly representative of the revenue relating to the regulated service and that they will encourage financial transparency. They also aim to aid companies with complex structures which would otherwise struggle to segregate revenues attributable to the provider and its connected entities.

The revenue of the group undertaking can be considered in scope of a provider’s qualifying worldwide revenue if the entity was a member of the provider’s group during any part of the qualifying period and the entity receives during the qualifying period any amount referrable to a regulated service. The regulations provide Ofcom with a degree of flexibility as to whether or not to make such provisions, because Ofcom will aim to keep the qualifying worldwide revenue simple.

I am grateful for noble Lords’ support for the amendments and believe that they will help Ofcom and the Government to structure a fair and transparent fee regime which charges proportionate fees to fund the cost of the regulatory regime that the Bill brings in.

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Moved by

[Lord Stevenson of Balmacara]

239: After Clause 201, insert the following new Clause—
“Regulations: consultation and impact assessments
(1) This section applies if the Secretary of State seeks to exercise powers under—(a) section 55 (regulations under section 54),(b) section 195 (powers to amend section 35),(c) section 196 (powers to amend or repeal provisions relating to exempt content or services),(d) section 197 (powers to amend Part 2 of Schedule 1),(e) section 198 (powers to amend Schedules 5, 6 and 7), or(f) paragraph 1 of Schedule 11 (regulations specifying threshold conditions for categories of Part 3 services),or where the Secretary of State intends to direct OFCOM under section 39.(2) The Secretary of State may not exercise the powers under the provisions in subsection (1) unless any select committee charged by the relevant House of Parliament with scrutinising such regulations has—(a) completed its consideration of the draft regulations and accompanying impact assessment provided by the Secretary of State; and(b) reported on their deliberation to the relevant House; andthe report of the committee has been debated in that House, or the period of six weeks beginning on the day on which the committee reported has elapsed.”

[Lord Stevenson of Balmacara (Lab)]

My Lords, this amendment would require the Secretary of State, when seeking to exercise certain powers in the Bill, to provide the relevant Select Committees of both Houses with draft regulations and impact assessments, among other things. I should admit up front that this is a blatant attempt to secure an Online Safety Bill version of what I have called the “Grimstone rule”, established in the international trade Bill a few years ago. Saving his blushes, if the ideas enshrined in the amendment are acceptable to the Government, I hope that the earlier precedent of the “Grimstone rule” would ensure that any arrangements agreed under this amendment would be known in future as the “Parkinson rule”. Flattery will get you many things.

The Bill places a specific consultation requirement on the Government for the fee regime, which we were just talking about, categorisation thresholds, regulations about reports to the NCA, statements of strategic priorities, regulations for super-complaints, and a review of the Act after three years—so a wide range of issues need to be put out for consultation. My context here, which is all-important, is a growing feeling that Parliament’s resources are not being deployed to the full in scrutinising and reviewing the work of the Executive on the one hand and feeding knowledge and experience into future policy on the other. There is continuing concern about the effectiveness of the secondary legislation approval procedures, which this amendment would bear on.

Noble Lords have only to read the reports of the Select Committees of both Houses to realise what a fantastic resource they represent. One has only to have served on a Select Committee to realise what potential also exists there. In an area of rapid technical and policy development, such as the digital world, the need to be more aware of future trends and potential problems is absolutely crucial.

The pre-legislative scrutiny committee report is often quoted here, and it drew attention to this issue as well, recommending

“a Joint Committee of both Houses to oversee digital regulation with five primary functions: scrutinising digital regulators and overseeing the regulatory landscape … scrutinising the Secretary of State’s work into digital regulation; reviewing the codes of practice laid by Ofcom under any legislation relevant to digital regulation … considering any relevant new developments such as the creation of new technologies and the publication of independent research … and helping to generate solutions to ongoing issues in digital regulation”—

a pretty full quiver of issues to be looked at.

I hope that when he responds to this debate, the Minister will agree that ongoing parliamentary scrutiny would be helpful in providing reassurances that the implementation of the regime under the Bill is going as intended, and that the Government would also welcome a system under which Parliament, perhaps through the Select Committees, can contribute to the ways suggested by the Joint Committee. I say “perhaps”, because I accept that it is not appropriate for primary legislation to dictate how, or in what form, Parliament might offer advice in the manner that I have suggested; hence the suggestion embedded in the amendment—which I will not be pressing to a Division—which I call the “Parkinson rule”. Under this, the Minister would agree at the Dispatch Box a series of commitments which will provide an opportunity for enhanced cross-party scrutiny of the online safety regime and an opportunity to survey and report on future developments of interest.

The establishment of the new Department for Science, Innovation and Technology and its Select Committee means that there is a new dedicated Select Committee in the Commons. The Lords Communications and Digital Committee will continue, I hope, to play a vital role in the scrutiny of the digital world, as it has with the online safety regime to date. While it would be for the respective committees to decide their priorities, I hope the Government would encourage the committees in both Houses to respond to their required consultation processes and to look closely at the draft codes of practice, the uses of regulation-making powers and the powers of direction contained in the Bill ahead of the formal processes in both Houses. Of course, it could be a specialist committee if that is what the Houses decide, but there is an existing arrangement under which this “Parkinson rule” could be embedded. I have discussed the amendment with the Minister and with the Bill team. I look forward to hearing their response to the ideas behind the amendment. I beg to move the “Parkinson rule”.

[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.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, I have always felt rather sorry for the first Viscount Addison, because what we refer to as the Salisbury convention is really the Salisbury-Addison convention. So while I am grateful to the noble Lord, Lord Stevenson, for his flattering speech, I shall insist on calling it the “Parkinson-Stevenson rule”, not least in the hope that that mouthful will encourage people to forget its name more swiftly.

I am grateful to the noble Lord for his attention to this matter and the useful discussions that we have had. His Amendment 239 would go beyond the existing legislative process for the delegated powers in the Bill by providing for parliamentary committees to be, in effect, inserted into the secondary legislative process. The delegated powers in the Bill are crucial for implementing the regime effectively and for ensuring that it keeps pace with changes in technology. Regulation-making powers are an established part of our legislative practice, and it would not be appropriate to deviate from existing processes.

However, I agree that ongoing parliamentary scrutiny of the regime will be crucial in helping to provide noble Lords and Members in another place with the reassurance that the implementation of the regime is as we intended. As the noble Lord noted, the establishment of the Science, Innovation and Technology Select Committee in another place means that there is a new dedicated committee looking at this important area of public policy. That provides an opportunity for cross-party scrutiny of the online safety regime and broader issues. While it will be, as he said, for respective committees to decide their priorities, we welcome any focus on online safety, and certainly welcome committees in both Houses co-operating effectively on this matter. I am certain that the Communications and Digital Committee of your Lordships’ House will continue to play a vital role in the scrutiny of the online safety regime.

We would fully expect these committees to look closely at the codes of practice, the uses of regulation-making powers and the powers of direction in a way that allows them to focus on key issues of interest. To support that, I can commit that the Government will do two things. First, where the Bill places a consultation requirement on the Government, we will ensure that the relevant committees have every chance to play a part in that consultation by informing them that the process is open. Secondly, while we do not wish to see the implementation process delayed, we will, where possible, share draft statutory instruments directly with the relevant committees ahead of the formal laying process. These timelines will be on a case-by-case basis, considering what is appropriate and reasonably practical. It will be for the committees to decide how they wish to engage with the information that we provide, but it will not create an additional approval process to avoid delaying implementation. I am grateful to my noble friend Lady Stowell of Beeston for her words of caution and wisdom on that point as both chairman of your Lordships’ committee and a former Leader of your Lordships’ House.

I hope that the noble Lord will be satisfied by what I have set out and will be willing to withdraw his amendment so that our rule might enter into constitutional history more swiftly.

[Lord Stevenson of Balmacara (Lab)]

I am very grateful to everyone who has contributed to the debate, despite my injunction that no one was to speak other than those key persons—but it was nice to hear views around the House in support for this proposal, with caution. The noble Baroness, Lady Stowell, was right to be clear that we have to be focused on where we are going on this; there is quite a lot at stake here, and it is a much bigger issue than simply this Bill and these particular issues. Her willingness to take this on in a wider context is most welcome, and I look forward to hearing how that goes. I am also very grateful for the unexpected but very welcome support from the noble Baroness, Lady Fox. It was nice that she finally agreed to meet on one piece of territory, if we cannot agree on some of the others. The noble Lord, Lord Kamall, is right to say that we need to pick up the much broader question about who regulates those who regulate us. This is not the answer, but it certainly gets us a step in the direction.

I was grateful to the Minister for suggesting that the “Parkinson rule” could take flight, but I shall continue to call it by a single name—double-barrelled names are not appropriate here. We will see the results of that in the consultation; the things that already have to be consulted about will be offered to the committees, and it is up to them to respond on that, but it is a very good start. The idea that drafts and issues that are being prepared for future regulation will be shown ahead of the formal process is exactly where I wanted to be on this, so I am very grateful for that. I withdraw the amendment.

Amendment 239 withdrawn.

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[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Stowell. My noble friend has spoken very cogently to Amendment 258ZA, and I say in answer to the question posed by the noble Baroness that I do not think this is designed to make big tech companies content. What it is designed to do is bring this out into the open and make it contestable; to see whether or not privacy is being invaded in these circumstances. To that extent it airs the issues and goes quite a long way towards allaying the concerns of those 80 organisations that we have heard from.

I am not going to repeat all the arguments of my noble friend, but many noble Lords, not least on the opposite Benches, have taken us through some of the potential security and privacy concerns which were also raised by my noble friends, and other reasons for us on these Benches putting forward these amendments. We recognise those concerns and indeed we recognise concerns on both sides. We have all received briefs from the NSPCC and the IWF, but I do not believe that essentially what is being proposed here in our amendments, or indeed by the amendments put forward by the noble Lord, Lord Stevenson, are designed in any way to prevent Ofcom doing its duty in relation to child sexual abuse and exploitation material in private messaging. We believe that review by the ICO to ensure that there is no invasion of privacy is a very useful mechanism.

We have all tried to find solutions and the Minister has put forward his stab at this with the skilled persons report. The trouble is, that does not go far enough, as the noble Baroness, Lady Stowell, said. Effectively, Ofcom can choose the skilled person and what the skilled person is asked to advise on. It is not necessarily comprehensive and that is essentially the major flaw.

As regards the amendments put forward by the noble Lord, Lord Stevenson, it is interesting that the Equality and Human Rights Commission itself said:

“We are concerned by the extent and seriousness of CSEA content being shared online. But these proposed measures may be a disproportionate infringement on millions of individuals’ right to privacy where those individuals are not suspected of any wrongdoing”.


It goes on to say:

“We recommend that Ofcom should be required to apply to an independent judicial commissioner—as is the case for mass surveillance under the Investigatory Powers Act”.


I am sure that is the reason why the noble Lord, Lord Stevenson, put forward his amendments; if he put them to a vote, we would follow and support. Otherwise, we will put our own amendments to the House.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been—since we first got sight of the Bill and right the way through—one of the most difficult issues to try to find balance and a solution. I know that people have ridiculed my attempt to try and get people to speak less in earlier amendments. Actually, in part it was so we could have a longer debate here—so the noble Lord, Lord Moylan, should not be so cross with me, and I hope that we can continue to be friends, as we are outside the Chamber, on all points, not just this one.

Talk is not getting us to a solution on this, unfortunately. I say to the Minister: I wonder whether there is a case here for pausing a little bit longer on this, because I still do not think we have got to the bottom of where the balance lies. I want to explain why I say that, because, in a way, I follow the noble Baroness, Lady Stowell, in worrying that there are some deeper questions here that we have not quite got the answers to. Nothing in the current amendments gets us to quite the right place.

I started by thinking that, if only because Ofcom was being seen to be placed in a position of both being a part of the regulatory process, but also having the rights to interpose itself into where this issue about encryption came up, Ofcom needed the safety of an external judicial review along the lines of the current RIPA system. That has led us to my Amendments 256, 257 and 259, which try to distil that sensibility into a workable frame for the Bill and these issues. I will not push it to a vote. It is there because I wanted to have in the discussion a proper look at what the RIPA proposal would look like in practice.

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[Lord Parkinson of Whitley Bay (Con)]

To meet the expectation the noble Lord voiced earlier, I will indeed point out that Ofcom can consult the ICO as a skilled person if it wishes to. It is important that we square the circle and look at these issues. The ICO will be able to be involved in the way I have set out as a skilled person.

Before I conclude, I want to address my noble friend Lady Harding’s questions on skilled persons. Given that notices will be issued on a case-by-case basis, and Ofcom will need to look at specific service design and existing systems of a provider to work out how a particular technology would interact with that design system, a skilled person’s report better fits this process by requiring Ofcom to obtain tailored advice rather than general technical advice from an advisory board. The skilled person’s report will be largely focused on the technical side of Ofcom’s assessment: that is to say, how the technology would interact with the service’s design and existing systems. In this way, it offers something similar to but more tailored than a technical advisory board. Ofcom already has a large and expert technology group, whose role it is to advice policy teams on new and existing technologies, to anticipate the impact of technologies and so on. It already has strong links with academia and with external researchers. A technical advisory board would duplicate that function. I hope that reassures my noble friend that the points she raised have been taken into account.

So I hope the noble Lord, Lord Allan, will not feel the need to divide—

[Lord Stevenson of Balmacara (Lab)]

Before the Minister finishes, I posed the question about whether, given the debate and issues raised, he felt completely satisfied that we had arrived at the right solution, and whether there was a case for withdrawing the amendment at this stage and bringing it back at Third Reading, having had further discussions and debate where we could all agree. I take it his answer is “no”.

[Lord Parkinson of Whitley Bay (Con)]

I am afraid it is “no”, and if the noble Lord, Lord Allan, does seek to divide, we will oppose his amendment. I commend the amendments standing in my name in this group to the House.