Health and Care Bill

Viscount Colville of Culross Excerpts

Committee stage
Friday 4th February 2022 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to follow the noble Lord, Lord Krebs, and pay tribute to the work he has done in this area. I shall speak to Amendment 257C, but I shall first make just one general comment on something to which he alluded, and which follows from the earlier remarks of the noble Baroness, Lady Boycott. We are working in a vacuum at the moment, and it would be extremely helpful if the Government could say when they will publish their food strategy, drawing on the excellent work done by Henry Dimbleby, who is the main adviser to the Government on this.

I support and have appended my name to Amendment 257C in the name of the noble and learned Lord, Lord Hope of Craighead. He is unable to be here today, which he regrets greatly. The offending part of the Bill in this regard is on page 241, in proposed new Section 368Z18 on the guidance the Government intend to draw up from time to time. Subsection (2) states:

“The appropriate regulatory authority must consult the Secretary of State before drawing up or revising the guidance.”


Subsection (3) states:

“The appropriate regulatory authority must publish the guidance and any revised guidance in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.”


I draw the Committee’s attention to the Constitution Committee’s report on the Bill, and the following statement on Clause 144:

“This is a Henry VIII clause, enabling the Secretary of State to modify an Act of Parliament, an Act of the Scottish Parliament, a Measure or an Act of the Senedd Cymru, or Northern Ireland legislation. The Secretary of State is required to consult those he or she considers appropriate before making regulations via the affirmative resolution procedure.”


The Constitution Committee concludes:

“The House should consider amending Schedule 17 to require either the consultation of the relevant devolved administration or the consent of the relevant devolved legislature if the Secretary of State were to use this power to enact regulations modifying devolved legislation.”


I speak as a non-practising member of the Faculty of Advocates and must say that it is a source of concern to all of us who have an interest north of the border, west of the border in Wales or in Northern Ireland that, sadly, the Government are developing a history of not consulting the devolved Administrations where appropriate.

Regarding Amendment 257C, which is, in my view, a probing amendment, I put it to the Minister that the clause gives the Secretary of State the power to alter the legislation of devolved Administrations by regulations, as set out in the guidance to which I referred. The Committee will be aware that the Sewell convention does not apply to the exercise of delegated powers, so there is no obligation on the Government to seek consent. In its very helpful report on the Bill, the Constitution Committee suggests that, given the nature and extent of this power, consent should nevertheless be sought. There is nothing in the Bill to respect the spirit of the convention, not even a duty to consult. How do the Government square that with the respect they should give to the devolved Administrations, especially in view of my right honourable friend Minister Gove’s initiative on intergovernmental relations and the levelling-up agenda, to which the noble Lord, Lord Krebs, referred and which I, for one, support?

I conclude by asking my noble friend what precisely the Government intend to do, or what action they would be willing to take, to address this issue when the power in the guidance is being exercised.

[Viscount Colville of Culross (CB)]

My Lords, I declare an interest as a freelance television producer. I speak in support of Amendments 253ZA, 255A, 255B and 257B, which all attempt to give some parity in HFSS advertising restrictions between broadcasters and platforms. I apologise for having not been able to speak on Second Reading.

The noble Lord, Lord Clement-Jones, has already spoken about the reduction in broadcasters’ advertising revenue as the platforms take an ever-increasing share of the market. The restriction in the Bill on television advertising further tilts the playing field in their favour. What concerns me is that this part of Schedule 17 is about the media which disseminate HFSS advertising taking responsibility for it, yet once again the platforms are allowed off scot free. My concern is the complete absence of tech companies’ responsibility for the content of ads appearing on their video-sharing platforms—mainly YouTube, but also Facebook video and Snapchat’s vertical video service. This is the media to which children are migrating. Enders Analysis estimates that by 2027, children will spend more than half their viewing time looking at content on these platforms—an average of 85 minutes per day per child. Clearly, this is where advertisers and brands are going to push HFSS products.

Yet, as noble Lords know, the digital space is the Wild West. Last year, the digital task force produced its excoriating report on the near-monopoly control of digital advertising by the big platforms. The report also mentioned the opacity of the programmatic interface, which allows advertisers to target products at specific users. Of course advertisers are themselves responsible for where they place their ads. This marketplace is the basis of the platforms’ wealth, but it is where they shirk any possibility for the content of ads. I am sure that, if platforms were made legally responsible for imposing restrictions on HFSS advertising, they would soon insert filters—or, better still, humans—into the process, much in the same way as we are seeing them do in content mediation.