Online Safety Bill (Fifteenth sitting)

Alex Davies-Jones Excerpts

Committee stage
Thursday 23rd June 2022 Public Bill Committees

Clause 176 provides powers to amend schedules 5, 6 and 7. Those schedules, as colleagues will recall, cover priority criminal offences, which is schedule 7, child sexual exploitation and abuse offences, which is schedule 6, and terrorism offences, which is schedule 5. Clearly, if new offences are created or if there are existing offences that Parliament believes need to be added to these priority lists of offences, we need the flexibility to do that. An example might be a new offence created by a devolved Administration, a new offence that Parliament here at Westminster legislates for that we think needs to be a priority offence, or an existing offence that is not on the list now but in the future we think needs to be added to ensure that platforms proactively protect the public. We need this flexibility. Again, this speaks to the future-proofing of the Bill that Members have spoken about. It is an extremely important aspect of the Bill’s ability to respond to threats that may emerge in the future and to new legislation.

[Alex Davies-Jones (Pontypridd) (Lab)]

Good morning, Sir Roger. As the Minister has outlined, clause 173 gives the Secretary of State the power to amend the list of fraud offences in what will be section 36 in relation to the duties about fraudulent advertising. Although we recognise that this power is subject to some constraints, Labour has concerns about what we consider to be an unnecessary power given to the Secretary of State to amend duties about fraudulent advertising on category 1 services.

We welcome the provisions outlined in clause 173(2), which lists the criteria that any new offences must meet before the Secretary of State may include them in the list of fraud offences in section 36. The Minister outlined some of those. Along the same lines, the provision in clause 173(3) to further limit the Secretary of State’s power to include new fraud offences—it lists types of offences that may not be added to section 36—is a positive step.

However, we firmly believe that delegated law making of this nature, even when there are these minor constraints in place, is a worrying course for the Government to pursue when we have already strongly verbalised our concerns about Ofcom’s independence. Can the Minister alleviate our concerns by clarifying exactly how this process will work in practice? He must agree with the points that colleagues from across the House have made about the importance of Ofcom being truly independent and free from any political persuasion, influence or control. We all want to see the Bill change things for the better so I am keen to hear from the Minister the specific reasoning behind giving the Secretary of State the power to amend this important legislation through what will seemingly be a simple process.

As we all know, clause 174 allows the Secretary of State to make regulations to amend or repeal provisions relating to exempt content or services. Regulations made under this clause can be used to exempt certain content or services from the scope of the regulatory regime, or to bring them into scope. It will come as no surprise to the Minister that we have genuine concerns about the clause, given that it gives the Secretary of State of the day the power to amend the substantive scope of the regulatory regime. In layman’s terms, we see this clause as essentially giving the Secretary of State the power to, through regulations, exempt certain content and services from the scope of the Bill, or bring them into scope. Although we agree with the Minister that a degree of flexibility is crucial to the Bill’s success and we have indeed raised concerns throughout the Bill’s proceedings about the need to future-proof the Bill, it is a fine balance, and we feel that these powers in this clause are in excess of what is required. I will therefore be grateful to the Minister if he confirms exactly why this legislation has been drafted in a way that will essentially give the Secretary of State free rein on these important regulations.

Clauses 175 and 176 seek to give the Secretary of State additional powers, and again Labour has concerns. Clause 175 gives the Secretary of State the power to amend the list in part 2 of schedule 1, specifically paragraph 10. That list sets out descriptions of education and childcare relating to England; it is for the relevant devolved Ministers to amend the list in their respective areas. Although we welcome the fact that certain criteria must be met before the amendments can be made, this measure once again gives the Secretary of State of the day the ability substantively to amend the scope of the regime more broadly.

Those concerns are felt even more strongly when we consider clause 176, which gives the Secretary of State the power to amend three key areas in the Bill—schedules 5, 6 and 7, which relate to terrorism offences, to child sexual exploitation and abuse content offences—except those extending to Scotland—and to priority offences in some circumstances. Alongside stakeholders, including Carnegie, we strongly feel that the Secretary of State should not be able to amend the substantive scope of the regime at this level, unless moves have been initiated by Ofcom and followed by effective parliamentary oversight and scrutiny. Parliament should have a say in this. There should be no room for this level of interference in a regulatory regime, and the Minister knows that these powers are at risk of being abused by a bad actor, whoever the Secretary of State of the day may be. I must, once again, press the Minister to specifically address the concerns that Labour colleagues and I have repeatedly raised, both during these debates and on Second Reading.

[Kirsty Blackman]

I have a couple of questions, particularly on clause 176 and the powers to amend schedules 6 and 7. I understand the logic for schedule 5 being different—in that terrorism offences are a wholly reserved matter—and therefore why only the Secretary of State would be making any changes.

My question is on the difference in the ways to amend schedules 6 and 7—I am assuming that Government amendment 126, which asks the Secretary of State to consult Scottish Ministers and the Department of Justice in Northern Ireland, and which we have already discussed, will be voted on and approved before we come to clause 176. I do not understand the logic for having different procedures to amend the child sexual exploitation and abuse offences and the priority offences. Why have the Government chosen two different procedures for amending the two schedules?

I understand why that might not be a terribly easy question to answer today, and I would be happy for the Minister to get in touch afterwards with the rationale. It seems to me that both areas are very important, and I do not quite understand why the difference is there.

--- Later in debate ---

[Alex Davies-Jones]

Again, Labour has concerns about clause 177, which gives the Secretary of State a power to make consequential provisions relating to the Bill or regulations under the Bill. As we know, the power is exercised by regulation and includes the ability to amend the Communications Act 2003. I will spare the Committee a repetition of my sentiments, but we do feel that the clause is part of an extremely worrying package of clauses related to the Secretary of State’s powers, which we feel are broadly unnecessary.

We have the same concerns about clause 178, which sets out how the powers to make regulations conferred on the Secretary of State may be used. Although we recognise that it is important in terms of flexibility and future-proofing that regulations made under the Bill can make different provisions for different purposes, in particular relating to different types of service, we are concerned about the precedent that this sets for future legislation that relies on an independent regulatory system.

Labour supports amendment 160, which will ensure that the regulations made under new schedule 2, which we will debate shortly, are subject to the affirmative procedure. That is vital if the Bill is to succeed. We have already expressed our concerns about the lack of scrutiny of other provisions in the Bill, so we see no issue with amendment 160.

The Minister has outlined clause 179, and he knows that we welcome parliamentary oversight and scrutiny of the Bill more widely. We regard this as a procedural clause and have therefore not sought to amend it.

Question put and agreed to.

Clause 177 accordingly ordered to stand part of the Bill.

Clause 178 ordered to stand part of the Bill.

Clause 179

Parliamentary procedure for regulations

Amendment made: 160, in clause 179, page 146, line 13, at end insert “, or

(k) regulations under paragraph 7 of Schedule (Recovery of OFCOM’s initial costs),—(Chris Philp.)

This amendment provides that regulations under NS2 are subject to the affirmative procedure.

Clause 179, as amended, ordered to stand part of the Bill.

Clause 180

“Provider” of internet service

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to consider the following:

Clauses 181 to 188 stand part.

Amendment 76, in clause 189, page 154, line 34, after “including” insert “but not limited to”.

This amendment clarifies the definition of “content” in the bill in order that anything communicated by means of an internet service is considered content, not only those examples listed.

[Alex Davies-Jones]

I will address clauses 180 to 182 together, before moving on to discuss our concerns about the remaining clauses in this group.

As we know, clause 180 determines who is the provider of an internet service and therefore who is subject to the duties imposed on providers. Labour has already raised concerns about the Bill’s lack of future-proofing and its inability to incorporate internet services that may include user-to-user models. The most obvious of those are user-to-user chat functions in gaming, which the hon. Member for Aberdeen North has raised on a number of occasions; we share her concerns.

Broadly, we think the Bill as it stands fails to capture the rapidity of technological advances, and the gaming industry is a key example of this. The Bill targets the providers that have control over who may use the user-to-user functions of a game, but in our view the clarity just is not there for emerging tech in the AI space in particular, so we would welcome the Minister’s comments on where he believes this is defined or specified in the Bill.

Clause 181 defines “user”, “United Kingdom user” and “interested person” in relation to regulated services. We welcome the clarification outlined in subsections (3) and (4) of the role of an employee at a service provider and their position when uploading content. We support the clarity on the term “internet service” in clause 182, and we welcome the provisions to capture services that are accessed via an app specifically, rather than just via an internet browser.

We welcome clause 183, which sets out the meaning of “search engine”. It is important to highlight the difference between search engines and user-to-user services, which has been attempted throughout the Bill. We heard from Google about its definition of “search”, and Labour agrees that, at their root, search services exist as an index of the web, and are therefore different from user-to-user services. We also fully appreciate the rapid nature of the internet—hundreds of web pages are created every single second—meaning that search services have a fundamental role to play in assisting users to find authoritative information that is most relevant to what they are seeking. Although search engines do not directly host content, they have an important role to play in ensuring that a delicate balance is maintained between online safety and access to lawful information. We are therefore pleased to support clause 183, which we feel broadly outlines the responsibilities placed on search services more widely.

On clause 184, Labour supports the need for a proactive technology to be used by regulated service providers to comply with their duties on illegal content, content that is harmful to children, and fraudulent advertising. In our consideration of proactive technology elsewhere in the Bill, Labour has made it clear that we support measures to keep us all safe. When speaking to new clause 20, which we debated with clause 37, I made it clear that we disagree with the Bill’s stance on proactive technology. As it is, the Bill will leave Ofcom unable to proactively require companies to use technology that can detect child abuse. Sadly, I was not particularly reassured by the Minister’s response, but it is important to place on the record again our feeling that proactive technology has an important role to play in improving online safety more widely.

Clause 185 provides information to assist Ofcom in its decision making on whether, in exercising its powers under the Bill, content is communicated publicly or privately. We see no issues with the process that the clause outlines. It is fundamentally right that, in the event of making an assessment of public or private content, Ofcom has a list of factors to consider and a subsequent process to follow. We will therefore support clause 185, which we have not sought to amend.

Clause 186 sets out the meaning of the term “functionality”. Labour supports the clause, particularly the provisions in subsection (2), which include the detailed ways in which platforms’ functionality can affect subsequent online behaviours. Despite our support, I put on the record our concern that the definitions in the clause do little to imagine or capture the broad nature of platforms or, indeed, the potential for them to expand into the AI space in future.

The Minister knows that Labour has advocated a systems-based approach to tackling online safety that would put functionality at the heart of the regulatory system. It is a frustrating reality that those matters are not outlined until clause 186. That said, we welcome the content of the clause, which we have not sought to amend.

Clause 187 aims to define “harm” as “physical or psychological harm”. Again, we feel that that definition could go further. My hon. Friend the Member for Batley and Spen spoke movingly about her constituent Zach in an earlier debate, and made a compelling case for clarity on the interplay between the physical and psychological harm that can occur online. The Minister said that the Government consider the Bill to cover a range of physical and psychological harms, but many charities disagree. What does he say to them?

We will shortly be considering new clause 23, and I will outline exactly how Labour feels that the Bill fails to capture the specific harms that women and girls face online. It is another frustrating reality that the Government have not taken the advice of so many stakeholders, and of so many women and girls, to ensure that those harms are on the face of the Bill.

Labour agrees with the provisions in clause 188, which sets out the meaning of “online safety functions” and “online safety matters”, so we have not sought to amend the clause.

Would it be appropriate for me to speak to the SNP amendment as well, Sir Roger?

[The Chair]

Not really. If the hon. Lady has finished with her own amendments, we should, as a courtesy, allow the SNP spokesperson to speak to her amendment first.

[Kirsty Blackman]

Thank you, Sir Roger. I thank the shadow Minister for running through some of our shared concerns about the clauses. Similarly, I will talk first about some of the issues and questions that I have about the clauses, and then I will speak to amendment 76. Confusingly, amendment 76 was tabled to clause 189, which we are not discussing right now. I should have raised that when I saw the provisional selection of amendments. I will do my best not to stray too far into clause 189 while discussing the amendment.

I have raised before with the Minister some of the questions and issues that I have. Looking specifically at clause 181, I very much appreciate the clarification that he has given us about users, what the clause actually means, and how the definition of “user” works. To be fair, I agree with the way the definition of “user” is written. My slight concern is that, in measuring the number of users, platforms might find it difficult to measure the number of unregistered users and the number of users who are accessing the content through another means.

Let us say, for example, that someone is sent a WhatsApp message with a TikTok link and they click on that. I do not know whether TikTok has the ability to work out who is watching the content, or how many people are watching it. Therefore, I think that TikTok might have a difficulty when it comes to the child safety duties and working out the percentage or number of children who are accessing the service, because it will not know who is accessing it through a secondary means.

I am not trying to give anyone a get-out clause. I am trying to ensure that Ofcom can properly ensure that platforms that have a significant number of children accessing them through secondary means are still subject to the child safety duties even though there may not be a high number of children accessing the platform or the provider directly. My major concern is assessing whether they are subject to the child safety duties laid out in the Bill.

I will move straight on to our amendment 76, which would amend the definition of “content” in clause 189. I have raised this issue with the Minister already. The clause, as amended, would state that

“‘content’ means anything communicated by means of an internet service, whether publicly or privately, including but not limited to”—

and then a list. The reason I suggest that we should add those words “but not limited to” is that if we are to have a list, we should either make an exhaustive list or have clarity that there are other things that may not be on the list.

I understand that it could be argued that the word “including” suggests that the provision actually goes much wider than what is in the list. I understand that that is the argument that the Minister may make, but can we have some more clarity from him? If he is not willing to accept the amendment but he is willing to be very clear that, actually, the provision does include things that we have not thought of and that do not currently exist and that it genuinely includes anything communicated by means of an internet service, that will be very helpful.

I think that the amendment would add something positive to the Bill. It is potentially the most important amendment that I have tabled in relation to future-proofing the Bill, because it does feel as though the definition of “content”, even though it says “including”, is unnecessarily restrictive and could be open to challenge should someone invent something that is not on the list and say, “Well, it’s not mentioned, so I am not going to have to regulate this in the way we have to regulate other types of content.”

I have other questions about the same provision in clause 189, but I will hold on to those until we come to the next grouping.

[Alex Davies-Jones]

I rise briefly to support amendment 76, in the name of the hon. Member for Aberdeen North. Labour supports broadening the definition of “content” in this way. I refer the Minister to our earlier contributions about the importance of including newspaper comments, for example, in the scope of the Bill. This is a clear example of a key loophole in the Bill. We believe that a broadened definition of “content” would be a positive step forward to ensure that there is future-proofing, to prevent any unnecessary harm from any future content.

[Chris Philp]

The shadow Minister, in her first contribution to the debate, introduced the broad purpose of the various clauses in this group, so I do not propose to repeat those points.

I would like to touch on one or two issues that came up. One is that clause 187 defines the meaning of “harm” throughout the Bill, although clause 150, as we have discussed, has its own internal definition of harm that is different. The more general definition of harm is made very clear in clause 187(2), which states:

“‘Harm’ means physical or psychological harm.”

That means that harm has a very broad construction in the Bill, as it should, to make sure that people are being protected as they ought to be.

--- Later in debate ---

[The Chair]

Amendment 111 is not claimed; it has been tabled by the hon. Member for Stroud (Siobhan Baillie), who is not a member of the Committee. I am assuming that nobody wishes to take ownership of it and we will not debate it.

If the hon. Member for Aberdeen North wishes to move amendment 76, she will be able to do so at the end of the stand part debate.

Question proposed, That the clause stand part of the Bill.

[Alex Davies-Jones]

As we know, the clause sets out the meanings of various terms used in the Bill. Throughout our Committee debates, Labour has raised fundamental concerns on a number of points where we feel the interpretation of the Bill requires clarification. We raised concerns as early as clause 8, when we considered the Bill’s ability to capture harm in relation to newly produced CSEA content and livestreaming. The Minister may feel he has sufficiently reassured us, but I am afraid that simply is not the case. Labour has no specific issues with the interpretations listed in clause 189, but we will likely seek to table further amendments on Report in the areas that we feel require clarification.

[Kirsty Blackman]

In one of our earlier debates, I asked the Minister about the difference between “oral” and “aural”, and I did not get a very satisfactory answer. I know the difference in their dictionary definition—I understand that they are different, although the words sound the same. I am confused that clause 189 uses “oral” as part of the definition of content, but clause 49 refers to

“one-to-one live aural communications”

in defining things that are excluded.

I do not understand why the Government have chosen to use those two different words in different places in the Bill. It strikes me that, potentially, we mean one or the other. If they do mean two different things, why has one thing been chosen for clause 49 and another thing for clause 189? Why has the choice been made that clause 49 relates to communications that are heard, but clause 189 relates to communications that are said? I do not quite get the Government’s logic in using those two different words.

I know this is a picky point, but in order to have good legislation, we want it to make sense, for there to be a good rationale for everything that is in it and for people to be able to understand it. At the moment, I do not properly understand why the choice has been made to use two different words.

More generally, the definitions in clause 189 seem pretty sensible, notwithstanding what I said in the previous debate in respect of amendment 76, which, with your permission, Sir Roger, I intend to move when we reach the appropriate point.

--- Later in debate ---

Question proposed, That the clause stand part of the Bill.

[Alex Davies-Jones]

Labour has not tabled any amendments to clause 190, which lists the provisions that define or explain terms used in the Bill. However, it will come as no surprise that we dispute the Bill’s definition of harm, and I am grateful to my hon. Friend the Member for Batley and Spen for raising those important points in our lively debate about amendment 112 to clause 150. We maintain that the Minister has missed the point, in that the Bill’s definition of harm fails to truly capture physical harm caused as a consequence of being online. I know that the Minister has promised to closely consider that as we head to Report stage, but I urge him to bear in mind the points raised by Labour, as well as his own Back Benchers.

The Minister knows, because we have repeatedly raised them, that we have concerns about the scope of the Bill’s provisions relating to priority content. I will not repeat myself, but he will be unsurprised to learn that this is an area in which we will continue to prod as the Bill progresses through Parliament.

[Chris Philp]

I have made points on those issues previously. I do not propose to repeat now what I have said before.

Question put and agreed to.

Clause 190 accordingly ordered to stand part of the Bill.

Clause 191 ordered to stand part of the Bill.

Clause 192

Extent

--- Later in debate ---

[Alex Davies-Jones]

The clause provides that the Bill extends to England, Wales, Scotland and Northern Ireland, subject to the exceptions set out in subsections (2) to (7). We welcome clarification of how the devolved nations may be affected by the provisions of the Bill—that is of particular importance to me as a Welsh MP. It is important to clarify how amendments or appeals, as outlined in subsection (7), may work in the context of devolution more widely.

Labour also supports new clause 35 and Government amendment 141. Clearly, those working for Ofcom should have a defence to the offence of publishing obscene articles as, sadly, we see that as a core part of establishing the online safety regime in full. We know that having such a defence available is likely to be an important part of the regulator’s role and that of its employees. Labour is therefore happy to support this sensible new clause and amendment.

--- Later in debate ---

[The Chair]

Amendment 139 was tabled by a Member who is not a member of the Committee, and nobody has claimed it, so we come to amendment 49.

[Alex Davies-Jones]

I beg to move amendment 49, in clause 193, page 161, line 1, leave out subsection (2) and insert—

“(2) Subject to subsection (2A) below, the other provisions of this Act come into force on such day as the Secretary of State may by regulations appoint.

(2A) The provisions of Part 5 shall come into force at the end of the period of three months beginning with the day on which this Act is passed.”

This amendment would bring Part 5 into force three months after the Act is passed.

We all understand the need for the Bill, which is why we have been generally supportive in Committee. I hope we can also agree that the measures that the Bill introduces must come into force as soon as is reasonably possible. That is particularly important for the clauses introducing protections for children, who have been subject to the harms of the online world for far too long already. I was glad to hear the Minister say in our discussions of clauses 31 to 33 that the Government share the desire to get such protections in place quickly.

My hon. Friend the Member for Worsley and Eccles South also spoke about our concerns about the commencement and transitional provisions when speaking to clauses 170 to 172. We fundamentally believe that the provisions on pornography in part 5 cannot, and should not, be susceptible to further delay, because they require no secondary legislation. I will come to that point in my comments on the amendment. More broadly, I will touch briefly on the reasons why we cannot wait for the legislation and make reference to a specific case that I know colleagues across the House are aware of.

My hon. Friend the Member for Reading East (Matt Rodda) has been a powerful voice on behalf of his constituents Amanda and Stuart Stephens, whose beloved son Olly was tragically murdered in a field outside his home. A BBC “Panorama” investigation, shown only a few days ago, investigated the role that social media played in Olly’s death. It specifically highlighted disturbing evidence that some social media algorithms may still promote violent content to vulnerable young people. That is another example highlighting the urgent need for the Bill, along with a regulatory process to keep people safe online.

We also recognise, however, the important balance between the need for effective development of guidance by Ofcom, informed by consultation, and the need to get the duties up and going. In some cases, that will mean having to stipulate deadlines in the Bill, which we feel is a serious omission and oversight at present.

The amendment would bring part 5 of the Bill into force three months after it is enacted. The Minister knows how important part 5 is, so I do not need to repeat myself. The provisions of the amendment, including subsequent amendments that Labour and others will likely table down the line, are central to keeping people safe online. We have heard compelling evidence from experts and speeches from colleagues across the House that have highlighted how vital it is that the Bill goes further on pornographic content. The amendment is simple. It seeks to make real, meaningful change as soon as is practically possible. The Bill is long delayed, and providers and users are desperate for clarity and positive change, which is what led us to tabling the amendment.

[Kirsty Blackman]

In the interests of not having to make a speech in this debate, I want to let the hon. Member know that I absolutely support the amendment. It is well balanced, brings the most important provisions into force as soon as possible, and allows the Secretary of State to appoint dates for the others.

[Alex Davies-Jones]

I welcome the hon. Member’s intervention, and I am grateful for her and her party’s support for this important amendment.

It is also worth drawing colleagues’ attention to the history of issues, which have been brought forward in this place before. We know there was reluctance on the part of Ministers when the Digital Economy Act 2017 was on the parliamentary agenda to commence the all-important part 3, which covered many of the provisions now in part 5. Ultimately, the empty promises made by the Minister’s former colleagues have led to huge, record failures, even though the industry is ready, having had years to prepare to implement the policy. I want to place on record my thanks to campaigning groups such as the Age Verification Providers Association and others, which have shown fierce commitment in getting us this far.

It might help if I cast colleagues’ minds back to the Digital Economy Act 2017, which received Royal Assent in April of that year. Following that, in November 2018, the then Minister of State for Digital and Creative Industries told the Science and Technology Committee that part 3 of the DEA would be in force “by Easter next year”. Then, in December 2018, both Houses of Parliament approved the necessary secondary legislation, the Online Pornography (Commercial Basis) Regulations 2018, and the required statutory guidance.

But shortly after, in April 2018, the first delay arose when the Government published an online press release stating that part 3 of the DEA would not come into force until 15 July 2019. However, June 2019 came around and still there was nothing. On 20 June, five days after it should have come into force, the then Under-Secretary of State told the House of Lords that the defendant had failed to notify the European Commission of the statutory guidance, which would need to be done, and that that would result in a delay to the commencement of part 3

“in the region of six months”.—[Official Report, House of Lords, 20 June 2019; Vol. 798, c. 883.]

However, on 16 October 2019, the then Secretary of State announced via a written statement to Parliament that the Government

“will not be commencing part 3 of the Digital Economy Act 2017 concerning age verification for online pornography.”—[Official Report, 16 October 2019; Vol. 666, c. 17WS.]

A mere 13 days later, the Government called a snap general election. I am sure those are pretty staggering realities for the Minister to hear—and defend—but I am willing to listen to his defence. It really is not good enough. The industry is ready, the technology has been there for quite some time, and, given this Government’s fondness for a U-turn, there are concerns that part 5 of the Bill, which we have spent weeks deliberating, could be abandoned in a similar way as part 3 of the DEA was.

The Minister has failed to concede on any of the issues we have raised in Committee. It seems we are dealing with a Government who are ignoring the wide-ranging gaps and issues in the Bill. He has a relatively last-ditch opportunity to at least bring about some positive change, and to signify that he is willing to admit that the legislation as it stands is far from perfect. The provisions in part 5 are critical—they are probably the most important in the entire Bill—so I urge him to work with Labour to make sure they are put to good use in a more than reasonable timeframe.

[Chris Philp]

On the implementation of part 3 of the Digital Economy Act 2017, all the events that the shadow Minister outlined predated my time in the Department. In fact, apart from the last few weeks of the period she talked about, the events predated my time as a Minister in different Departments, and I cannot speak for the actions and words of Ministers prior to my arrival in DCMS. What I can say, and I have said in Committee, is that we are determined to get the Bill through Parliament and implemented as quickly as we can, particularly the bits to do with child safety and the priority illegal content duties.

The shadow Minister commented at the end of her speech that she thought the Government had been ignoring parliamentary opinion. I take slight issue with that, given that we published a draft Bill in May 2021 and went through a huge process of scrutiny, including by the Joint Committee of the Commons and the Lords. We accepted 66 of the Joint Committee’s recommendations, and made other very important changes to the Bill. We have made changes such as addressing fraudulent advertising, which was previously omitted, and including commercial pornography—meaning protecting children—which is critical in this area.

The Government have made a huge number of changes to the Bill since it was first drafted. Indeed, we have made further changes while the Bill has been before the Committee, including amending clause 35 to strengthen the fraudulent advertising duties on large search companies. Members of Parliament, such as the right hon. Member for East Ham (Sir Stephen Timms), raised that issue on Second Reading. We listened to what was said at that stage and we made the changes.

There have also been quite a few occasions during these Committee proceedings when I have signalled—sometimes subtly, sometimes less so—that there are areas where further changes might be forthcoming as the Bill proceeds through both Houses of Parliament. I do not think the hon. Member for Pontypridd, or any member of the Committee, should be in any doubt that the Government are very open to making changes to the Bill where we are able to and where they are right. We have done so already and we might do so again in the future.

On the specifics of the amendment, we share the intention to protect children from accessing pornography online as quickly as possible. The amendment seeks to set a three-month timeframe within which part 5 must come into force. However, an important consideration for the commencement of part 5 will be the need to ensure that all kinds of providers of online pornography are treated the same, including those hosting user-generated content, which are subject to the duties of part 3. If we take a piecemeal approach, bringing into force part 5, on commercial pornography, before part 3, on user-to-user pornography, that may enable some of the services, which are quite devious, to simply reconfigure their services to circumvent regulation or cease to be categorised as part 5 services and try to be categorised as part 3 services. We want to do this in a comprehensive way to ensure that no one will be able to wriggle out of the provisions in the Bill.

Parliament has also placed a requirement on Ofcom to produce, consult on and publish guidance for in-scope providers on meeting the duties in part 5. The three-month timescale set out in the amendment would be too quick to enable Ofcom to properly consult on that guidance. It is important that the guidance is right; if it is not, it may be legally challenged or turn out to be ineffective.

I understand the need to get this legislation implemented quickly. I understand the scepticism that flows from the long delays and eventual cancellation of part 3 of the Digital Economy Act 2017. I acknowledge that, and I understand where the sentiment comes from. However, I think we are in a different place today. The provisions in the Bill have been crafted to address some of the concerns that Members had about the previous DEA measures—not least the fact that they are more comprehensive, as they cover user-to-user, which the DEA did not. There is therefore a clear commitment to getting this done, and getting it done fast. However, we also have to get it done right, and I think the process we have set out does that.

The Ofcom road map is expected before the summer. I hope that will give further reassurance to the Committee and to Parliament about the speed with which these things can get implemented. I share Members’ sentiments about needing to get this done quickly, but I do not think it is practical or right to do it in the way set out in amendment 49.

[Alex Davies-Jones]

I am grateful for the Minister’s comments. However, I respectfully disagree, given the delays already since 2017. The industry is ready for this. The providers of the age verification services are ready for this. We believe that three months is an adequate timeframe, and it is vital that we get this done as quickly as possible. With that in mind, I will be pushing amendment 49 to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Chris Philp]

New clause 42 introduces new schedule 2. New clause 43 provides that the additional fees charged to providers under new schedule 2 must be paid into the consolidated fund. We discussed that a few days ago. That is where the fees are currently destined and I owe my right hon. Friend the Member for Basingstoke some commentary on this topic in due course. The Bill already provided that monetary penalties must be paid into the Consolidated Fund; the provisions are now placed into that clause.

New schedule 2, which is quite detailed, makes provisions in connection with Ofcom’s ability to recover its initial costs, which we have previously debated. As discussed, it is important that the taxpayer not only is protected from the ongoing costs but that the set-up costs are recovered. The taxpayer should not have to pay for the regulatory framework; the people who are being regulated should pay, whether the costs are incurred before or after commencement, in line with the “polluter pays” principle. Deep in new schedule 2 is the answer to the question that the hon. Member for Aberdeen North asked a day or two ago about the period over which set-up costs can be recovered, with that period specified as between three and five years. I hope that provides an introduction to the new clauses and new schedules.

[Alex Davies-Jones]

We welcome this grouping, which includes two new clauses and a new schedule. Labour has raised concerns about the future funding of Ofcom more widely, specifically when we discussed groupings on clause 42. The Minister’s response did little to alleviate our concerns about the future of Ofcom’s ability to raise funds to maintain its position as the regulator. Despite that, we welcome the grouping, particularly the provisions in the new schedule, which will require Ofcom to seek to recover the costs it has incurred when preparing to take on functions as the regulator of services under the Bill by charging fees to providers of services. This is an important step, which we see as being broadly in line with the kind of mechanisms already in place for other, similar regulatory regimes.

Ultimately, it is right that fees charged to providers under new schedule 2 must be paid into the Consolidated Fund and important that Ofcom can recover its costs before a full fee structure and governance process is established. However, I have some questions for the Minister. How many people has Ofcom hired into roles, and can any of those costs count towards the calculation of fees? We want to ensure that other areas of regulation do not lose out as a consequence. Broadly speaking, though, we are happy to support the grouping and have not sought to table amendment at this stage.

[Chris Philp]

So far as I am aware, all the costs incurred by Ofcom in relation to the duties in the Bill can be recouped by way of fees. If that is not correct, I will write to the hon. Lady saying so, but my understanding is that any relevant Ofcom cost will be in the scope of the fees.

Question put and agreed to.

New clause 42 accordingly read a Second time, and added to the Bill.

New Clause 43

Payment of sums into the Consolidated Fund

“(1) Section 400 of the Communications Act (destination of penalties etc) is amended as follows.

(2) In subsection (1), after paragraph (i) insert—

‘(j) an amount paid to OFCOM in respect of a penalty imposed by them under Chapter 6 of Part 7 of the Online Safety Act 2022;

(k) an amount paid to OFCOM in respect of an additional fee charged under Schedule (Recovery of OFCOM’s initial costs) to the Online Safety Act 2022.’

(3) In subsection (2), after ‘applies’ insert ‘(except an amount mentioned in subsection (1)(j) or (k))’.

(4) After subsection (3) insert—

‘(3A) Where OFCOM receive an amount mentioned in subsection (1)(j) or (k), it must be paid into the Consolidated Fund of the United Kingdom.’

(5) In the heading, omit ‘licence’.”—(Chris Philp.)

This new clause provides that additional fees charged to providers under NS2 must be paid into the Consolidated Fund. The Bill already provided that monetary penalties must be paid into the Consolidated Fund, and those provisions are now placed in this clause.

Brought up, read the First and Second time, and added to the Bill.

New Clause 3

Establishment of Advocacy Body

“(1) There is to be a body corporate (‘the Advocacy Body’) to represent interests of child users of regulated services.

(2) A ‘child user’—

(a) means any person aged 17 years or under who uses or is likely to use regulated internet services; and

(b) includes both any existing child user and any future child user.

(3) The work of the Advocacy Body may include—

(a) representing the interests of child users;

(b) the protection and promotion of these interests;

(c) any other matter connected with those interests.

(4) The ‘interests of child users’ means the interest of children in relation to the discharge by any regulated company of its duties under this Act, including—

(a) safety duties about illegal content, in particular CSEA content;

(b) safety duties protecting children;

(c) ‘enforceable requirements’ relating to children.

(5) The Advocacy Body must have particular regard to the interests of child users that display one or more protected characteristics within the meaning of the Equality Act 2010.

(6) The Advocacy Body will be defined as a statutory consultee for OFCOM’s regulatory decisions which impact upon the interests of children.

(7) The Secretary of State may appoint an organisation known to represent children to be designated the functions under this Act, or may create an organisation to carry out the designated functions.”—(Barbara Keeley.)

This new clause creates a new advocacy body for child users of regulated internet services.

Brought up, and read the First time.

--- Later in debate ---

[Alex Davies-Jones]

I am grateful to the Minister for his support for Labour legislation. Does he acknowledge that we have different Children’s Commissioners across the nations of the UK? Each would have the same rights to advocate for children, so we would have four, rather than one focusing on one specific issue, which is what the Children’s Commissioners across the UK are advocating for.

[Chris Philp]

I do not have in front of me the relevant devolved legislation—I have only the Children Act 2004 directly in front of me—but I assume it is broadly similar. The hon. Member for Aberdeen North can correct me if I am wrong, but I assume it is probably broadly similar in the way—[Interruption.] She is not sure, so I do not feel too bad about not being sure either. I imagine it is similar. I am not sure that having similar statutory bodies with the same function—we would create another with the new clause—is necessarily helpful.

The Bill sets out formal processes that allow other organisations, such as the NSPCC, to raise complaints that have to be dealt with. That ensures that the voices of groups—including children, but not just children—will be heard. I suspect that if we have a children’s advocacy body, other groups will want them and might feel that they have been overlooked by omission.

The good thing about the way the super-complaint structure in clause 140 works is that it does not prescribe what the groups are. Although I am sure that children will be top of the list, there will be other groups that want to advocate and to be able to bring super-complaints. I imagine that women’s groups will be on that list, along with groups advocating for minorities and people with various sexual orientations. Clause 140 is not exclusive; it allows all these groups to have a voice that must be heard. That is why it is so effective.

My right hon. Friend the Member for Basingstoke and the hon. Member for Batley and Spen asked whether the groups have enough resources to advocate on issues under the super-complaint process. That is a fair question. The allocation of funding to different groups tends to be done via the spending review process. Colleagues in other Departments—the Department for Education or, in the case of victims, the Ministry of Justice—allocate quite a lot of money to third-sector groups. The victims budget was approximately £200 million a year or two ago, and I am told it has risen to £300 million for the current financial year. That is the sort of funding that can find its way into the hands of the organisations that advocate for particular groups of victims. My right hon. Friend asked whether the proceeds of fines could be applied to fund such work, and I have undertaken to raise that with the Treasury.

We already have a statutory advocate for children: the four Children’s Commissioners for the four parts of the United Kingdom. We have the super-complaints process, which covers more than children’s groups, crucial though they are. We have given Ofcom statutory duties to consult when developing its codes of practice, and we have money flowing via the Ministry of Justice, the DFE and others, into advocate groups. Although we agree with the intention behind new clause 3, we believe its objectives are very well covered via the mechanisms that I have just set out at some length.