Online Safety Bill

Baroness Chakrabarti Excerpts

2nd reading
Wednesday 1st February 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, the internet is in so many ways a wonderful new continent, discovered only in my adult lifetime. But like older territories it has not been the unadulterated bastion of freedom and equality that its pilgrim and founding mothers and fathers would have dreamt of. While it has created enormous opportunities for expression, interconnection and learning, it has also allowed the monetising of hate and abuses of power up to and including serious criminal offences to the detriment of children and other vulnerable people.

To a large extent, big tech corporations with monopolistic power have become the new imperium, colonising this new continent without the desire, expertise, independence or accountability to properly regulate of police it. Further, as the technology has moved at a breath-taking pace, national Parliaments and Governments have lagged behind in even fulfilling their basic duties to resource the enforcement of existing criminal law online or, indeed, to ensure sufficient tax raising from the new emperors who can employ former senior politicians for their lobbying, influence national elections via their products and seek to further their hegemony even beyond our shrinking, burning planet.

Alongside corporate and governmental neglect, there have been abuses of people’s rights and freedoms by state and non-state entities around the world. It is very possible to be too permissive in allowing private abuse and simultaneously too interventionist so as to abuse political power. Noble Lords would be wise to hold on to that duality as they undertake the most anxious line-by-line scrutiny of this Bill. With that in mind, given the length, novelty and complexity of this draft legislation, I regret the short time allocated today. The sheer number of speakers should have justified two days of Second Reading, if only to prevent de facto Second Reading speeches in Committee.

Legislation is required and the perfect should not be the enemy of a first attempt at the possible. However, given the fast developing and global landscape, further legislation will no doubt follow. Ultimately, I believe that His Majesty’s Government should seek to pioneer a global internet and AI treaty in due course—or at least, a Labour Government should. For one thing, the black boxes of advanced algorithms must be made transparent and subject to legal control so as not to entrench inequality, discrimination and hate.

That may sound ambitious, but it will take that kind of ambition—the kind of ambition that we saw in the post-war era to establish some notion of an international rule of law and fundamental rights and freedoms in the real world truly to establish a proper rule of law with protected human rights in the virtual one. At the very least, what is already criminal should be policed online. However, we should be wary of outsourcing too much of that policing role to corporations without at least binding them more directly to the free expression and personal privacy protection duties that bind Ofcom, police and prosecutors under the Convention on Human Rights.

Furthermore, we should look again at tightening up over-broad public order offences, such as causing alarm or distress under Section 5 of the Public Order Act, before allowing them to constitute priority illegal content for proactive removal. Conversely, will the Minister confirm that, for example, euphemistic sex for rent adverts targeting poor, vulnerable women, in particular, will be a priority under Section 52 of the Sex Offences Act? As this experiment in national regulation of an international phenomenon develops, the power of the Executive to direct Ofcom sets a dangerous politicising precedent for regimes elsewhere. They should be removed.

Online Safety Bill

Baroness Chakrabarti Excerpts

Committee stage
Wednesday 19th April 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I think we need to move now to closing speeches, if that seems appropriate—

[Baroness Chakrabarti (Lab)]

I have tried to be patient, and I will be very brief. A lot has been said about a lawyer’s paradise. At the moment, the lawyers are over here and paradise is over there and there is a gulf between us. Like the noble Lord, Lord Allan of Hallam, I declare my former interest. I did not get any shillings from Facebook or any other big tech empires, but I was a government lawyer for some years, and it is in that vein that I may have a small contribution to make, if the noble Lord, Lord Clement-Jones, does not mind.

There can be a real benefit to an amendment such as this. I want to explain why, not by repeating anything that I said at Second Reading on the substance of the Bill but by speaking from the perspective of legislative drafting and its policy. I will confine my short remarks to that.

In my view, length is always an issue. My noble friend was quite right when he moved his amendment to say that the burden was on him because he was going to add to the length of a very long Bill. In my experience as a government lawyer for about five and half years, with the mixed privilege of sitting over there through many Bills, sometimes counterintuitively a little extra length can actually aid clarity. Sometimes, a very tightly drafted Bill that is complex can be more difficult to read if, for example, it has many schedules and you need a number of copies open at any one time in order to make reference to what will be substantive sections and subsections of the Act. Ironically, it is sometimes beneficial to add a clause of this kind.

There are, I would argue, three potential reasons why Governments sometimes want to do this in relation to legislative policy. One reason is accessibility, and that has been mentioned by a number of noble Lords today. That is, I think, generally a good thing. It is not easy to achieve; I do not blame any colleagues in the Box or the Office of the Parliamentary Counsel, or Ministers, for the challenge of legislating in a complex, fast-developing area that is only going to change over time. But accessibility can be aided at times by a provision of the kind that my noble friend Lord Stevenson of Balmacara, the noble Baroness, Lady Kidron, and others are proposing.

A second possible reason is to aid interpretation, which can be very beneficial as well. That is not just interpretation for judges, litigators and these wicked barracuda lawyers that everyone is so concerned about. Interpretation is important in practice when people are having to deal on a day-to-day basis with the functioning of contentious and important legislation; that is when they have executive, regulatory and legislative functions under a measure of this kind. It is to aid their interpretation—a point made rather well, if I may say so, by the noble Baroness, Lady Harding.

So, it is not just about interpretation for lawyers, in order to sue based on what things mean; it is to aid regulators of those in the regulated sector and, potentially, members of the public and pressure groups, with some advice. As a lawyer, I consider myself a half-decent legislative professional, and this is a complex Bill for me. It would be aided by a provision of the kind my noble friends are proposing. I am saying this, really, to tempt the Minister seriously to consider something like it. I suppose I am partly trying to pre-empt what I suspect is in his brief to say by way of rebuttal in just a moment.

The third potential reason to have a provision like this at the beginning of the Bill is pure politics, and we sometimes see that in Bills: it is total flummery, and just a way of making a big political statement of intent. That is never, in my view, a good enough reason by itself. But that is not what is happening or what is suggested in my noble friend’s amendment.

I now come to complexity and the benefits of a purposive provision in this Bill. Before the Minister says that it is not appropriate, not what we do and not what parliamentary counsel does, may I remind noble Lords of another Bill going through Parliament at the moment? In contrast to this Bill, which consists of 247 pages, 212 clauses and 17 schedules, we are going to have another controversial—more controversial, I would argue—Bill in due course with a mere 59 pages, 58 clauses and one schedule, which is just a list of countries. That Illegal Migration Bill has, in fact, a purposive provision right at the beginning, in the first subsection of Clause 1. I am not making a point about the substance of that legislation; I am just pre-empting any argument that this is not what we do and not how we draft Bills. Sometimes, it appears, it is. As I say, it is a much shorter, much simpler, dare I say even more controversial Bill, and perhaps there is more politics there than accessibility of interpretation.

That was my cheap point. What I really want to say to all noble Lords in this Committee is that for the purposes of debating this amendment, let us put to one side what we think about the Bill and the various clauses and amendments we would like to see or not see. Let us just ask: is this amendment as drafted and the approach recommended by my noble friend going to aid accessibility and interpretation—not litigation and lawyers and those wicked people in my profession, but the people who, day to day, will have to live and work with the proposed new regime? Whatever one’s views—be they those of the noble Baroness, Lady Fox, or others—about the Bill as it stands or as it should or should not stand, as amended, something like Amendment 1, in my submission, is a very good idea.