Online Safety Bill

Baroness Stowell of Beeston Excerpts

Committee stage
Tuesday 23rd May 2023 Lords Chamber

At heart, I recognise that this is in principle no more than ensuring that the expertise and knowledge of those who have served in an appropriate parliamentary Select Committee are grafted on to the normal affirmative or negative approval mechanisms for secondary legislation, but I also think it opens up a substantial new way of doing what has, on many occasions, been merely a rubber-stamping of what can be rather significant policy changes. It also gives a good opportunity to bring Parliament and parliamentarians into the policy delivery mechanism in what seems to me to be a satisfying way. It makes sense to do this for a complex new regime in a fast-changing technological environment such as the one that the Bill is ushering in, but it might have other applications, particularly consideration of other legislation that is currently in the pipeline. I beg to move.

[Baroness Stowell of Beeston (Con)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Stevenson. I am grateful to him, the noble Lord, Lord Clement-Jones, and the noble Viscount, Lord Colville of Culross, for their support for my amendments, which I will come to in a moment. Before I do, I know that my noble friend Lord Moylan will be very disappointed not to be here for the start of this debate. From the conversation I had with him last week when we were deliberating the Bill, I know that he is detained on committee business away from the House. That is what is keeping him today; I hope he may join us a bit later.

Before I get into the detail of my amendments, I want to take a step back and look at the bigger picture. I remind noble Lords that on the first day in Committee, when we discussed the purpose of the Bill, one of the points I made was that, in my view, the Bill is about increasing big tech’s accountability to the public. For too long, and I am not saying anything that is new or novel here, it has enjoyed power beyond anything that other media organisations have enjoyed—including the broadcasters, which, as we know, have been subject to regulation for a long time now. I say that because, in my mind, the fundamental problem this legislation seeks to address is the lack of accountability of social media and tech platforms to citizens and users for the power and influence they have over our lives and society, as well as their economic impact. The latter will be addressed via the Digital Markets, Competition and Consumers Bill.

I emphasise “if that is the problem”, because when we talk about this bit of the Bill and the amendments we have tabled, we have started—and I am as guilty of this as anyone else—to frame it very much as if the problem is around the powers for the Secretary of State. In my view, we need to think about why they are not, in the way they are currently proposed, the right solution to the problem that I have outlined.

I do not think what we should be doing, as some of what is proposed in the Bill tends to do, is shift the democratic deficit from big tech to the regulator, although, of course, like all regulators, Ofcom must serve the public interest as a whole, which means taking everyone’s expectations seriously in the way in which it goes about its work.

That kind of analysis of the problem is probably behind some of what the Government are proposing by way of greater powers for the Secretary of State for oversight and direction of the regulator in what is, as we have heard, a novel regulatory space. I think that the problem with some, although not all, of the new powers proposed for the Secretary of State is that they would undermine the independence of Ofcom and therefore dilute the regulator’s authority over the social media and tech platforms, and that is in addition to what the noble Lord, Lord Stevenson, has already said, which is that there is a fundamental principle about the independence of media regulators in the western world that we also need to uphold and to which the Government have already subscribed.

If that is the bigger picture, my amendments would redress the balance between the regulator and the Executive, but there remains the vital role of Parliament, which I will come back to in a moment and which the noble Lord, Lord Stevenson, has already touched on, because that is where we need to beef up oversight of regulators.

Before I get into the detail, I should also add that my amendments have the full authority of your Lordships’ Communications and Digital Select Committee, which I have the great honour of chairing. In January, we took evidence from my noble friend Minister and his colleague, Paul Scully, and our amendments are the result of their evidence. I have to say that my noble friend on the Front Bench is someone for whom I have huge respect and admiration, but on that day when the Ministers were before us, we found as a committee that the Government’s evidence in respect of the powers that they were proposing for the Secretary of State was not that convincing.

I shall outline the amendments, starting with Amendments 113, 114, and 115. I am grateful to other noble Lords who have signed them, which demonstrates support from around the House. The Bill allows the Secretary of State to direct Ofcom to change its codes of practice on regulating social media firms for reasons of public policy. While it is legitimate for the Government to set strategic direction, this goes further and amounts to direct and unnecessary interference. The Government have suggested clarifying this clause, as we have heard, with a list of issues such as security, foreign policy, economic policy and burden to business, but it is our view as a committee that the list of items is so vague and expansive that almost anything could be included in it. Nor does it recognise the fact that the Government should respect the separation of powers between Executive and regulator in the first place, as I have already described. These amendments would therefore remove the Secretary of State’s power to direct Ofcom for reasons of public policy. Instead, the Secretary of State may write to Ofcom with non-binding observations on issues of security and child safety to which it must have regard. It is worth noting that under Clause 156 the Secretary of State still has powers to direct Ofcom in special circumstances to address threats to public health, safety and security, so the Government will not be left toothless, although I note that the noble Lord, Lord Stevenson, is proposing to remove Clause 156. Just to be clear, the committee is not proposing removing Clause 156; that is a place where the noble Lord and I propose different remedies.

Amendments 117 and 118 are about limiting the risk of infinite ping-pong. As part of its implementation work, Ofcom will have to develop codes of practice, but the Government can reject those proposals infinitely if they disagree with them. At the moment that would all happen behind closed doors. In theory, this process could go on for ever, with no parliamentary oversight. The Select Committee and I struggle to understand why the Government see this power as necessary, so our amendments would remove the Secretary of State’s power to issue unlimited directions to Ofcom on a draft code of practice, replacing it with a maximum of two exchanges of letters.

Amendment 120, also supported by the noble Lords I referred to earlier, is closely related to previous amendments. It is designed to improve parliamentary oversight of Ofcom’s draft codes of practice. Given the novel nature of the proposals to regulate the online world, we need to ensure that the Government and Ofcom have the space and flexibility to develop and adapt their proposals accordingly, but there needs to be a role for Parliament in scrutinising that work and being able to hold the Executive and regulator to account where needed. The amendment would ensure that the affirmative procedure, and not the negative procedure currently proposed in the Bill, was used to approve Ofcom’s codes of practice if they had been subject to attempts by the Secretary of State to introduce changes. This amendment is also supported by the Delegated Powers and Regulatory Reform Committee in its report.

Finally, Amendment 257 would remove paragraph (a) from Clause 157(1). This is closely related to previous amendments regarding the Secretary of State’s powers. The clause currently provides powers to provide wide-ranging guidance to Ofcom about how it carries out its work. This is expansive and poorly defined, and the committee again struggled to see the necessity for it. The Secretary of State already has extensive powers to set strategic priorities for Ofcom, establish expert advisory committees, direct action in special circumstances, direct Ofcom about its codes or just write to it if my amendments are accepted, give guidance to Ofcom about its media literacy work, change definitions, and require Ofcom to review its codes and undertake a comprehensive review of the entire online safety regime. Including yet another power to give unlimited guidance to Ofcom about how it should carry out its work seems unnecessary and intrusive, so this amendment would remove it, by removing paragraph (a) of Clause 157(1).

I hope noble Lords can see that, even after taking account of the amendments that the committee is proposing, the Secretary of State would be left with substantial and suitable powers to discharge their responsibilities properly.

Perhaps I may comment on some of the amendments to which I have not added my name. Amendment 110 from the noble Lords, Lord Stevenson and Lord Clement-Jones, and Amendment 290 from the noble Lord, Lord Stevenson, are about parliamentary oversight by Select Committees. I do not support the detail of these amendments nor the procedures proposed, because I believe they are potentially too cumbersome and could cause too much delay to various processes. As I have already said, and as the noble Lord, Lord Stevenson, said in opening, the Select Committee and I are concerned to ensure that there is adequate parliamentary oversight of Ofcom as it implements this legislation over the next few years. My committee clearly has a role in this, alongside the new DSIT Select Committee in the House of Commons and perhaps others, but we need to guard against duplication and fragmentation.

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[Lord Parkinson of Whitley Bay (Con)]

When we publish the wording, we will rightly have an opportunity to discuss it before the debate on Report. I will be happy to discuss it with noble Lords then. On the broader points about economic policy, that is a competency of His Majesty’s Government, not an area of focus for Ofcom. If the Government had access to additional information that led them to believe that a code of practice as drafted could have a significant, disproportionate and adverse effect on the livelihoods of the British people or to the broader economy, and if it met the test for exceptional circumstances, taking action via a direction from the Secretary of State could be warranted. I will happily discuss that when my noble friend and others see the wording of the changes we will bring on Report. I am sure we will scrutinise that properly, as we should.

I was about to say that, in addition to the commitment we have already made, in the light of the debate today we will also consider whether transparency about the use of this power could be increased further, while retaining the important need for government oversight of issues that are genuinely beyond Ofcom’s remit. I am conscious that, as my noble friend Lady Stowell politely said, I did not convince her or your Lordships’ committee when I appeared before it with my honourable friend Paul Scully. I am happy to continue our discussions and I hope that we may reach some understanding on this important area.

[Baroness Stowell of Beeston (Con)]

I am sorry to interrupt, but may I clarify what my noble friend just said? I think he said that, although he is open to increasing the transparency of the procedure, he does not concede a change—from direction to a letter about guidance which Ofcom should take account of. Is he willing to consider that as well?

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[Baroness Harding of Winscombe (Con)]

My Lords, I also failed to stand up before the noble Lord, Lord Allan, did. I too am always slightly nervous to speak before or after him for fear of not having the detailed knowledge that he does. There have been so many powerful speeches in this group. I will try to speak swiftly.

My role in this amendment was predefined for me by the noble Baroness, Lady Kidron, as the midwife. I have spent many hours debating these amendments with my noble friend Lord Bethell, the noble Baroness, Lady Kidron, and with many noble Lords who have already spoken in this debate. I think it is very clear from the debate why it is so important to put a definition of age assurance and age verification on the face of the Bill. People feel so passionately about this subject. We are creating the digital legal scaffolding, so being really clear what we mean by the words matters. It really matters and we have seen it mattering even in the course of this debate.

My two friends—they are my friends—the noble Baroness, Lady Kidron, and my noble friend Lord Bethell both used the word “proportionate”, with one not wanting us to be proportionate and the other wanting us to be proportionate. Yet, both have their names to the same amendment. I thought it might be helpful to explain what I think they both mean—I am sure they will interrupt me if I get this wrong—and explain why the words of the amendment matter so much.

Age assurance should not be proportionate for pornography. It should be the highest possible bar. We should do everything in our power to stop children seeing it, whether it is on a specific porn site or on any other site. We do not want our children to see pornography; we are all agreed on that. There should not be anything proportionate about that. It should be the highest bar. Whether “beyond reasonable doubt” is the right wording or it should instead be “the highest possible bar practically achievable”, I do not know. I would be very keen to hear my noble friend the Minister’s thoughts on what the right wording is because, surely, we are all clear it should be disproportionate; it should absolutely be the hardest we can take.

Equally, age assurance is not just about pornography, as the noble Lord, Lord Allan, has said. We need to have a proportionate approach. We need a ladder where age assurance for pornography sits at the top, and where we are making sure that nine year-olds cannot access social media sites if they are age-rated for 13. We all know that we can go into any primary school classroom in the land and find that the majority of nine year-olds are on social media. We do not have good age assurance further down.

As both the noble Lord, Lord Allan, and the noble Baroness, Lady Kidron, have said, we need age assurance to enable providers to adapt the experience to make it age-appropriate for children on services we want children to use. It needs to be both proportionate and disproportionate, and that needs to be defined on the face of the Bill. If we do not, I fear that we will fall into the trap that the noble Lord, Lord Allan, mentioned: the cookie trap. We will have very well-intentioned work that will not protect children and will go against the very thing that we are all looking for.

In my role as the pragmatic midwife, I implore my noble friend the Minister to hear what we are all saying and to help us between Committee and Report, so that we can come back together with a clear definition of age assurance and age verification on the face of the Bill that we can all support.

[Baroness Stowell of Beeston (Con)]

My Lords, about half an hour ago I decided I would not speak, but as we have now got to this point, I thought I might as well say what I was going to say after all. I reassure noble Lords that in Committee it is perfectly permissible to speak after the winder, so no one is breaking any procedural convention. That said, I will be very brief.

My first purpose in rising is to honour a commitment I made last week when I spoke against the violence against women and girls code. I said that I would none the less be more sympathetic to and supportive of stronger restrictions preventing child access to pornography, so I want to get my support on the record and honour that commitment in this context.

My noble friend Lady Harding spoke on the last group about bringing our previous experiences to bear when contributing to some of these issues. As I may have said in the context of other amendments earlier in Committee, as a former regulator, I know that one of the important guiding principles is to ensure that you regulate for a reason. It is very easy for regulators to have a set of rules. The noble Baroness, Lady Kidron, referred to rules of the road for the tech companies to follow. It is very easy for regulators to examine whether those rules are being followed and, having decided that they have, to say that they have discharged their responsibility. That is not good enough. There must be a result, an outcome from that. As the noble Lord, Lord Allan, emphasised, this must be about outcomes and intended benefits.

I support making it clear in the Bill that, as my noble friend Lady Harding said, we are trying to prevent, disproportionately, children accessing pornography. We will do all we can to ensure that it happens, and that should be because of the rules being in place. Ofcom should be clear on that. However, I also support a proportionate approach to age assurance in all other contexts, as has been described. Therefore, I support the amendments tabled by the noble Baroness, Lady Kidron, and my noble friend Lord Bethell, and the role my noble friend Lady Harding has played in arriving at a pragmatic solution.

[Lord Stevenson of Balmacara (Lab)]

My Lords, it is a privilege to be in your Lordships’ House, and on some occasions it all comes together and we experience a series of debates and discussions that we perhaps would never have otherwise reached, and at a level which I doubt could be echoed anywhere else in the world. This is one of those days. We take for granted that every now and again, we get one of these rapturous occasions when everything comes together, but we forget the cost of that. I pay tribute, as others have, to the noble Baroness, Lady Kidron. She has worked so hard on this issue and lots of other issues relating to this Bill and has exhausted herself more times than is right for someone of her still youthful age. I am very pleased that she is going off on holiday and will not be with us for a few days; I wish her well. I am joking slightly, but I mean it sincerely when I say that we have had a very high-quality debate. That it has gone on rather later than the Whips would have wanted is tough, because it has been great to hear and be part of. However, I will be brief.

It was such a good debate that I felt a tension, in that everybody wanted to get in and say what they wanted to say be sure they were on the record. That can sometimes be a disaster, because everyone repeats everything, but as the noble Baroness, Lady Harding, said, we know our roles, we know what to say and when to say it, and it has come together very nicely. Again, we should congratulate ourselves on that. However, we must be careful about something which we keep saying to each other but sometimes do not do. This is a Bill about systems, not content. The more that we get into the content issues, the more difficult it is to remember what the Bill can do and what the regulator will be able to do if we get the Bill to the right place. We must be sure about that.

I want to say just a few things about where we need to go with this. As most noble Lords have said, we need certainty: if we want to protect our children, we have to be able to identify them. We should not be in any doubt about that; there is no doubt that we must do it, whatever it takes. The noble Lord, Lord Allan, is right to say that we are in the midst of an emerging set of technologies, and there will be other things coming down the line. The Bill must keep open to that; it must not be technology-specific, but we must be certain of what this part is about, and it must drill down to that. I come back to the idea of proportionality: we want everybody who is 18 or under to be identifiable as such, and we want to be absolutely clear about that. I like the idea that this should be focused on the phones and other equipment we use; if we can get to that level, it will be a step forward, although I doubt whether we are there yet.