Online Safety Act: Implementation

Graham Leadbitter Excerpts

Wednesday 26th February 2025 Westminster Hall

[Sir Jeremy Wright]

The hon. Gentleman makes an interesting point. We have to balance two things, though. We want consistency, as he suggests, but we also want platforms to respond to the circumstances of their own service, and to push the boundaries of what they can achieve by way of safety measures. As I said, they are in a better position to do so than legislators or regulators are to instruct them. The Act was always intended to put the onus on the platforms to take responsibility for their own safety measures. Given the variety of actors and different services in this space, we are probably not going to get a uniform approach, nor should we want one. The hon. Gentleman is right to say that the regulator needs to ensure that its expectations of everyone are high. There is a further risk not that we might just fix the bar at status quo but that, because of the opportunity that platforms have to innovate, some might go backwards on new safety measures that they are already implementing because they are not recommended or encouraged by Ofcom’s code of practice. That cannot be what we want to happen.

Those are two areas where I believe Ofcom’s interpretation of the Act is wrong and retreats in significant ways from Parliament’s intention to give the regulator power to act to enhance children’s online safety. I also believe it matters that it is wrong. The next question is what should be done about it. I accept that sometimes, as legislators, we have no choice but to pass framework legislation, with much of the detail on implementation to come later. That may be because the subject is incredibly complex, or because the subject is fast-moving. In the case of online safety, it is both.

Framework legislation raises serious questions about how Parliament ensures its intentions are followed through in all the subsequent work on implementation. What do we do if we have empowered regulators to act but their actions do not fulfil the expectations that we set out in legislation?

[Graham Leadbitter (Moray West, Nairn and Strathspey) (SNP)]

Does the right hon. and learned Gentleman agree that this is not only about Ofcom but regulators more widely, and their ability to be agile? Does he believe them to be more risk-averse in areas such as digital technology, relying on traditional consultation time periods, when the technology is moving way faster?

[Sir Jeremy Wright]

The hon. Gentleman identifies a real risk in this space: we are always playing catch-up, and so are the regulators. That is why we have tried—perhaps not entirely successfully—to design legislation that gives the regulators the capacity to move faster, but we have to ask them to do so and they have to take responsibility for that. I am raising these points because I am concerned that this particular regulator in this particular set of circumstances is not being as fleet of foot as it could be, but the hon. Gentleman is right that this is a concern across the regulatory piece. I would also say that regulators are not the only actor. We might expect the Government to pick up this issue and ensure that regulators do what Parliament expects, but in this area the signs are not encouraging.

As some Members in Westminster Hall this morning know because they were present during the debates on it, elsewhere in the Online Safety Act there is provision to bring forward secondary legislation to determine how online services are categorised, with category 1 services being subject to additional duties and expectations. That process was discussed extensively during the passage of the Act, and an amendment was made to it in the other place to ensure that smaller platforms with high incidences of harmful content could be included in category 1, along with larger platforms. That is an important change, because some of the harm that we are most concerned about may appear on smaller specialist platforms, or may go there to hide from the regulation of larger platforms. The previous Government accepted that amendment in this House, and the current Government actively supported it in opposition.

I am afraid, however, that Ofcom has now advised the Government to disregard that change, and the Government accepted that advice and brought a statutory instrument to Committee on 4 February that blatantly contravenes the will of Parliament and the content of primary legislation. It was a clear test case of the Government’s willingness to defend the ambition of the Online Safety Act, and I am afraid they showed no willingness to do so.

If we cannot rely on the Government to protect the extent of the Act—perhaps we should not, because regulatory independence from the Executive is important—who should do it? I am sure the Minister will say in due course that it falls within the remit of the Science, Innovation and Technology Committee. I mean no disrespect to that Committee, but it has a lot on its plate already and supervision of the fast-moving world of online safety regulation is a big job in itself. It is not, by the way, the only such job that needs doing. We have passed, or are in the process of passing, several other pieces of similar framework legislation in this area, including the Digital Markets, Competition and Consumers Act 2024, the Data (Use and Access) Bill and the Media Act 2024, all of which focus on regulators’ power to act and on the Secretary of State’s power to direct them. Parliament should have the means to oversee how that legislation is being implemented too.

Many of these areas overlap, of course, as regulators have recognised. They established the Digital Regulation Co-operation Forum to deal with the existing need to collaborate, which of course is only likely to grow with the pervasive development of artificial intelligence. Surely we should think about parliamentary oversight along the same lines. That is why I am not the first, nor the only, parliamentarian to be in favour of a new parliamentary Committee—preferably a Joint Committee, so that the expertise of many in the other place can be utilised—to scrutinise digital legislation. The Government have set their face against that idea so far, but I hope they will reconsider.

My final point is that there is urgency. The children’s safety codes will be finalised within weeks, and will set the tone for how ambitious and innovative—or otherwise—online services will be in keeping our children safe online. We should want the highest possible ambition, not a reinforcement of the status quo. Ofcom will say, and has said, that it can always do more in future iterations of the codes, but realistically the first version will stand for years before it is revised, and there will be many missed opportunities to make a child’s online world safer in that time. It is even less likely that new primary legislation will come along to plug any gaps anytime soon.

As the responsible Secretary of State, I signed off the online harms White Paper in 2019. Here we are in 2025, and the Online Safety Act is still not yet fully in force. We must do the most we can with the legislation we have, and I fear that we are not.

Given the efforts that were made all across the House and well beyond it to deliver the best possible set of legislative powers in this vital area, timidity and lack of ambition on the part of Ministers or regulators—leading to a pulling back from the borders of this Act—is not just a challenge to parliamentary sovereignty but, much more importantly, a dereliction of duty to the vulnerable members of our society, whose online safety is our collective responsibility. There is still time to be braver and ensure that the Online Safety Act fulfils its potential. That is what Ofcom and the Government need to do.