Online Safety Bill

Lord Clement-Jones Excerpts

3rd reading
Wednesday 6th September 2023 Lords Chamber

[Baroness Morgan of Cotes (Con)]

My Lords, I welcome Amendments 5 and 6, as well as the amendments that reflect the work done and comments made in earlier stages of this debate by the noble Baroness, Lady Kennedy. Of course, we are not quite there yet with this Bill, but we are well on the way as this is the Bill’s last formal stage in this Chamber before it goes back to the House of Commons.

Amendments 5 and 6 relate to the categorisation of platforms. I do not want to steal my noble friend’s thunder, but I echo the comments made about the engagement both from my noble friend the Minister and from the Secretary of State. I am delighted that the indications I have received are that they will accept the amendment to Schedule 11, which this House voted on just before the Recess; that is a significant and extremely welcome change.

When commentators outside talk about the work of a revising Chamber, I hope that this Bill will be used as a model for cross-party, non-partisan engagement in how we make a Bill as good as it possibly can be—particularly when it is as ground-breaking and novel as this one is. My noble friend the Minister said in a letter to all of us that this Bill had been strengthened in this Chamber, and I think that is absolutely right.

I also want to echo thanks to the Bill team, some of whom I was working with four years ago when we were talking about this Bill. They have stuck with the Bill through thick and thin. Also, I thank noble Lords across the House for their support for the amendments but also all of those outside this House who have committed such time, effort, support and expertise to making sure this Bill is as good as possible. I wish it well with its final stages. I think we all look forward to both Royal Assent and also the next big challenge, which is implementation.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his introduction today and also for his letter which set out the reasons and the very welcome amendments that he has tabled today. First, I must congratulate the noble Baroness, Lady Stowell, for her persistence in pushing amendments of this kind to Clause 45, which will considerably increase the transparency of the Secretary of State’s directions if they are to take place. They are extremely welcome as amendments to Clause 45.

Of course, there is always a “but”—by the way, I am delighted that the Minister took the advice of the House and clearly spent his summer reading through the Bill in great deal, or we would not have seen these amendments, I am sure—but I am just sorry that he did not take the opportunity also to address Clause 176 in terms of the threshold for powers to direct Ofcom in special circumstances, and of course the rather burdensome powers in relation to the Secretary of State’s guidance on Ofcom’s exercise of its functions under the Bill as a whole. No doubt we will see how that works out in practice and whether they are going to be used on a frequent basis.

My noble friend Lord Allan—and I must congratulate both him and the noble Lord, Lord Knight, for their addressing this very important issue—has set out five assurances that he is seeking from the Minister. I very much hope that the Minister can give those today, if possible.

Congratulations are also due to the noble Baroness, Lady Kennedy, for finding a real loophole in the offence, which has now been amended. We are all delighted to see that the point has been well taken.

Finally, on the point raised by the noble Lord, Lord Rooker, clearly it is up to the Minister to respond to the points made by the committee. All of us would have preferred to see a comprehensive scheme in the primary legislation, but we are where we are. We wanted to see action on apps; they have some circumscribing within the terms of the Bill. The terms of the Bill—as we have discussed—particularly with the taking out of “legal but harmful”, do not give a huge amount of leeway, so this is not perhaps as skeleton a provision as one might otherwise have thought. Those are my reflections on what the committee has said.

[Lord Knight of Weymouth (Lab)]

My Lords, I do not know how everyone has spent their summer, but this feels a bit like we have been working on a mammoth jigsaw puzzle and we are now putting in the final pieces. At times, through the course of this Bill, it has felt like doing a puzzle in the metaverse, where we have been trying to control an unreliable avatar that is actually assembling the jigsaw—but that would be an unfair description of the Minister. He has done really well in reflecting on what we have said, influencing his ministerial colleagues in a masterclass of managing upwards, and coming up with reasonable resolutions to previously intractable issues.

We are trusting that some of the outcome of that work will be attended to in the Commons, as the noble Baroness, Lady Morgan, has said, particularly the issues that she raised on risk, that the noble Baroness, Lady Kidron, raised on children’s safety by design, and that my noble friend Lady Merron raised on animal cruelty. We are delighted at where we think these issues have got to.

For today, I am pleased that the concerns of the noble Baroness, Lady Stowell, on Secretary of State powers, which we supported, have been addressed. I also associate myself with her comments on parliamentary scrutiny of the work of the regulator. Equally, we are delighted that the Minister has answered the concerns of my noble friend Lady Kennedy and that he has secured the legislative consent orders which he informed us of at the outset today. We would be grateful if the Minister could write to us answering the points of my noble friend Lord Rooker, which were well made by him and by the Delegated Powers Committee.

I am especially pleased to see that the issues which we raised at Report on remote access have been addressed. I feel smug, as I had to press quite hard for the Minister to leave the door open to come back at this stage on this. I am delighted that he is now walking through the door. Like the noble Lord, Lord Allan, I have just a few things that I would like clarification on—the proportional use of the powers, Ofcom taking into account user privacy, especially regarding live user data, and that the duration of the powers be time- limited.

Finally, I thank parliamentarians on all sides for an exemplary team effort. With so much seemingly falling apart around us, it is encouraging that, when we have common purpose, we can achieve a lot, as we have with this Bill.

--- Later in debate ---

Finally, I thank my noble friends Lady Gillian Merron and Lord Jim Knight, who have supported me throughout this period despite having significant responsibilities in other areas, have taken the strain when needed without complaint, and have indeed won improvements to the Bill that I perhaps would not even have thought of, let alone obtained. It has been a real team effort, a joy and a pleasure, and a most enjoyable experience.

[Lord Clement-Jones (LD)]

My Lords, I am probably going to echo quite a lot of what the noble Lord, Lord Stevenson, had to say, and I also pay tribute to him. This is an absolutely crucial piece of cross-party-supported legislation that many said was impossible. I believe that it is a landmark, and we should all take huge encouragement from seeing it pass through this House.

We started with the Green Paper, as the noble Lord, Lord Stevenson, said, back in 2017. Many of us have been living with this issue since then, and I hope that therefore the House will not mind if I make a few more extended remarks than usual on the Motion that the Bill do now pass. I will not disappoint the noble Lord, Lord Stevenson, because I will quote from the original Joint Committee report. As we said in the introduction to our Joint Committee report back in 2021:

“The Online Safety Bill is a key step forward for democratic societies to bring accountability and responsibility to the internet”.


We said that the most important thing was to

“hold online services responsible for the risks created by their design and operation”.

Our children and many others will be safer online as a result.

Across the House, this has been a huge joint venture. We made some very good progress, with the Minister and the Secretary of State demonstrating considerable flexibility. I thank them sincerely for that. We have tightened the Bill up, particularly regarding harms and risks, while, I believe, ensuring that we protect freedom of expression. Many Members of this House, including former Members of the Joint Committee, can take some pride in what has been achieved during the passage of the Bill through the House. I will add my thanks to some of them individually shortly.

The Minister mentioned a relatively short list; he was actually rather modest in mentioning some of the concessions that have been given while the Bill has passed through the House. For instance, the tightening up of the age-assurance measures and the adding of a schedule of age-assurance principles are really important additions to the Bill.

Risk assessment of user empowerment tools is very important, and I believe that the provisions about app stores and future regulation are an important aspect of the Bill. The freedom of expression definition has been inserted into the Bill. We have had new offences, such as facilitating self-harm and intimate image abuse, added during the passage of the Bill. I am delighted to say that, as the noble Lord, Lord Stevenson, said, we expect to hear further concessions in the Commons on both the functionality issue raised by the noble Baroness, Lady Kidron, and the category 1 aspects raised by the noble Baroness, Lady Morgan.

We very much welcome the amendments that have been tabled today, including the remote-viewing clarification. We wait to hear what the Government’s position will be—I am sure that discussions are ongoing since the House voted to include a provision to review whether animal cruelty offences online should be brought into scope, and I am delighted to see the noble Baroness, Lady Hayman, here—and whether they will preserve the amendment and perhaps also include wildlife-trafficking offences in order to ensure that we avoid ping-pong on that last issue.

We on these Benches have never been minded to spoil the ship for a halfpenny-worth of tar, but that is not to say that there are not areas where we would have liked to have seen a bit more progress. I do not think the Minister will be surprised to hear me say that there are one or two such areas, such as: risk assessment, where we believe that the terms of service should be subject to a mandatory risk assessment; the threshold of evidence required for illegality; the prosecution threshold as regards the encouragement of non-fatal self-harm; the intent requirement for cyber flashing; and verification status and visibility, and whether Ofcom can actually introduce requirements.

I heard what the Minister had to say about AI-generated pornography but, like the NSPCC, I am not convinced that we have adequately covered the features provided as part of a service in the metasphere with which users interact. Bots in the metaverse are demonstrating an extraordinary level of autonomy that could potentially be harmful and, it seems, may not be covered by the Bill. Time will tell, and we will see whether that is the case.

Then of course there is the lack of legislative teeth for the review of research access and no requirement for guidance afterwards. I very much hope that will happen, despite there being no obligation at the end of the day.

I have mentioned Clauses 176 and 177. We wait to see how those will pan out. Then of course there is the issue on which these Benches have spoken virtually alone: the question of news publisher definition and exemption.

I very much welcome the last piece of assurance that the Minister gave in terms of Ofcom’s powers under Clause 122. Even as late as last night we heard news reports and current affairs programmes discussing the issue, and I genuinely believe that what the Minister said will be reassuring. Certainly I took comfort from what he had to say, and I thank him for agreeing to say it at a pretty late stage in the proceedings.

I think we all recognise that in many ways the Bill is just the beginning. There will be much further work to be done. We need to come back on misinformation when the committee set up under Clause 153 has reported. I hope that in particular it will look at issues such as provenance solutions such as those provided by the Content Authenticity Initiative. Fundamental changes will be needed to our electoral law in order to combat misinformation in the course of our elections, because we have had several Select Committees say that, and I believe the misinformation advisory committee will come to the same conclusion.

It is also clear that Parliament itself needs to decide how best to scrutinise the Bill in both its operation and its effectiveness. As we in the Joint Committee sought to suggest, there could be a Joint Committee of both Houses to carry on that scrutiny work, but I very much hope that will not be the case. I hope the SIT Select Committee in the Commons will pick up the cudgel and that the committee of the noble Baroness, Lady Stowell, the Communications and Digital Select Committee, will do likewise in the House of Lords.