Online Safety Bill

Lord Hope of Craighead Excerpts

Report stage
Monday 10th July 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I speak to Amendments 286 and 294, which are the last two amendments in this group, and I will explain what they are about. They are in the name of the noble Baroness, Lady Fraser of Craigmaddie, who unfortunately cannot be here this evening, to which I and the noble Lord, Lord Stevenson of Balmacara, have added our names, as has the Minister, for which we are very grateful. They serve a simple purpose: they seek to insert a definition of the phrase “freedom of expression” into the list of definitions in Clause 211 and add it to the index of defined expressions in Clause 212.

They follow an amendment which I proposed in Committee. My amendment at that stage was to insert the definition into Clause 18, where the phrase

“freedom of expression within the law”

appears. It was prompted by a point made by the Constitution Committee in its report on the Bill, which said that the House might wish to consider defining that expression in the interests of legal certainty.

The same point arose when the House was considering the then Higher Education (Freedom of Speech) Bill. Following a similar amendment by me, a government amendment on Report, to achieve the same result, was agreed to that Bill. My amendment in Committee on this Bill adopted the same wording as the government amendment to that Bill. In his response to what I said in Committee, the Minister pointed out, quite correctly, that the Higher Education (Freedom of Speech) Act and this Bill serve quite different purposes, but he did say that the Bill team—and he himself—would consider our amendment closely between then and Report.

What has happened since is the amendment we are now proposing, which has undergone some changes since Committee. They are the product of some very helpful discussions with the Bill team. The most important is that the definition placed in Clause 211 extends to the use of the expression “freedom of expression” wherever it appears in the Bill, which is obviously a sensible change. It also now includes the word “receive” as well as the word “impart”, so that it extends to both kinds of communication that are within the scope of the Bill. The words “including in electronic form”, which are in my amendment, have been removed as unnecessary, as the Bill is concerned with communications in electronic form only.

There are also two provisions in the Bill which refer to freedom of expression to which, as the definition now makes clear, this definition is not to apply. They are in Clauses 36(6)(f) and 69(2)(d). This is because the context in which the expression is used there is quite different. They require Ofcom to consult people with expertise as to this right when preparing codes of conduct. They are not dealing with the duties of providers, which is what the definition aims to do.

As the discussion in Committee showed, and as the noble Baroness, Lady Fox, demonstrated again this evening, we tend to use the phrases “freedom of speech” and “freedom of expression” interchangeably, perhaps without very much thought as to what they really mean and how they relate to other aspects of the idea. That is why legal certainty matters when they appear in legislation. The interests of legal certainty will be met if this definition finds a place in the Bill, and it makes it clear that the reference is to the expression referred to in Article 10(1) of the convention as it has effect for the purposes of the Human Rights Act. That is as generous and comprehensive a definition as one would wish to have for the purposes of the Bill.

I am grateful to the Minister for his support and to the Bill team for their help. When the times come, either the noble Baroness, Lady Fraser, or I will move the amendment; it comes at the very end of the Bill so it will be at the last moment of the last day, when we are finishing Report. I look forward to that stage, as I am sure the Minister does himself.

[Lord Allan of Hallam (LD)]

My Lords, I want to respond to some of the comments made by the noble Baroness, Lady Fox, and the noble Lord, Lord Moylan. I have been looking forward to this debate equally, as it touches on some crucial issues. One of the mistakes of the Bill that I place on the Government is that it was sold as somehow a balancing Bill. It is not; it is a speech-limiting Bill, as all Bills of this kind are. Its primary purpose is to prevent people in the United Kingdom encountering certain types of content.

If you support the Bill, it is because you believe that those restrictions are necessary and proportionate in the context of Article 8. Others will disagree. We cannot pretend that it is boosting free speech. The United States got it right in its first amendment. If you want to maximise speech, you prohibit your parliament regulating on speech: “Congress shall make no law that limits speech”. As soon as you start regulating, you tend towards limitations; the question in the UK and European contexts is whether those limitations are justified and justifiable.