Online Safety Bill

Lord McNally Excerpts

Committee stage
Thursday 27th April 2023 Lords Chamber

[Lord McNally (LD)]

My Lords, I have long been on record as being for radical reform of the House of Lords, but I do not think there are many Chambers in the world that could have had such an interesting debate on such a key subject—certainly not the House of Commons, sadly. Without falling into the old trap of saying what a wonderful lot we all are, it is important that, in such an important Bill, covering so many important areas of civil liberties and national security, there should be an opportunity, before we get to voting, to have this kind of debate and get some of the issues into the public domain.

I am on the same side as the noble Baroness, Lady Fox, on knowledge of the technology—looking back to 20 years ago, when I was on the committee that worked on the communications Bill which set up Ofcom, I see that we were genuinely innocents abroad. We deliberately decided not to try regulating the internet, because we did not know what it was going to do. I do not think that we can have that excuse today.

Perhaps an even more frightening background is that, for three and a half years, during the coalition Government, I was Minister for Digital Protection—a less equipped Minister to protect your digital I cannot imagine. However, I remember being taken to some place over the river to have a look at our capacities in this area. Having seen some of the things that were being done, I rather timidly asked the expert who was showing me round, “Aren’t there civil liberty issues in what you’re doing?” He said, “Oh no, sir. Tesco know far more about you than we do”.

There is this element about what is secret. The noble Baroness, Lady Fox, in her last contribution, said that children look with contempt at some of the safeguards and blockages that keep them away from things. I do not think anybody is deluding themselves that there is some silver bullet. As always, Parliament must do its best to address real national concerns and real problems in the best way that we see at this time. There is a degree of cross-party and Cross-Bench unity, in that there are real and present dangers in how these technologies are being used, and real and present abuses of a quite horrific kind. The noble Baroness, Lady Kidron, is right. This technology has given a quantum leap to the damage that the abuser and the pornographer can do to our society, in the same way that it has given a quantum leap to those who want to undermine the truth and fairness of our election system. There are real problems that must be addressed.

Although it has not been present in this debate, it is no help to polarise the argument as being between the state wanting to accrue more and more powers and brave defenders of civil liberties. As somebody who has practised some of these dark arts myself, I advise those who are organising letters to ensure that those sending them do not leave in the paragraph that says, “Here you may want to include some personal comments”. It waters down the credibility of this as some independent exercising of a democratic right.

I make a plea, as someone on the edges of the debate who at times had some direct responsibilities, to use what the Bill has thrown up to address whether it is now in the right shape—I hope the Minister hears it. The Government should not be ashamed to take it away and think a bit. It may be that we can add some of the protections that we quite often do, such as allowing certain interventions after a judge or senior police officer or others have been involved. That may already be in other parts of the Bill. However, it would be wrong to allow the Bill to polarise this, given that there was no one who spoke this morning who is not trying to deal with very real difficulties, problems and challenges, within the framework of a democratic society, in a way that protects our freedoms but also protects us from real and present dangers.

[Lord Kamall (Con)]

My Lords, this is the first time that I have spoken on the Bill in Committee. I know noble Lords are keen to move on and get through the groups as quickly as possible, but I hope they will forgive me if I say that I will speak only about twice on the Bill, and this is one of the groups that I want to speak to. I will try not to make your Lordships impatient.

I should tell the Committee a little about where I am coming from. I was very geeky as a kid. I learned to program and code. I did engineering at university and coded there. My master’s degree in the late 1980s was about technology and policy, so I have been interested in technology policy since then, having followed it through in my professional life. In 1996, I wrote a book on EU telecoms—it sold so well that no one has ever heard of it. One thing I said in that book, which though not an original thought is pertinent today, is that the regulation will always be behind the technology. We will always play catch-up, and we must be concerned about that.

Interestingly, when you look at studies of technology adoption—pioneers, early adopters and then the rest of the population—quite often you see that the adult industry is at the leading edge, such as with cable TV, satellite TV, video cassettes, online conferencing, et cetera. I assure your Lordships that I have not done too much primary research into this, but it is an issue that we ought to be aware of.

I will not speak often in this debate, because there are many issues that I do not want to disagree on. For example, I have already had a conversation with the noble Baroness, Lady Kidron, and we all agree that we need to protect children. We also know that we need to protect vulnerable adults; there is no disagreement on that. However, in these discussions there will be inevitable trade-offs between security and safety and freedom. It is right to have these conversations to ensure that we get the balance right, with the wisdom of noble Lords. Sacrifices will be made on either side of the debate, and we should be very careful as we navigate this.

I am worried about some of the consequences for freedom of expression. When I was head of a research think tank, one of the phenomena that I became interested in was that of unintended consequences. Well-meaning laws and measures have often led to unintended consequences. Some people call it a law of unintended consequences, and some call it a principle, and we should be careful about this. The other issue is subjectivity of harms. Given that we have taken “legal but harmful” out and there are amendments to the Bill to tackle harms, there will be a debate on the subjectivity of harms.

One reason I wanted to speak on this group is that some of the amendments tabled by noble Lords—too many to mention—deal with technology notices and ensuring that we are consistent between the offline and online worlds, particularly regarding the Regulation of Investigatory Powers Act. I welcome and support those amendments.

We also have to be aware that people will find a way around it, as the noble Baroness, Lady Fox, said. When I was looking at terrorism and technology, one of the issues that people raised with me was not to forget that one way around it was to create an email account and store stuff in a draft folder. You could then share the username and password with others who could then access that data, those pictures or those instructions in a draft folder. The noble Lord, Lord Allan, has gone some way to addressing that issue.

The other issue that we have to be clear about is how the tech sector can do more. It was interesting when my noble friend Lady Stowell organised a meeting with Meta, which was challenged particularly on having access to information and pictures from coroners. It was very interesting when Meta told us what it could access: it does not know what is in the messages, but there are things that it can access, or advise people to access, on the user’s phone or at the other end. I am not sure whether the noble Baroness, Lady Kidron, has had the conversation with Meta, but it would be helpful and important to find some common ground there, and to probe and push Meta and others to make sure that they share that information more quickly, so we do not have to wait five years to get it via the coroner or whatever. We ought to push that as much as possible.

I want to talk in particular about unintended consequences, particularly around end-to-end encryption. Even if you do not believe the big businesses and think that they are crying wolf when they say that they will quit the UK—although I believe that there is a threat of that, particularly when we continually want the UK to be a global hub for technology and innovation and so cannot afford for companies such as Meta, Signal and others to leave—you should listen to the journalists who are working with people, quite often dissidents, in many countries, and rely on encrypted communications to communicate with them.

The other risk we should be aware of is that it is very difficult to keep technology to a few people. In my academic career, I also looked at technology transfer, both intentional and unintentional. We should look at the intelligence services and some of the innovations that happened: for example, when Concorde was designed, it was not very long after that the Soviets got their hands on that equipment. Just as there used to be a chap called Bob in the exchange who could share information, there is always a weak spot in chains: the humans. Lots of humans have a price and can be bought, or they can be threatened, and things can be shared. The unintended consequence I am worried about is that this technology will get into the hands of totalitarian regimes. At the same time, it means people over here who are really trying desperately to help dissidents and others speak up for freedom in other countries will be unable to support them. We should be very careful and think about unintended consequences. For that reason, I support this group of amendments.

I really am looking forward to the responses from the Minister. I know that the noble Lord, Lord McNally, said that he was a Minister for three years on data protection; I was a Minister in this department for one month. I was so pleased that I had my dream job, as Minister for Civil Society and Heritage, and so proud of my party and this country because we had elected the first Asian Prime Minister; then, six days later, I got sacked. So, as they say, be careful what you wish for.

In this particular case, I am grateful to the noble Lords who have spoken up in this debate. I do not want to repeat any other points but just wanted to add that. I will not speak often, but I want to say that it is really critical that, when we look at this trade-off between security, safety and freedom, we get it right. One way of doing that is to make sure that, on technology notices and RIPA, we are consistent between the online and offline worlds.