Online Safety Bill

Viscount Colville of Culross Excerpts

Committee stage
Tuesday 23rd May 2023 Lords Chamber

I also hope that the Government support Parliament in enhancing its oversight of the regulators in which so much power is being vested. However expert, independent and professional they may be—I note that my noble friend Lord Grade is not in the Chamber today, as I believe he is overseas this week, but no one respects and admires my noble friend more than I do, and I am not concerned in any way about the expertise and professionalism of Ofcom—none the less we are in a situation where they are being vested with a huge amount of power and we need to make sure that the oversight of them is right. Even if I do not support that which is specifically put forward by the noble Lord, Lord Stevenson, this is an area where we need to move forward but we need the Government to support us in doing so if we are going to make it happen. I look forward to what my noble friend has to say in response to this group.

[Viscount Colville of Culross (CB)]

My Lords, I have put my name to Amendments 113, 114, 117, 118, 120 and 257. As the noble Baroness, Lady Stowell, has said, it is crucial that Ofcom both has and is seen to have complete independence from political interference when exercising its duty as a regulator.

On Ofcom’s website there is an article titled “Why Independence Matters in Regulating TV and Radio”—for the purposes of the Bill, I suggest that we add “Online”. It states:

“We investigate following our published procedures which contain clear, transparent and fair processes. It’s vital that our decisions are always reached independently and impartially”.


I am sure there are few Members of the Committee who would disagree with that statement. That sentiment is supported by a recent UNESCO conference to create global guidance for online safety regulation, whose concluding statement said that

“an independent authority is better placed to act impartially in the public interest and to avoid undue influence from political or industry interests”.

As the noble Baroness, Lady Stowell, has said, that is what successive Governments have striven to do with Ofcom’s regulation of broadcast and radio. Now the Government and Parliament must succeed in doing the same by setting up this Bill to ensure absolute independence for Ofcom in regulating the digital space.

The codes of practice drawn up by Ofcom will be central to the guidance for the parameters set out by the media regulator for the tech companies, so it is essential that the regulator, when setting them up, can act independently from political interference. In my view and that of many local Lords, Clause 39 does not provide that level of independence from political interference. No impartial observer can think that the clause as drafted allows Ofcom the independence that it needs to shape the limits of the tech platforms’ content. In my view, this is a danger to freedom of expression in our country by giving permission for the Secretary of State to interfere continually and persistently in Ofcom’s work.

Amendments 114 and 115 would ensure a badly needed reinforcement of the regulator’s independence. I see why the Minister would want a Secretary of State to have the right to direct the regulator, but I ask him to bear in mind that it will not always be a Minister he supports who is doing the directing. In those circumstances, surely he would prefer a Secretary of State to observe or have regard to the views on the draft codes of practice. Likewise, the endless ping-pong envisaged by Clause 39(7) and (9) allows huge political pressure and interference to be placed on the regulator. This would not be allowed in broadcast regulation, so why is it allowed for online regulation, which is already the dominant medium and can get only more dominant and more important?

Amendment 114 is crucial. Clause 39(1)(a), allowing the Minister’s direction to cover public policy, covers almost everything and is impossibly broad and vague. If the Government want an independent regulator, can the Minister explain how this power would facilitate that goal? I am unsure of how the Government will approach this issue, but I am told that they want to recognise the concerns about an overmighty Secretary of State by bringing forward their own amendment, limiting the powers of direction to specific policy areas. Can the Minister confirm that he is looking at using the same areas as in the Communications Act 2003, which are

“national security … relations with the government of a country … compliance with international obligations of the United Kingdom … the safety of the public or of public health”?

I worry about any government amendment which might go further and cover economic policy and burden to business. I understand that the Government would want to respond to the concerns that this Bill might create a burden on business and therefore could direct Ofcom to ease regulations in these areas. However, if this area is to be included, surely it will create a lobbyists’ charter. We all know how effective the big tech companies have been at lobbying the Government and slowing down the process of shaping this Bill. The Minister has only to talk to some of the Members who have helped to shape the Bill to know the determination and influence of those lobbying companies.

To allow the DCMS Secretary of State to direct Ofcom continuously to modify the codes of practice until they are no longer a burden to business would dramatically dilute the power and independence of the UK’s world-respected media regulator. Surely this is not what the people of Britain would want; the Minister should not want it either. The words “vague” and “broad” are used repeatedly by freedom of speech campaigners when looking at the powers of political interference in the Bill.

When the draft Bill came out, I was appalled by the extraordinary powers that it gave the Secretary of State to modify the content covered by “legal but harmful”, and I am grateful to the Government for responding to the Joint Committee and many other people’s concerns about this potentially authoritarian power. Clause 39 is not in the same league, but for all of us who want to ensure that Ministers do not have the power to interfere in the independence of Ofcom, I ask the Minister to accept the well-thought-through solutions represented by these amendments and supported by all Benches. I also support the request made by the noble Baroness, Lady Stowell, that Parliament should be involved in the oversight of Ofcom. I ask the Minister to respond to these widely supported amendments, either by accepting them or by tabling amendments of his own which guarantee the independence of the regulator.