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Lords Chamber

Volume 831: debated on Monday 17 July 2023

House of Lords

Monday 17 July 2023

Prayers—read by the Lord Bishop of Bristol.

Oaths and Affirmations

Lord Magan of Castletown took the oath.

Health: Cardiac Arrest


Asked by

To ask His Majesty’s Government what steps they are taking to improve outcomes in cases of sudden cardiac arrest.

My Lords, the treatment and prevention of cardiovascular disease are a priority for the Government. We want people to have the best chance of survival from cardiac arrest and rapid intervention is critical to improving outcomes. This is why the Government have agreed to provide funding of £1 million to design a grant scheme for the expansion of AEDs that increases the number of public access defibrillators.

My Lords, I declare that my son is a consultant cardiologist. Around 80,000 cardiac arrests happen each year out of hospital, mostly in the home. Learning from countries such as Norway and Denmark—where survival rates are more than double ours, which is below 10%—will the Government extend cardiac first aid training to primary schools, to part of the driver’s licence, to all public sector workers and to those attending jobcentres? Will defibrillators be carried on every first response police and fire vehicle, with the NHS defibrillator purchasing scheme and registration extended to public places, to greatly increase 24-hour bystander public access to a working defibrillator via 999, with those who attempt CPR signposted to support afterwards?

My Lords, I believe this is the noble Baroness’s 1,000th contribution to your Lordships’ House, so I congratulate her—that is some feat. She asked a very good, topical question. All state-funded schools are required to teach first aid as part of the mandatory relationships, sex and health education curriculum. This involves children aged over 12 being taught CPR and how to use a defibrillator.

To improve survival rates for out-of-hospital cardiac arrest cases, the NHS long-term plan sets out that a national network of community first responders and automated external defibrillators will help save up to 4,000 lives each year by 2028. NHS England are working with St John Ambulance to increase the awareness of the importance of CPR in England. Learning from other countries, as the noble Baroness said, is exactly right and it is very important that the NHS does learn from other countries to continually improve. With regard to first responder vehicles, including in the police and fire service, carrying defibrillators, it is a very good question and I will take this back to my colleagues in the Home Office.

My Lords, I am very glad that the Minister said that this was a priority for the Government, but can I ask him to look at the UK out-of-hospital cardiac arrest outcomes project? The current 2023 figures show that the survival rate after 30 days is 11% in London but 5.3% in the West Midlands. Will he call in the integrated care systems in the West Midlands to see what they are doing to improve? That is a very big discrepancy between those two rates.

The noble Lord is very knowledgeable about the West Midlands. I will certainly take that specific point back to the department.

My Lords, building on the comments made by the noble Baroness, Lady Finlay, about the importance of defibrillators, the Minister may be aware of a database called the Circuit, which has been set up by the British Heart Foundation and its partners so that people can register the defibrillators they have on their premises. The project is far from complete. What might the Government do to encourage registration of defibrillators with that service and encourage the use of the associated consumer service,

I am most grateful to the noble Lord; as always, he asks searching questions on such matters. I have taken the time and trouble to look into the exact app. As for what the Government can do, he has already mentioned the British Heart Foundation, and we are working closely with it. Noble Lords can download the defib app to locate the nearest defib registration on the Circuit; the defibrillators will appear on it. I encourage all organisations—sports clubs, community churches, and so on and so forth—to register to be on the app. That is key. Having the defib is one thing; having it on that app is another.

My Lords, following the successful campaign to ensure all state-funded schools will receive defibrillators—for which many thanks to the Government—will my noble friend the Minister ensure that all public and private sector sport and recreation facilities are also mandated to have defibrillators on site, with personnel trained to use them?

My noble friend raises a very good point. He is exactly right to point out the DfE’s programme, which is backed by £19 million of government support. In June 2021, the then Sports Minister welcomed the Premier League’s announcement of its new defibrillator fund, which will fund AEDs for thousands of football clubs and facilities across the country. Each grant recipient will receive all the training and support that the noble Lord refers to. It is not just about football; cricket clubs and other sports clubs throughout the nation should do this.

My Lords, many survivors of sudden cardiac arrest—unlike survivors of strokes or heart attacks—receive little or no follow-up care, although they may suffer from emotional, psychological and memory difficulties. Will the Minister look at establishing a formal care pathway for cardiac arrest survivors and ensuring that an individualised post-cardiac arrest rehabilitation plan is available across all integrated care boards to everyone who needs it, including families and people who give CPR, many of whom suffer from anxiety, depression and post-traumatic stress?

The noble Lord is exactly right: surviving a heart attack is one thing, but recovery, both of the victim and their family, is another. I will take that point back to the department.

My Lords, it is estimated that 999 call handlers and ambulance services do not have access to data on the whereabouts of tens of thousands of defibrillators, meaning that emergency services cannot direct bystanders to them in the event of a cardiac arrest while they wait for ambulance support. We know that a victim’s chance of survival falls by about 10% with every minute that defibrillation is delayed. What steps are the Government taking to address this, particularly targeting areas of poor health and high OHCA incidence so that the chances of survival in these communities can be significantly increased?

On the noble Baroness’s latter point, NHS England has partnered with St John Ambulance to co-ordinate skills development to significantly increase the use of AEDs by individuals in community settings such as those she has just outlined. The ambulance service has access to the location of defibrillators, but, as I said to the noble Lord earlier, it is important that, if you have a defibrillator, you register it so it ends up on the system.

My Lords, defibrillators are extremely important in helping people who have out-of-hospital cardiac arrests, but research shows that there is significant variation in the treatment that patients receive, depending on where they are from, after a cardiac arrest. What can the Government do to ensure that evidence-based guidance for treatment is embedded in practice consistently across the NHS?

That is a very good point. Treatment does vary from hospital to hospital, which is why it is very important that the NHS establishes best practice so that hospitals which are not performing to a high standard can learn from the best within the NHS.

My Lords, would it be a good idea, if we are dealing with things which have to be used by the general public, for us to have a universal signing system to tell you where you can find something? For instance, something red or yellow could flash in public to say where a defibrillator is—because I managed to walk past one in my office without noticing it for a couple of years.

If the noble Lord refers to the House of Lords or the House of Commons, he raises a very good point. However, in my experience, looking at defibrillators out and about in the community, they are very well signposted—there are signs that clearly indicate them to the public. But it does vary; there is no standard, as indeed communities vary throughout the country. If the noble Lord wants to share with me his case of a specific defibrillator, we can certainly take that up with the House authorities.

My Lords, this important question is part of a wider issue regarding rapid intervention across a range of health emergencies. Stroke victims, for example, who are treated quickly have a much better recovery rate and suffer much less harm, and therefore place much less subsequent pressure on health and social services. What are the Government doing to ensure that rapid intervention is a key element in the health strategy across this country? Our outcomes on a range of medical emergencies are much worse in this country than in many others.

The NHS is doing all that it can to raise awareness. The noble Lord talks about stroke victims, and awareness and looking for the signs of somebody who is suffering from a stroke are far better than they were. However, the noble Lord is right and, as I said in an earlier answer, we can always learn from other countries’ health services. On heart attacks, the survival rate of those who receive CPR is twice that of those who do not receive it.

My Lords, may I ask the Minister to examine one of the causes of cardiovascular disease: the manufacturing of food? Manufacturers add excessive salt, sugar and fat, which then trigger neurological responses leading to cravings for food. This is highly profitable for the industry and leads to very high executive bonuses, but it is disastrous for people. Can the Minister say when the Government will examine the role of food manufacturers in creating cardiovascular disease?

It is well documented that a healthy lifestyle and diet are critical for a long and healthy life. A balanced and healthy lifestyle includes exercise, reduced sugar and fats. That is not the unique responsibility of food manufacturers; it is incumbent on us all to have a healthy, balanced diet.

Electronic Travel Authorisation


Asked by

To ask His Majesty’s Government what assessment they have made of the merits of their proposed Electronic Travel Authorisation as compared with the proposed European Travel Information and Authorisation Service.

The United Kingdom’s electronic travel authorisation scheme, or ETA, and the EU’s European travel information and authorisation system, ETIAS, will require travellers to obtain authorisation prior to travel. In both cases, travellers must complete an online application form and receive electronic permission to travel, which is verified by carriers before boarding. The ETA scheme will collect biometrics upstream, away from the United Kingdom border. This will enable us to increase automation of passenger clearance at the UK border.

My Lords, this new system will also require all passengers transiting through UK airports to have an ETA. The EU equivalent system has no such requirement. This means that more than 20% of passengers—and that was 20 million people in 2019—who go through airports will need to pay £10 a head for an ETA, despite the fact that they will not even leave the airport. Do the Government really believe that a family of four is going to choose to pay £40 to transit through a UK airport when it can transit through an EU airport for free?

It is the intention of the policy to apply to those transferring in British airports. This makes Britain a more secure country.

My Lords, following the regret Motion debate on 23 May and subsequent amendments in Committee and at Report on the Illegal Migration Bill in respect of ETAs, what further discussions has the Minister had with his ministerial colleagues in the Home Office regarding further exemptions to ETA to ensure that the tourism industry in Northern Ireland is not further undermined as a result of such requirements?

I thank the noble Baroness for her question, and I can reassure her that work continues on the guidance discussed during the previous debate. The Government remain committed to the Good Friday agreement and ensuring there is no hard border between Northern Ireland and Ireland. In line with our commitments under strand 2, the Government are committed to working with Tourism Ireland and Tourism Northern Ireland to ensure that the ETA requirement is communicated effectively through targeting messages and a variety of channels. That would include Tourism Ireland, as a crucial body established under the north/south provisions.

My Lords, I draw attention to my entry in the register of interests as the chairman of Airlines UK. Does my noble friend understand that putting Britain at a commercial disadvantage in such an international industry will do us no good whatsoever in the long term? Perhaps the Government should look at how our airlines are able to compete internationally with others.

I thank my noble friend for that question. I must say, however, that the cost of an electronic travel application in the UK is only £10. It will be €7 for an ETIAS, whereas among our comparators overseas—in the US, for example—the equivalent ESTA costs $21, which is £16 in today’s prices. In Australia, it is 20 Australian dollars and in New Zealand, it is 23 New Zealand dollars if completed online and 17 dollars if completed on a mobile app. By any measure, the price to be charged for a UK ETA is very reasonable.

My Lords, the Minister has been extremely well briefed, to missing the point. Is he not aware that the tourism agencies in both the Republic of Ireland and Northern Ireland have expressed grave concern at the catastrophic impact this will have on tourism across the island of Ireland, which is very important to both? Can we have some sense of action this day from him, rather than a few more meaningless statistics?

I am afraid that I do not agree with the noble Lord that the views of the tourist authorities across the island of Ireland have not been taken into account. Engagement has been deep and thorough, and it is for that reason that an agreement has been made that particular circumstances will apply in Northern Ireland. I simply do not agree with him that the impact of the introduction of ETAs will devastate the Irish tourism industry.

My Lords, will these rules apply to those with full residency in the European Union—to British nationals entering the European Union? I declare that I am a full resident in Portugal. Are the Government aware that EU citizens can avail themselves of the opportunity to go through the UK’s electronic gate immigration system? However, as a result of Article 50 of the Lisbon treaty, those with residency, when entering the EU, are consigned to third-country status. Would the Minister consider engaging with his EU ministerial colleagues—it has been suggested by EU immigration authorities that they would welcome this—to have this anomaly corrected?

I thank the noble Viscount for that question. He makes an important point. As I have said before in this House, we endeavour to operate our e-gates policy on the most welcoming basis we can, and this includes allowing EEA nationals to use our e-gates. It is perhaps unfortunate that the same privilege has not been extended reciprocally so far, but this is something officials continue to work on. I reassure the noble Viscount that my understanding is that the Schengen border area negotiations resulted in an agreement that there would be exemptions for residents and family members of EU citizens from ETIAS, although it is a little unclear what those are and how they will be affected at this stage.

My Lords, is it not the case that, whatever systems are used at the border, staff are needed to oversee the border and the e-gates? Can the Minister comment on the recent Daily Mail article, which said that the Defence Secretary

“has refused the Home Secretary's request for 750 troops to be deployed to plug gaps in the UK’s Border Force—claiming that Ms Braverman should have made contingency plans for the shortages, rather than expecting him to act as a last-minute stop-gap”?

The Home Secretary has said that, without those 750 members of the Armed Forces

“to help man immigration posts to cover for striking or absent Border Force officers, then British travellers could face long queues”.

What does the Minister say to that?

I thank the noble Lord for that question. It is quite a long way from comparing ETIAS and ETAs, of course, but the short answer is that the figures that appeared in the Daily Mail article relate to the military aid to civilian authority application, which was made in order to make up for shortfalls in Border Force staff during strike action. I am glad to confirm for the House that there is no strike action planned during the peak of the summer season. I can also confirm that the Border Force strikes at Christmastime saw the effective deployment of soldiers; I am sure that Members of this House are grateful to them for their excellent work on that occasion.

I can assure the noble Lord that we have trained and are ready to deal with situations relating to a shortage of Border Force staff. We have recruited more staff, cancelled some leave and trained staff to address more front-line roles, so the noble Lord should be satisfied with that.

My Lords, I voted for Brexit because I thought that it would result in making our country more competitive and reduce the burdens on people. Is this not a classic example of going in the opposite direction, and should we not abandon it?

I agree entirely with my noble friend as to the sentiment behind the decision that we as a nation took. I can reassure him that the ETA system is as unbureaucratic as it can be and is not linked in the same way that ETIAS is to a burdensome requirement for biometric and fingerprint recognition on entry into and exit from the European Union. The British scheme simply requires the taking of a photograph when someone applies for an ETA on their phone. It will be much smoother and much less burdensome and as a result, economic benefits will, I think, accrue to our country.

My Lords, the Minister referred to fingerprinting. Can he update the House on what plans, that he knows of, are being prepared to force UK citizens travelling to Europe to be fingerprinted at the point of departure, whether it is Dover, Folkestone or St Pancras? If discussions are happening, can he tell us what steps the Government are taking to enable the infrastructure in those three locations to handle the large volumes of people who would need to be fingerprinted?

The noble Viscount makes an important point. Obviously, a vital part of the ETIAS system on which the EU will rely involves the implementation, six months before the introduction of ETIAS, of something called the European entry/exit system, which will require all non-EU nationals entering the EU to be photographed and to provide their fingerprints on both entry and exit. This is the topic of ongoing negotiations between our Government and that of the European Union and the member states themselves. Clearly, discussions are ongoing about the impact this will have at our ports and the border. I can reassure the noble Viscount that these things are being speedily considered, and it is hoped that changes may be made.

Schools: Admissions


Asked by

To ask His Majesty’s Government what assessment they have made of the United Nations Committee on the Rights of the Child’s recommendation that the United Kingdom should prevent the use of religion as a selection criterion for school admissions in England.

My Lords, the UK is a proud signatory of the UN Convention on the Rights of the Child. However, the Government support faith schools’ ability to set faith-based oversubscription criteria. This allows parents to have their children educated in line with their religious beliefs. Faith schools can give priority to applicants on the basis of faith only when they are oversubscribed. Where places are available, they must admit all children who apply.

My Lords, I am not sure that is quite correct. Not a lot of people know this, but children from non-religious families may experience double discrimination when it comes to selection at schools. Approximately 40% of all faith schools and 60% of Catholic schools give priority to children of families of any religion against those of no religion. As the equalities spokesperson and a humanist, I agree with the UN Committee on the Rights of the Child, which has urged the UK to end the use of religion as a selection criterion for school admissions in England. Does the Minister agree that all children, irrespective of faith or belief background, should have equal right to access schools funded by taxpayers’ money?

As I tried to set out in my initial Answer, we believe that all children have equal access. Only when a school is oversubscribed can the admissions authority introduce additional restrictions. Indeed, many faith schools do not restrict on the basis of faith.

How does the Minister respond to these remarks from a parent in Oldham who told Humanists UK that

“the 2021 Census found that those of no religion, and those of other faiths than Christianity, now form a majority of the population in our town. So it is a great injustice that one of the best schools in Oldham actively prevents local children from benefiting from its excellent teaching”?

If there is a specific example where the noble Baroness believes that the admissions code is not being followed by a school, I will be delighted for her to refer it to me.

My Lords, as there is no Anglican bishop in the House to put forward the view of the Anglican Church, I remind the House that I went to a Church of England primary school back in the 1940s, when we had been evacuated to Southport. Neither of my parents was asked whether they were members of the Church of England—neither was. I know of no secondary Anglican school that has ever debarred a child on grounds of religion. They are open to all.

It is not quite clear to me what my noble friend’s question was, but he is absolutely right that, on oversubscription, certainly at primary, there is no difference between faith and non-faith schools.

My Lords, the Minister will probably be aware that the UK is one of only four countries in the OECD that allows state-funded schools to discriminate on grounds of religion in their admission practices. The others are Israel, Ireland and Estonia. Ireland recently ended discrimination in admission practices for Catholic junior schools. Does the Minister accept that it is high time for this country also to end its discrimination on grounds of religion for state-funded schools?

It is really hard to compare the role of faith-based schools between countries with an overwhelmingly dominant faith and those, such as the one we are all very proud to live in, with many faiths, all of which are respected.

My Lords, I agree with my noble friend Lord Baker that it is a great pity that, of the 26 of them entitled to sit in your Lordships’ House, there is no bishop here to defend the wonderful contribution that the established Church has made to education through the centuries. Should we not pay proper regard to that and, in doing so, accept that Christian parents should have some degree of priority if there are vacancies in a Church of England school?

I share my noble friend’s warm welcome for the remarkable work of all our schools, including our faith schools, all around the country.

My Lords, I was present when the then Education Secretary Michael Gove, on a visit to the Guru Nanak school in Hayes, applauded Sikh respect for other faiths, shown in assemblies and teaching. This and high academic performance lead to oversubscription for entry. Does the Minister agree that greater support should be given to faith schools that teach respect and inclusivity over those grounded in the divisive belief that their faith alone has a monopoly on the truth?

I do not accept that there are faith schools that have the kind of perspective that the noble Lord set out. We work hard with all our schools, and schools work together in local areas, to make sure that those values of respect—particularly for those of any other faith or none—are upheld. That is part of our citizenship curriculum and our fundamental British values.

My Lords, it is estimated that 1.2 million school places are subject to religious selection. There is evidence of low numbers of pupils eligible for free school meals, which is a measure of deprivation, in English faith schools. Will the Minister share her reflections and concerns about the selection process that may have led to this and whether the Department for Education will take a deeper look at this?

I looked at those numbers just before this Question, because I anticipated that the noble Baroness might raise them. I am happy to pick this up with her afterwards, but the data that I looked at suggest very little difference in the profile of deprivation between faith and non-faith schools.

My Lords, I declare an interest as a former head teacher of a Church of England school. As the Minister knows, a third of all our schools in England are faith schools. She will also know that in 2010 we introduced the 50% rule whereby 50% of new academies had to have open places. Has her department reviewed the success of that scheme in terms of community cohesion, understanding of different cultures and faiths, and whether we should now extend it to all faith schools?

I am not aware that we have looked in detail at any of those proposals in the way that the noble Lord describes, but I am aware that all schools—potentially faith schools in particular—take their role in community cohesion very seriously.

Does my noble friend accept that the rights of parents to have their children educated according to their own religious beliefs is protected by Article 2 of the first protocol of the European Convention on Human Rights? Does she accept that Catholic schools, at least, are not state schools?

I am not quite sure that I follow. To the best of my knowledge, all Catholic schools outside the independent sector are funded by the state.

My Lords, as a former Archbishop of Canterbury, perhaps I might speak on behalf of the absent Bishops’ Benches. I echo the words of the noble Lord, Lord Baker: the very heart of Anglicanism and the Church of England has been a tolerance of and welcome to other faiths. Does the Minister agree that that has always been the focus of education in England, and that we all want it to continue?

Leasehold Properties: Managing Agents


Asked by

To ask His Majesty’s Government what plans they have to regulate managing agents who manage leasehold properties on behalf of freeholders while being paid by leaseholders.

My Lords, in begging leave to ask the Question standing in my name on the Order Paper, I refer the House to the register of interests and the fact that I am a leaseholder.

My Lords, we are committed to raising standards and professionalism within the property management sector. Managing agents in England and Wales must belong to one of the two government-approved redress schemes. Leaseholders can also apply to the First-tier Tribunal to appoint a manager where there is significant management failure. We will continue to work with the industry on improving best practice, including in relation to the codes of practice. Announcements will be set out in the usual way.

I thank the Minister for that response. There is a desperate need for a regulator with real teeth to ensure that managing agents treat leaseholders fairly and are open about their charges; that there is a proper redress scheme in place, with real powers to take remedial action against those who rip people off; and that, in the worst cases, they can be removed from the industry. Does the Minister agree with me that that is the way forward?

I agree with the noble Lord. That is exactly what we are doing. The commitment includes raising professionalism and standards among property agents. As I am sure the noble Lord knows, the noble Baroness, Lady Hayter, and RICS, which she is working with, will meet the Housing Minister to discuss a code of practice for property agents. I thank the noble Baroness for all the work she is doing on this, and I welcome her excellent stewardship of the independent steering group as we strive to promote best practice among property agents in future.

My Lords, the Building Safety Act has given leaseholders very welcome protection against the costs of making their buildings safe, following the Grenfell tragedy. But the legislation has an important defect, in that if any leaseholder subsequently extends his or her lease, they lose all their protection. I think my noble friend is aware of this oversight in the legislation, but when will she put it right and will it be retrospective?

My Lords, we are well aware of the significant issue concerning leaseholder protections where leases are extended or varied. A change to primary legislation is necessary to ensure the continuation of protection. We are looking to bring forward the necessary legislation as soon as parliamentary time allows. Obviously, compensation will be part of that discussion, I am sure.

Is the Minister not aware that freeholders are frequently motivated to consolidate the ownership of their properties by driving the leaseholders into unsustainable debt, by dint of exorbitant service charges?

I thought the noble Viscount was going to go on further with that question; it was nice and quick. He is absolutely right; I get more letters about service charges, particularly at this time, than ever before. We believe very strongly that service charges need to be more transparent and communicated more effectively by freeholders, because there should be a clear route to challenging them, or to redress if things go wrong. We are working to make sure that we get further changes to leaseholder legislation to ensure that transparency.

My Lords, the noble Lord, Lord Kennedy of Southwark, raised the regulation of managing agents of leaseholder properties. Does the Minister recall that the working group the Government set up looked at estate agents and letting agents as well, grouping them all together as property agents and requiring a regulator that covered all three sectors together? This makes a lot of sense because some people do all three jobs.

The noble Lord is right, and I thank him for the work he has done on this. I assure him that we are still looking at his review. We are also working with National Trading Standards to improve particularly the disclosure of material information in property listings, and with estate agents to ensure that they are offering an appropriate service to consumers all the time. We will continue to work with the sector to make sure that it is behaving appropriately and ensuring that people who go to agents are treated with the respect that they deserve.

My Lords, over the years that this has been a major issue we have had seven Secretaries of State and nine Housing Ministers. In the meantime, the building safety crisis and surging inflation are causing even more financial hardship to tens of thousands of leaseholders. Can the Minister assure us that managing agent reform—I use that word deliberately—and regulation specifically will be a plank of any new legislation? Will it be given the necessary time to ensure that it receives Royal Assent before the end of the next Parliament?

My Lords, I have said many times at the Dispatch Box that I cannot say that. I cannot tell noble Lords when the leaseholder protection Bill will come through and what it will contain because that would pre-empt the King’s Speech. However, I can assure noble Lords, as I have said before, that it was in our manifesto and that we intend to deliver before the end of the Parliament.

My Lords, would it not be better if leaseholders were enabled more easily to take over the management of their flats themselves? At present, this is particularly difficult and can be easily frustrated. What will the Government do to make it easier?

My Lords, the estate agents Hamptons estimates that England’s leaseholders will collectively pay a crippling £7.6 billion in service charges this year. The Minister will have heard from the individuals. Although it is tempting to say that the case is therefore for statutory regulation of managing agents, could she comment on the real solution, which is that leaseholders should have the right easily to hire and fire managing agents themselves, as suggested by Commonhold Now, and that they should have some control over their own properties?

The noble Baroness is right. That is exactly why we are looking at a code of conduct, which will have teeth, and the role more widely of leaseholders when we look to the leasehold Bill that will come through.

My Lords, my noble friend refers to leasehold, but is it not correct that all the other professionals involved in residential property transactions—I declare an interest as a solicitor—are very tightly controlled indeed in respect of fees and their conduct, bearing in mind the extra responsibilities, such as sales and purchases, now placed on professionals? Why are we not more determined to ensure that estate agents are equally controlled?

My Lords, estate agents are regulated through the Estate Agents Act 1979. As I said, that is currently enforced through the National Trading Standards estate and letting agency team, which makes it very clear that estate agents are expected to exercise due diligence and check whether the information on anything they are selling is correct. The Government expect all property agents to ensure that customers are aware of anything to do with the property that they are negotiating on and to work within those trading standards rules and regulations.

My Lords, we keep getting vague promises about action being taken on leaseholder reform. For all leaseholders, the prospect of hikes in their service charges hangs over them like a sword of Damocles. It is about time that this was sorted out. The present provisions are too opaque and leave leaseholders at the mercy of unscrupulous managing agents. If we are to have transparency of service charges, when will this reform come forward? Please can we have a bit more clarity about when the Government will tackle it?

The noble Baroness is absolutely right: leaseholders need that transparency to better understand what they are paying for and for it to be harder for landlords to hide any unreasonable charges. As I said, we are looking at it. We will bring forward legislation later in this Parliament.

My Lords, on that very important point, does the Minister envisage that the outcome of this will be models to insist that agents set out information in a way that is very simple and easy to understand? Unless we have that, it will be so easy for agents to hide behind the jargon used in the industry about what exactly service charges cover.

I cannot say what will be in the proposed Bill, but what the noble Lord has said is absolutely right. Leaseholders should be absolutely clear about what to expect from their landlord.

Business of the House


Before we move on to the main business, I think it will be helpful, while as many noble Lords as possible are in the Chamber, to provide an update on how today’s proceedings will run. After consideration of the Senior Deputy Speaker’s Motions and other brief business, we will further consider the Online Safety Bill on Report. We will break for dinner at a convenient point after 7.30 pm as per usual, continue with that Bill after dinner and conclude proceedings on it by 10 pm.

As noble Lords know, we will also consider a further message from the House of Commons on the Illegal Migration Bill this evening. The precise start time will depend on a variety of factors. We expect the other House to conclude its consideration of the Bill no earlier than 8 pm and to send its message as soon as possible thereafter. The deadline for noble Lords to table amendments will be one hour after the message arrives in this House. The precise time will be communicated by email to Peers through the usual channels and will be placed on the annunciator. Members must contact the Public Bill Office in that window, preferably in person, to table their amendments. Once amendments have been received, the Public Bill Office will produce a Marshalled List and briefings for the Peers and Deputy Speakers involved. The Government Whips’ Office will also reissue today’s list with the groupings for debate. We will commence the debate as soon as possible, but we expect that it could be later in the evening.

If we have finished the debate on the Online Safety Bill, the House will be adjourned until proceedings on the Illegal Migration Bill commence. I hope that is clear to all noble Lords. The Whips’ offices and House authorities are on hand to help, and all details will be communicated on the annunciator as soon as they are available.

I take this opportunity to thank all staff across the House and the usual channels for their work to support late sittings this week, particularly the Public Bill Office for its dedicated work and those who have made additional catering and services available to noble Lords, ensuring that we are well supported. Further detail on the arrangements for this evening and tomorrow has been circulated and is available on the intranet.

My Lords, first, I thank my noble friend for the excellent work that she and her colleagues in the Whips’ Office are doing but, just on that last point, are we really expected to have just the Long Room open later this evening—and I suspect it may be a long evening—when there are so many people on both sides of the House who will want refreshments? I know this is not my noble friend’s bailiwick, but could she use her good offices to ensure that those responsible are aware of the needs of Members?

It may not be my bailiwick but the well-being of my colleagues and, indeed, the whole House is of utmost importance, so I have asked that the extended opening hours of establishments all over the House, including the Terrace, until midnight be circulated.

My Lords, could I be reminded of what the Companion says about the normal finishing times for business in this House? Is it not the case that the way that this is being structured is almost a punishment beating for the House of Lords for daring to question a particular piece of legislation? The Commons is considering it earlier in the day and then we will have the usual four or five hours while a message comes from one end of the building to the other. It will then be digested before we start our business so that the message can go back—if there is a message—and the Commons can consider it tomorrow, early in the day, and then presumably it will be sent back to us for us to consider right at the end of the day. Would it not be better for us to agree that we finish at the normal time tonight, then consider it at a sensible hour tomorrow and, if the Commons needs to consider again, it can do it either very late at night tomorrow or wait until the following day?

My Lords, I think the House will agree that there is nothing unusual about this ping-pong process. One thing that has led to a slight delay today is that there was a Statement in the House of Commons. The Statement is coming first, followed by the consideration, then the Bill is coming back to us. That is not unusual. I hope that the noble Lord will be satisfied.

My Lords, when the House sits as late as it may tonight and tomorrow morning, expenses are provided to certain House staff. I understand that, following a recent late sitting, after 6 am—when it is not impossible we will be sitting at again—some staff were not allowed to claim expenses for travel. Can my noble friend please have a look at that?

My Lords, before my noble friend gets up, bearing in mind the interview that the Minister of State gave on Saturday morning on the “Today” programme, could we not save some time by telling those noble Lords who want to put down amendments that the Bill is not going to change? It will come back in the state in which that the Minister of State says it will come back. That would save quite a lot of time and we could just get on with the debate.

On my noble friend Lord McLoughlin’s point, he knows that that is not the way of politics. On my noble friend Lord Brownlow’s point, I will certainly take that back. I did not realise that it was the case.

Procedure and Privileges Committee

Motion to Agree

Moved by

That the Report from the Select Committee Leave of Absence, Sifting of proposed negative instruments under the Retained EU Law (Revocation and Reform) Act 2023 and amendments to the SLSC Terms of Reference (6th Report, HL Paper 228) be agreed to.

My Lords, the report recommends two sets of changes to the House. The first relates to the leave of absence scheme and the second to the sifting of proposed negative instruments by the Secondary Legislation Scrutiny Committee.

I turn first to the proposed small change to the leave of absence scheme. In applying to the Clerk of the Parliaments for leave of absence, Members are currently required to state that they have a “reasonable expectation” of return, to specify a reason for requesting the leave of absence, and to give a

“date by which they expect to return”.

This last requirement has caused some difficulty for Members who genuinely do not know when they will be in a position to return. Cases may include a Member seeking leave of absence for medical treatment or to take on caring responsibilities for a family member.

The change proposed by the committee would allow a Member who is not able to specify a date instead to explain the

“circumstances which will allow their return”.

The committee intends to look further at the leave of absence scheme in the autumn, and I would be happy to talk to any Member who had thoughts on how it could be improved. For now, I hope that the House will support this adjustment.

The report also contains proposals relating to the sifting of proposed negative instruments laid under the Retained EU Law (Revocation and Reform) Act 2023 and their scrutiny by the Secondary Legislation Scrutiny Committee. These proposals mirror the arrangements that operated under the European Union (Withdrawal) Act 2018 and the European Union (Future Relationship) Act 2020.

The report speaks for itself and I will not detain the House unnecessarily. However, I want to place on record my considerable thanks to the members of the Secondary Legislation Scrutiny Committee, who are content to take on this extra scrutiny and to the excellent officials who serve the committee.

I would like to be very clear that the laying of negative instruments during Recess would not reduce the House’s ability to scrutinise them as the scrutiny clock would not start until the two Houses were sitting again. The advantage of allowing proposed negative instruments to be laid during recesses is that it would enable staff working for the committee to continue their work in recesses in order to provide papers immediately after the return of the House. I beg to move the first Motion standing in my name. I beg to move.

My Lords, I will speak briefly to the Procedure and Privileges Committee’s recommendation that the terms of reference of the Secondary Legislation Scrutiny Committee, which I am privileged to chair, should be extended to include scrutiny of proposed negative instruments laid under the retained EU law Act. In 2018, the committee was given a similar sifting function in relation to the withdrawal Act, which was later extended to include the sifting of proposed negative instruments under the 2020 future relationship Act.

At the beginning, the committee was in uncharted territory, but under the wise leadership of my noble friend Lord Trefgarne, the noble Lord, Lord Cunningham of Felling, and then my noble friend Lord Hodgson of Astley of Abbotts, ably assisted by the noble Lord, Lord Hutton, and others, together with a strong team of advisers and other staff, I believe the committee has since become well accustomed to what was at the time a novel procedure. Having considered nearly 350 proposed negative instruments laid under the 2018 and 2020 Acts, we would welcome this opportunity to apply our experience to sifting instruments laid under the retained EU law Act.

My Lords, can I raise a couple of points in relation to leave of absence? I have reason to believe that in one or two cases the leave of absence provision has been exploited in an unfortunate way. I wonder therefore whether the committee and the chairman could consider two things. I understand why this is not retrospective and says “in future”, but first these proposals should be drawn to the attention of those who are currently on leave of absence and, secondly, each current case of leave of absence should be looked at to ensure it is not being exploited in an unfortunate way. If the chairman wants further information, I am very happy to provide it.

My Lords, I would just like to add a few words to what the noble Lord, Lord Foulkes, has said. This House is frequently criticised because of its size. We have trotted out in newspaper leaders and articles that it is second only in size to the Chinese National People’s Congress, but if one actually looks at this House and studies it, the vast majority of work falls on the shoulders of a relatively small number of the 800 or so Members.

It is also clear, when one looks at the list of those who have taken leave of absence, that there are big question marks over some of them. Of course, an ambassador, such as our current ambassador in Italy, should, without question, be given leave of absence. We know that when he retires from his diplomatic career, he will be able to add many wise words to our counsel in this place. The same was true, of course, of the noble Baroness, Lady Ashton, when she had a very important job in the European Union and had leave of absence.

However, there are others, whose names I will not mention, who do not necessarily measure up to that and are not necessarily very ill for a long period. Of course illness or caring for a loved one should be taken into account and accepted as a proper reason, but there ought to be much more frequent reviews of this. My understanding is that, although it is supposed to be looked at by committee on a regular basis, that actually happens very infrequently. I am most grateful to my noble friend and delighted that it is being examined at the moment.

I would be grateful if, when my noble friend replies to this brief debate, he would tell us how many currently are on leave of absence, and how many have been for more than two years. My view is that, unless there is an overriding reason—health, a diplomatic appointment or something like that—a leave of absence should not be readily granted for more than a parliamentary Session. After all, if someone does not appear during a parliamentary Session, under the terms of the 2014 Act, known as the Steel Act, that Member forfeits membership. There is a very strong case, although I will not expand on it now, that those who do not put in a certain minimum attendance should forfeit their right because you are not able to play a constructive part in a Chamber of Parliament unless you attend on a reasonably regular basis and participate.

I hope that the review to which my noble friend referred—he said it would be coming back in the autumn—will take evidence and discuss this with bodies such as the Campaign for an Effective Second Chamber, which I have the honour to chair, and which has Members from all political parties and the Cross Benches and meets on a frequent basis. I hope we will have the chance to make a submission. If numbers are something that bring obloquy on the House, we ought to try to deal with that in a constructive and sensible manner. Granting indefinite leave of absence without rigorous examination, frankly, does no service to Parliament in general or to this House in particular.

My Lords, I was not intending to speak so I shall be brief. I endorse many of the comments made by the noble Lord, Lord Cormack.

As the House knows well, we are entering a period when there is going to be a great deal more debate about the future and the nature of the composition of the membership of this House, and that will extend beyond the next general election. When I read, as all Members have done, in the recent report by the Speaker’s committee on the composition of the House that the House of Commons Select Committee is currently investigating this House then I think there is all the more reason why we ourselves should have a full and proper discussion and not wait until the next election, so I fully endorse the Senior Deputy Speaker’s suggestion that we return to this in the autumn.

My Lords, I thank the noble Lord, Lord Hunt of Wirral. On what he said about “uncharted territory”, my view is that the noble Lord’s committee has acquired expertise on these matters of sifting extremely quickly, and I place on record my gratitude to previous members and current members and staff for their considerable work in this regard.

On the question of leave of absence, we have had three very helpful contributions. The work that will be getting under way, which I mentioned in prefacing this debate, is precisely for the reasons that have been articulated. We need to get this right and it needs to be appropriate. The reference regarding leave of absence is to “temporary circumstances”. One can interpret “temporary” in different ways, and we have heard various examples of rather longer periods of temporary circumstance when a Member takes leave of absence.

To answer some questions, I knew the answer to the first one, which is that 38 Members are currently on leave of absence, but then a helpful note was passed to me with a figure that I did not know, which is that 18 Members are on leave of absence for more than two years. So those are the two figures.

On future dialogue, as I have said, I very much welcome contributions, submissions or one-to-one meetings with any Members who have particular thoughts on this matter. There is an opportunity for your Lordships’ Select Committee to look at this in the autumn, because we want to make sure that it is contemporary and correct. We are of course mindful that there is the ability for some of our Members to be away for the reasons that we all know and, I hope, to come back and make a strong contribution—sometimes because of the experience they have had in other disciplines and tasks.

We have heard very helpful comments from Members of the House today. In the meantime, I commend the report to the House.

Motion agreed.

Standing Orders (Public Business)

Motion to Approve

Moved by

That the Standing Orders relating to Public Business be amended as follows:

Standing Order 21 (Leave of Absence)

Leave out paragraph (3) and insert the following new paragraph:

“(3) When applying for leave of absence, a member of the House should state in their written application: (a) either the date by which they expect to return, or, if they are unable to specify a date, the circumstances which will allow their return; (b) the reason for their leave of absence; and (c) that they have a reasonable expectation that they will be in a position again to take part in the proceedings of the House.”

Standing Order 71 (Laying of documents under Schedule 7 to the European Union (Withdrawal) Act 2018 and Schedule 5 to the European Union (Future Relationship) Act 2020)

Title, delete from “and” to the end and insert “Schedule 5 to the Retained EU Law (Revocation and Reform) Act 2023

Line 1, delete “paragraphs 3(3) and” and insert “paragraph”

Line 2, delete “paragraph 8(3) of Schedule 5 to the European Union (Future Relationship) Act 2020” and insert “paragraph 6(3) of Schedule 5 to the Retained EU Law (Revocation and Reform) Act 2023”.

Motion agreed.

Business and Planning Act 2020 (Pavement Licences) (Coronavirus) (Amendment) Regulations 2023

Motion to Approve

Moved by

That the draft Regulations laid before the House on 7 June be approved.

Relevant document: 44th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 12 July.

Motion agreed.

Pensions Dashboards (Amendment) Regulations 2023

Motion to Approve

Moved by

That the draft Regulations laid before the House on 8 June be approved.

Relevant document: 44th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument). Considered in Grand Committee on 12 July.

Motion agreed.

Online Safety Bill

Report (4th Day)

Relevant documents: 28th and 38th Reports from the Delegated Powers Committee, 15th Report from the Constitution Committee. Scottish and Welsh Legislative Consent granted.

Amendment 186A

Moved by

186A: Before Clause 64, insert the following new Clause—

“Terms of service as a contract

The terms of service under which a Category 1 service is provided to a person who is a consumer for the purposes of the Consumer Rights Act 2015 must be treated as being a contract for a trader to provide a service to a consumer.”Member’s explanatory statement

This purpose of this amendment is to ensure that providers’ terms of service are treated as consumer contracts, and to give users recourse to the remedies under the Consumer Rights Act 2015 in the event of breach.

My Lords, in speaking to my Amendment 186A, I hope that noble Lords will forgive me for not speaking in detail to the many other amendments in this group correctly branded “miscellaneous” by those who compile our lists for us. Many of them are minor and technical, especially the government amendments. However, that is not true of all of them: Amendment 253 in the name of the noble Lord, Lord Clement-Jones, is a substantial amendment relating to regulatory co-operation, while Amendment 275A, in the name of the noble Baroness, Lady Finlay of Llandaff, is also of some interest, relating to the reports that Ofcom is being asked to produce on technological developments.

Nor is Amendment 191A lacking in importance and substance, although—I hope I will be forgiven for saying this, not in a snarky sort of way—for those of us who are worried about the enormous powers being given to Ofcom as a result of the Bill, the idea that it should be required by statute to give guidance to coroners, who are part of the courts system, seems to me strange and worth examining more closely. There might be a more seemly way of achieving the effect that the noble Baroness, Lady Kidron, understandably wants to achieve.

I turn to my own Amendment 186A, which, I hope, ought to be relatively straightforward. It concerns the terms of service of a contract with a category 1 service provider, and it is intended to improve the rights that consumers or users of that service have. It is the case that the Government want users of those services to have the ability to enforce their rights under contract against the service providers, as set out in Clause 65, and this is entirely welcome. However, it is well known that bringing claims in contract can be an expensive and onerous business, as I have pointed out in the past, particularly when the service is provided on the one-sided terms of the service provider—often, of course, drafted under the legal system of a foreign jurisdiction.

Parliament recognised this difficulty when it enacted the Consumer Rights Act 2015. Its purpose was to make it easier for consumers to deal fairly with traders and get redress when they are treated unfairly. However, category 1 providers such as Twitter and Facebook are not governed by the Consumer Rights Act. In the language of the Act, they do not supply digital content

“for a price paid by the consumer”,

a requirement of the Act. So the purpose of Clause 65 is therefore only partially achieved in the Bill as it stands; a key element in enforcing consumer rights is missing.

The European Union, to its credit, rectified this oversight in its directive about modernising consumer law in 2019. It provides that a consumer who receives content or a service in return for providing their personal data should be in the same position as the consumer who pays a price, and the same consumer protections apply to both. The effect of my amendment is that we would follow suit—if we are serious about protecting and empowering users, that is what we should do. We should do away with the arbitrary fiction that category 1 users are not consumers deserving of protection simply because they do not pay a monetary price.

I have heard it said about bringing up this matter on Report, when it should have been brought up in Committee—as I admit that it should—that it is a little too late perhaps for the Bill team and the Minister to absorb this proposal. However, I do not fully accept that, since the Third Reading of the Bill has been set for 4 September, which gives the Government ample time over the summer to get all their ducks lined up in a row.

I should have thought that this amendment would command support on all sides of the House and from all noble Lords who have participated in this Bill so far. I am hoping, although I have had no indication from my noble friend the Minister whether he is going to accept this amendment, that he would feel that it was a relatively straightforward thing to do, entirely in line with his purpose and something that would strengthen the Bill considerably. I beg to move.

My Lords, I shall speak to my Amendment 275A in this group. It would place a duty on Ofcom to report annually on areas where our legal codes need clarification and revision to remain up to date as new technologies emerge—and that is to cover technologies, some of which we have not even thought of yet.

Government Amendments 206 and 209 revealed the need for an amendment to the Bill and how it would operate, as they clarify that reference to pornographic content in the Bill includes content created by a bot. However, emerging technologies will need constant scrutiny.

As the noble Lord, Lord Clement-Jones, asked, what about provider content, which forms the background to the user interaction and may include many harms. For example, would a game backdrop that includes anti-Semitic slurs, a concentration camp, a sex shop or a Ku Klux Klan rally be caught by the Bill?

The Minister confirmed that “content” refers to anything communicated by means of an internet service and the encounter includes any content that individuals read, view, hear or otherwise experience, making providers liable for the content that they publish. Is this liable under civil, regulatory or criminal law?

As Schedule 1 goes to some lengths to exempt some service-to-provider content, can the Minister for the record provide chapter and verse, as requested by the noble Lord, Lord Clement-Jones, on provider liability and, in particular, confirm whether such content would be dealt with by the Part 3 duties under the online safety regime or whether users would have to rely on similar law for claims at their own expense through the courts or the police carry the burden of further enforcement?

Last week, the Minister confirmed that “functionality” captures any feature enabling interactions of any description between service users, but are avatars or objects created by the provider of a service, not by an individual user, in scope and therefore subject to risk assessments and their mitigation requirements? If so, will these functionalities also be added to user empowerment tools, enabling users to opt out of exposure to them, or will they be caught only by child safety duties? Are environments provided by a service provider, such as a backdrop to immersive environments, in scope through the definition of “functionality”, “content” or both? When this is provider content and not user-generated content, will this still hold true?

All this points to a deeper issue. Internet services have become more complex and vivid, with extremely realistic avatars and objects indistinguishable from people and objects in the real world. This amendment avoids focusing on negatives associated with AI and new technologies but tries to ensure that the online world is as safe as the offline world should be. It is worth noting that Interpol is already investigating how to deal with criminals in the metaverse and anticipating crimes against children, data theft, money laundering, fraud and counterfeit, ransomware, phishing, sexual assault and harassment, among other things. Many of these behaviours operate in grey areas of the law where it is not clear whether legal definitions extend to the metaverse.

Ofcom has an enormous task ahead, but it is best placed to consider the law’s relationship to new technological developments and to inform Parliament. Updating our laws through the mechanisms proposed in Amendment 275A will provide clarity to the courts, judges, police and prosecution service. I urge the Minister to provide as full an answer as possible to the many questions I have posed. I am grateful to him for all the work he has been doing. If he cannot accept my amendment as worded, will he provide an assurance that he will return to this with a government amendment at Third Reading?

My Lords, I will speak to Amendment 191A in my name. I also support Amendment 186A in the name of the noble Lord, Lord Moylan, Amendment 253 in the name of the noble Lord, Lord Clement-Jones, and Amendment 275A in the name of my noble friend Lady Finlay. I hope that my words will provide a certain level of reassurance to the noble Lord, Lord Moylan.

In Committee and on Report, the question was raised as to how to support the coronial system with information, education and professional development to keep pace with the impact of the fast-changing digital world. I very much welcome the Chief Coroner’s commitment to professional development for coroners but, as the Minister said, this is subject to funding. While it is right that the duty falls to the Chief Coroner to honour the independence and expert knowledge associated with his roles, this amendment seeks to support his duties with written guidance from Ofcom, which has no such funding issue since its work will be supported by a levy on regulated companies—a levy that I argue could usefully and desirably contribute to the new duties that benefit coroners and bereaved parents.

The role of a coroner is fundamental. They must know what preliminary questions to ask and how to triage the possibility that a child’s digital life is relevant. They must know that Ofcom is there as a resource and ally and how to activate its powers and support. They must know what to ask Ofcom for, how to analyse information they receive and what follow-up questions might be needed. Importantly, they must feel confident in making a determination and describing the way in which the use of a regulated service has contributed to a child’s death, in the case that that is indeed their finding. They must be able to identify learnings that might prevent similar tragedies happening in the future. Moreover, much of the research and information that Ofcom will gather in the course of its other duties could be usefully directed at coroners. All Amendment 191A would do is add to the list of reports that Ofcom has to produce with these issues in mind. In doing so, it would do the Chief Coroner the service of contributing to his own needs and plans for professional development.

I turn to Amendment 186A in the name of the noble Lord, Lord Moylan, who makes a very significant point in bringing it forward. Enormous effort goes into creating an aura of exceptionality for the tech sector, allowing it to avoid laws and regulations that routinely apply to other sectors. These are businesses that benefit from our laws, such as intellectual copyright or international tax law. However, they have negotiated a privileged position in which they have privatised the benefits of our attention and data while outsourcing most of the costs of their service to the public purse or, indeed, their users.

Terms and conditions are a way in which a company enters into a clear agreement with its users, who then “pay” for access with their attention and their data: two of the most valuable commodities in today’s digital society. I am very sympathetic to the noble Lord’s wish to reframe people, both adults and children, from a series of euphemisms that the sector employs—such as “users”, “community members”, “creators” or “participants”—to acknowledge their status as consumers who have rights and, in particular, the right to expect the product they use to be safe and for providers to be held accountable if it is not. I join the noble Lord in asserting that there are now six weeks before Third Reading. This is a very valuable suggestion that is worthy of government attention.

Amendment 253 in the name of the noble Lord, Lord Clement-Jones, puts forward a very strong recommendation of the pre-legislative committee. We were a bit bewildered and surprised that it was not taken up at the time, so I will be interested to hear what argument the Minister makes to exclude it, if indeed he does so. I say to him that I have already experienced the frustration of being bumped from one regulator to another. Although my time as an individual or the organisational time of a charity is minor in the picture we are discussing, it is costly in time and resources. I point to the time, resources and potential effectiveness of the regulatory regime. However well oiled and well funded the regulatory regime of the Online Safety Bill is, I do not think it will be as well oiled and well funded as those that it seeks to regulate.

I make it clear that I accept the arguments of not wanting to create a super-regulator or slow down or confuse existing regulators which each have their own responsibilities, but I feel that the noble Lord, Lord Clement-Jones, has approached this with more of a belt-and-braces approach rather than a whole realignment of regulators. He simply seeks to make it explicit that regulators can, should and do have a legal basis on which to work singularly or together when it suits them. As I indicated earlier, I cannot quite understand why that would not be desirable.

Finally, in what is truly a miscellaneous group, I will refer to the amendment in the name of my noble friend Lady Finlay. I support the intent of this amendment and sincerely hope that the Minister will be able to reassure us that this is already in the Bill and will be done by Ofcom under one duty or another. I hope that he will be able to point to something that includes this. I thank my noble friend for raising it, as it harks back to an amendment in Committee in my name that sought to establish that content deemed harmful in one format would be deemed harmful in all formats—whether synthetic, such as AI, the metaverse or augmented reality. As my noble friend alluded to, it also speaks to the debate we had last week in relation to the amendment from the noble Lord, Lord Clement-Jones, about provider content in the metaverse.

I do not think we have time to wait for the report that my noble friend seeks. This is the long-awaited Online Safety Bill. We have been warned by the inventors of neural networks and leaders in AI and alternate realities that we are at a crossroads between human and machine. It is incumbent on the Government to ensure that the Bill is fit not only for the past but for the future. In order to do that, they need to look at the definitions—as they did so admirably in Part 5—but also at some of the exceptions they have carved out so that they can say that the Bill truly ends the era of exceptionality in which harms online are treated differently from those offline. My view is that the amendment in the name of my noble friend Lady Finlay should not be necessary at this stage. But, if the Minister cannot confirm that it is already covered, perhaps he will indicate his willingness to accept the amendment.

My Lords, I will make some arguments in favour of Amendment 191A, in the name of the noble Baroness, Lady Kidron, and inject some notes of caution around Amendment 186A.

On Amendment 191A, it has been my experience that when people frequently investigate something that has happened on online services, they do it well, and well-formed requests are critical to making this work effectively. This was the case with law enforcement: when an individual police officer is investigating something online for the first time, they often ask the wrong questions. They do not understand what they can get and what they cannot get. It is like everything in life: the more you do it, the better you get at it.

Fortunately, in a sense, most coroners will only very occasionally have to deal with these awful circumstances where they need data related to the death of a child. At that point, they are going to be very dependent on Ofcom—which will be dealing with the companies day in and day out across a range of issues—for its expertise. Therefore, it makes absolute sense that Ofcom’s expertise should be distributed widely and that coroners—at the point where they need to access this information—should be able to rely on that. So Amendment 191A is very well intended and, from a practical point of view, very necessary if we are going to make this new system work as I know the noble Baroness, Lady Kidron, and I would like to see it work.

On Amendment 186A around consumer law, I can see the attraction of this, as well as some of the read-across from the United States. A lot of the enforcement against online platforms in the US takes place through the Federal Trade Commission precisely in this area of consumer law and looking at unfair and deceptive practices. I can see the attraction of seeking to align with European Union law, as the noble Lord, Lord Moylan, argued we should be doing with respect to consumer law. However, I think this would be much better dealt with in the context of the digital markets Bill and it would be a mistake to squeeze it in here. My reasons for this are about both process and substance.

In terms of process, we have not done the impact assessment on this. It is quite a major change, for two reasons. First, it could potentially have a huge impact in terms of legal costs and the way businesses will have to deal with that—although I know nobody is going to get too upset if the impact assessment says there will be a significant increase in legal costs for category 1 companies. However, we should at least flesh these things out when we are making regulations and have them in an impact assessment before going ahead and doing something that would have a material impact.

Secondly in process terms, there are some really interesting questions about the way this might affect the market. The consumer law we have does exclude services that are offered for free, because so much of consumer law is about saying, “If the goods are not delivered correctly, you get your money back”. With free services, we are clearly dealing with a different model, so the notion that we have a law that is geared towards making sure you either get the goods or you get the money may not be the best fit. To try to shoehorn in these free-at-the-point-of-use services may not be the best way to do it, even from a markets and consumer point of view. Taking our time to think about how to get this right would make sense.

More fundamentally, in terms of the substance, we need to recognise that, as a result of the Online Safety Bill, Ofcom will be requiring regulated services to rewrite their terms of service in quite a lot of detail. We see this throughout the Bill. We are going to have to do all sorts of things—we will debate other amendments in this area today—to make sure that their terms of service are conformant with what we want from them in this Bill. They are going to have to redo their complaints and redress mechanisms. All of this is going to have to change and Ofcom is going to be the regulator that tells them how to do it; that is what we are asking Ofcom to tell them to do.

My fundamental concern here, if we introduce another element, is that there is a whole different structure under consumer law where you might go to local trading standards or the CMA, or you might launch a private action. In many cases, this may overlap. The overlap is where consumer law states that goods must be provided with reasonable care and skill and in a reasonable time. That sounds great, but it is also what the Online Safety Bill is going to be doing. We do not want consumer law saying, “You need to write your terms of service this way and handle complaints this way”, and then Ofcom coming along and saying, “No, you must write your terms of service that way and handle complaints that way”. We will end up in a mess. So I just think that, from a practical point of view, we should be very focused in this Bill on getting all of this right from an Online Safety Bill point of view, and very cautious about introducing another element.

Perhaps one of the attractions of the consumer law point for those who support the amendment is that it says, “Your terms must be fair”. It is the US model; you cannot have unfair terms. Again, I can imagine a scenario in which somebody goes to court and tries to get the terms struck down because they are unfair but the platform says, “They’re the terms Ofcom told me to write. Sort this out, please, because Ofcom is saying I need to do this but the courts are now saying the thing I did was unfair because somebody feels that they were badly treated”.

Does the noble Lord accept that that is already a possibility? You can bring an action in contract law against them on the grounds that it is an unfair contract. This could happen already. It is as if the noble Lord is not aware that the possibility of individual action for breach of contract is already built into Clause 65. This measure simply supplements it.

I am certainly aware that it is there but, again, the noble Lord has just made the point himself: this supplements it. The intent of the amendment is to give consumers more rights under this additional piece of legislation; otherwise, why bother with the amendment at all? The noble Lord may be arguing against himself in saying that this is unnecessary and, at the same time, that we need to make the change. If we make the change, it is, in a sense, a material change to open the door to more claims being made under consumer law that terms are unfair. As I say, we may want this outcome to happen eventually, but I find it potentially conflicting to do it precisely at a time when we are getting Ofcom to intervene much more closely in setting those terms. I am simply arguing, “Let’s let that regime settle down”.

The net result and rational outcome—again, I am speaking to my noble friend’s Amendment 253 here—may be that other regulators end up deferring to Ofcom. If Ofcom is the primary regulator and we have told it, under the terms of the Online Safety Bill, “You must require platforms to operate in this way, handle complaints in this way and have terms that do these things, such as excluding particular forms of language and in effect outlawing them on platforms”, the other regulators will eventually end up deferring to it. All I am arguing is that, at this stage, it is premature to try to introduce a second, parallel route for people to seek changes to terms or different forms of redress, however tempting that may be. So I am suggesting a note of caution. It is not that we are starting from Ground Zero—people have routes to go forward today—but I worry about introducing something that I think people will see as material at this late stage, having not looked at the full impact of it and potentially running in conflict with everything else that we are trying to do in this legislation.

My Lords, I will speak briefly on a couple of amendments and pick up from where the noble Lord, Lord Allan, just finished on Amendment 186A. I associate myself with all the comments that the noble Baroness, Lady Kidron, made on her Amendment 191A. As ever, she introduced the amendment so brilliantly that there is no need for me to add anything other than my wholehearted support.

I will briefly reference Amendment 253 from the noble Lord, Lord Clement-Jones. Both his amendment and my noble friend Lord Moylan’s point to one of the challenges about regulating the digital world, which is that it touches everything. We oscillate between wanting to compartmentalise the digital and recognising that it is interconnected to everything. That is the same challenge faced by every organisation that is trying to digitise: do you ring-fence or recognise that it touches everything? I am very supportive of the principles behind Amendment 253 precisely because, in the end, it does touch everything. It is hugely important that, even though this Bill and others still to come are creating an extraordinarily powerful single regulator in the form of Ofcom, we also recognise the interconnectivity of the regulatory landscape. The amendment is very well placed, and I hope my noble friend the Minister looks favourably on it and its heritage from the pre-legislative scrutiny committee.

I will briefly add my thoughts on Amendment 186A in this miscellaneous group. It feels very much as if we are having a Committee debate on this amendment, and I thank my noble friend Lord Moylan for introducing it. He raises a hugely important point, and I am incredibly sympathetic to the logic he set out.

In this area the digital world operates differently from the physical world, and we do not have the right balance at all between the powers of the big companies and consumer rights. I am completely with my noble friend in the spirit in which he introduced the amendment but, together with the noble Lord, Lord Allan, I think it would be better tackled in the Digital Markets, Competition and Consumers Bill, precisely because it is much broader than online safety. This fundamentally touches the issue of consumer rights in the digital world and I am worried that, if we are not careful, we will do something with the very best intentions that actually makes things slightly worse.

I worry that the terms and conditions of user-to-user services are incomprehensible to consumers today. Enshrining it as a contract in law might, in some cases, make it worse. Today, when user-to-user services have used our data for something, they are keen to tell us that we agreed to it because it was in their terms of service. My noble friend opens up a really important issue to which we should give proper attention when the Digital Markets, Competition and Consumers Bill arrives in the House. It is genuinely not too late to address that, as it is working its way through the Commons now. I thank my noble friend for introducing the amendment, because we should all have thought of the issue earlier, but it is much broader than online safety.

My Lords, even by previous standards, this is the most miscellaneous of miscellaneous groups. We have ranged very broadly. I will speak first to Amendment 191A from the noble Baroness, Lady Kidron, which was so well spoken to by her and by the noble Baroness, Lady Harding. It is common sense, and my noble friend Lord Allan, as ever, put his finger on it: it is not as if coroners are going to come across this every day of the week; they need this kind of guidance. The Minister has introduced his amendments on this, and we need to reduce those to an understandable code for coroners and bereaved parents. I defy anybody, apart from about three Members of this House, to describe in any detail how the information notices will interlock and operate. I could probably name those Members off the top of my head. That demonstrates why we need such a code of practice. It speaks for itself.

I am hugely sympathetic to Amendment 275A in the name of the noble Baroness, Lady Finlay, who asked a series of important questions. The Minister said at col. 1773 that he would follow up with further information on the responsibility of private providers for their content. This is a real, live issue. The noble Baroness, Lady Kidron, put it right: we hope fervently that the Bill covers the issue. I do not know how many debates about future-proofing we have had on the Bill but each time, including in that last debate, we have not quite been reassured enough that we are covering the metaverse and provider content in the way we should be. I hope that this time the Minister can give us definitive chapter and verse that will help to settle the horses, so to speak, because that is exactly what the very good amendment in the name of the noble Baroness, Lady Finlay, was about.

On the amendment in the name of the noble Lord, Lord Moylan, I think I am rather more in favour of it in principle than is my noble friend, although I do not think he was against it in principle, and I was probably on exactly the same page as far as process is concerned. The noble Baroness, Lady Harding, put her finger on it, because a right of action is highly desirable; in fact, the Joint Committee was extremely keen on having a right of action for those affected by social media, and it made an important recommendation. In a sense, that was not seen through to a sufficient extent. We believe that the Bill is an opportunity to reset the relationship between service providers and users. While we recognise the resource challenges both for individuals in accessing the courts and for the courts themselves, we think that the importance of issues in the Bill requires that users have a right of redress in the court. I am absolutely with the noble Lord but am not entirely sure about shoehorning that into the Bill at this stage, given that other digital services acquire data as well. This should not be covered just by the Online Safety Bill; I believe the DMCC Bill should cover it, and I very much look forward to supporting an amendment from the noble Lord, Lord Moylan, if he chooses to table it when the time comes.

On my Amendment 253, we have heard throughout debates on the Bill that the range of human and business activity covered online presents a complex map of potential harms. Some of them will fall into or be adjacent to the oversight of other regulators with domain-specific expertise. The relationship has to some extent been formalised through the Digital Regulation Cooperation Forum, which comprises Ofcom, the CMA, the ICO and the FCA, and I think we all support the creation of the DRCF. Ofcom already has a working relationship with the ASA, and of course with the Internet Watch Foundation—I was very pleased to hear from it that progress is being made on a memorandum of understanding with Ofcom, and I very much hope that continues to progress, as it has since Committee, because that kind of relationship that Ofcom and the IWF continue to build is really important.

Within that regulatory web, if you like, Ofcom will of course have the most relevant powers and expertise, and many regulators will look to it for help in tackling online safety issues. Effective public protection will be achieved through what might be described as regulatory interlock. To protect the public, Ofcom should be explicitly empowered to co-operate with others and to share information, and the Bill should, as much as it can, enable Ofcom to work with other regulators and share online safety information with them. Ofcom should also be able to bring the immense skills of other regulators into its own work. The Bill gives Ofcom the general ability to co-operate with overseas regulators, but it is largely silent on co-operation with UK ones. The Communications Act 2003 limits the UK regulators with which Ofcom can share information—it excludes the ICO, for instance—yet the Bill has a permissive approach to overseas regulators.

The Bill should extend co-operation and information sharing in respect of online safety to include regulators overseeing the offences in Schedule 7, the primary priority harms for children and the priority harms to adults. Elsewhere in regulation, it is noted that the Financial Conduct Authority has a general duty to co-operate, so there are precedents. As the noble Baroness, Lady Kidron, pointed out, the Joint Committee was extremely keen on this. It said:

“In taking on its responsibilities under the Bill, Ofcom will be working with a network of other regulators and third parties already working in the digital world. We recommend that the Bill provide a framework for how these bodies will work together including when and how they will share powers, take joint action, and conduct joint investigations”.

The logic is absolutely in favour of this. I very much hope that the Minister will be able to take it on board because it has been seen to be logical right from the word go, particularly by the Joint Committee. I think the Communications and Digital Committee also recommended it, so what is not to like?

My Lords, as others have said, this has been a very interesting tour d’horizon of some of the points in the Bill that we still need to resolve. I will not go over too much of the detail that has been raised because those points need a response from the Minister when he responds.

I will start with the use of “chairman” in several places throughout the Bill. We do not understand what is going on here. My noble friend Lady Merron wanted to deal with this but she unfortunately is not here, so I have been left holding the issue, and I wish to pursue it vigorously.

It is probably not well known but, in 2007, the Government decided that there ought to be changes in the drafting of our laws to make them gender-neutral as much as possible. Since 2007, it has been customary practice to replace words that could be gender-specific with those which are not. The Drafting Guidance, which is issued and should be followed by the Office of the Parliamentary Counsel, says that gender-neutral drafting requires

“avoiding gender-specific pronouns (such as ‘he’) for a person who is not necessarily of that gender”,

and avoiding gender-specific nouns

“that might appear to assume that a person of a particular gender will do a particular job or perform a particular role (eg ‘chairman’)”.

The guidance provides another bit of extra information:

“The gender-specific noun most likely to be encountered is ‘chairman’. ‘Chair’ is now widely used in primary legislation as a substitute”,

and we should expect to see it. Why do we not see it in this Bill?

My wife, who is chairman of a number of things, objects to “chair” as “furniturism”. She likes to be referred to as a person and not a thing.

I respect the noble Lord’s point. I did not make a specific proposal; I simply asked why the Bill was framed in circumstances that are not those required by the Office of the Parliamentary Counsel.

Moving on, Amendment 288A, which addresses the issue of multiple characteristics, is welcome. I am grateful to the Minister for it. However, it is a rather odd solution to what should be a very straightforward question. We have the amendment—which, as I said, we welcome—because it was pointed out that the new overarching objective for this Bill that has been brought forward by government amendment refers to issues affecting those who have a characteristic. It uses the word “characteristic” without qualification, although I think most of us who have been involved in these debates and discussions realise that this is an oblique reference to the Equality Act 2010 and that, although they are not set out in the Bill, the characteristics concerned are probably those that are protected under the Equality Act. I think the Minister has some problem with the Equality Act, because we have crossed swords on it before, but we will not go back into that.

In referencing “a characteristic”, which is perfectly proper, we did not realise—but it has been pointed out—that under the Interpretation Act it is necessary to recall that in government legislation when the singular is mentioned it includes the plural unless it is specifically excluded. So we can assume that when references are made to “a characteristic”, they do in fact mean “characteristics”. Therefore, by logic, moving forward to the way to which it is referred in the Bill, when a person is referred to as having “a characteristic” it can also be assumed that the reference in the Bill applies to them having more than one characteristic.

However, grateful as I am to the Minister for bringing forward these amendments, which we accept, this is not quite the point that we were trying to get across. I invite the Minister, when he comes to respond, to explain a little more about the logic behind what I will propose. We are fairly convinced—as I think are most people who have been involved in these discussions—that social media companies’ form of operation, providing the materials and service that we want, is gendered. I do not think there is any doubt about that; everybody who has spoken in this debate has at some stage pointed out that, in many cases, those with protected characteristics, and women and girls in particular, are often picked on and singled out. A pile-on—the phrase used to mean the amplification that comes with working on the internet—is a very serious concern. That may change; it may just be a feature of today’s world and one day be something that does not happen. However, at the moment, it is clearly the case that if one is in some way characterised by a protected characteristic, and you have more than one of them, you tend to get more attention, aggravation and difficulty in your social media engagement. The evidence is so clear that we do not need to go into it.

The question we asked in Committee, and which we hoped we would get a response to, was whether we should always try to highlight the fact that where we are talking about people with more than one characteristic, it is the fact that there is a combination, not that it is a plural, that is the matter. Being female and Jewish, which has been discussed several times from the Dispatch Box by my noble friend Lady Merron and others, seems to be the sort of combination of characteristics which causes real difficulties on the internet for the people who have them. I use that only as one example; there are others.

If that is the case then it would have been nice to have seen that specifically picked up, and my original drafting of the amendment did that. However, we have accepted the Government’s amendment to create the new overarching objective, and I do not want to change it at this stage—we are past that debate. But I wonder whether the Minister, when he comes to respond, could perhaps as a grace note explain that he accepts the point that it is the doubling or tripling of the characteristics, not the plurality, that matters.

Moving back to the clauses that have been raised by others speaking in this debate, and who have made points that need to be responded to, I want to pick up on the point made by the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Kidron, about the need for some form of engagement between domestic regulators if we are going to get the best possible solution to how the internet is regulated as we go forward. We have never said that there had to be a new super-regulator and we never intended that there should be powers taken to change the way in which we do this. However, some form of co-operation, other than informal co-operation, is almost certainly going to be necessary. We do not want to subtract from where we are in relation to how our current regulators operate—they seem to be working well—but we worry that the legal powers and support that might be required in order to do that are not yet in place or, if they are in place, are based on somewhat archaic and certainly not modern-day regulatory practice.

Is this something that the committees of the Houses might consider? Perhaps when we come to other amendments around this, that is something we might pick up, because I think it probably needs further consideration away from the Bill in order to get the best possible solution. That is particularly true given, as the noble Lord, Lord Clement-Jones, says, so many of these regulators will now have experience of working together and might be prepared to share that in evidence or in appearances before such a committee.

Finally, I refer to the very good discussion we have had about Amendment 186A, which was introduced by the noble Lord, Lord Moylan. Like many people who received his initial circulation of his draft amendment, I was struck by why on earth I had not thought of that myself. It is a good and obvious move that we should think a little more about. It probably needs a lot more thought about the concerns about the unintended consequences that might arise from it before we move forward on it, and I take the points made by the noble Lord, Lord Allan, about that, but I hope that the Minister will respond positively to it and that it is perhaps something we can pick up in future Bills.

My Lords, let me add to this miscellany by speaking to the government amendments that stand in my name as part of this group. The first is Amendment 288A, which we mentioned on the first group of amendments on Report because it relates to the new introductory clause, Clause 1, and responds to the points raised by the noble Lord, Lord Stevenson of Balmacara. I am very happy to say again that the Government recognise that people with multiple and combined characteristics suffer disproportionately online and are often at greater risk of harm. This amendment therefore adds a provision in the new interpretation clause, Clause 1, to put beyond doubt that all the references to people with “a certain characteristic” throughout the Bill include people with a combination of characteristics. We had a good debate about the Interpretation Act 1978, which sets that out, but we are happy to set it out clearly here.

In his Amendment 186A, my noble friend Lord Moylan seeks to clarify a broader issue relating to consumer rights and online platforms. He got some general support—certainly gratitude—for raising this issue, although there was a bit of a Committee-style airing of it and a mixture of views on whether this is the right way or the right place. The amendment seeks to make it clear that certain protections for consumers in the Consumer Rights Act 2015 apply when people use online services and do not pay for them but rather give up their personal data in exchange. The Government are aware that the application of the law in that area is not always clear in relation to free digital services and, like many noble Lords, express our gratitude to my noble friend for highlighting the issue through his amendment.

We do not think that the Bill is the right vehicle for attempting to provide clarification on this point, however. We share some of the cautions that the noble Lord, Lord Allan of Hallam, raised and agree with my noble friend Lady Harding of Winscombe that this is part of a broader question about consumer rights online beyond the services with which the Bill is principally concerned. It could be preferable that the principle that my noble friend Lord Moylan seeks to establish through his amendment should apply more widely than merely to category 1 services regulated under the Bill. I assure him that the Bill will create a number of duties on providers which will benefit users and clarify that they have existing rights of action in the courts. We discussed these new protections in depth in Committee and earlier on Report. He drew attention to Clause 65(1), which puts a requirement on all services, not just category 1 services, to include clear and accessible provisions in their terms of service informing users about their right to bring a claim for breach of contract. Therefore, while we are grateful, we agree with noble Lords who suggested that this is a debate for another day and another Bill.

Amendment 191A from the noble Baroness, Lady Kidron, would require Ofcom to issue guidance for coroners and procurators fiscal to aid them in submitting requests to Ofcom to exercise its power to obtain information from providers about the use of a service by a deceased child. While I am sympathetic to her intention, I do not think that her amendment is the right answer. It would be inappropriate for an agency of the Executive to issue guidance to a branch of the judiciary. As I explained in Committee, it is for the Chief Coroner to provide detailed guidance to coroners. This is written to assist coroners with the law and their legal duties and to provide commentary and advice on policy and practice.

The amendment tabled by the noble Baroness cuts across the role of the Chief Coroner and risks compromising the judicial independence of the coroner, as set out in the Constitutional Reform Act 2005. As she is aware, the Chief Coroner has agreed to consider issuing guidance to coroners on social media and to consider the issues covered in the Bill. He has also agreed to explore whether coroners would benefit from additional training, with the offer of consultation with experts including Ofcom and the Information Commissioner’s Office. I suggest that the better approach would be for Ofcom and the Information Commissioner’s Office to support the Chief Coroner in his consideration of these issues where he would find that helpful.

I agree with the noble Lord, Lord Allan, that coroners must have access to online safety expertise given the technical and fast-moving nature of this sector. As we have discussed previously, Amendment 273 gives Ofcom a power to produce a report dealing with matters relevant to an investigation or inquest following a request from a coroner which will provide that expertise. I hope that this reassures the noble Baroness.

I understand the report on a specific death, which is very welcome and part of the regime as we all see it. The very long list of things that the coroner may not know that they do not know, as I set out in the amendment, is the issue which I and other noble Lords are concerned about. If the Government could find a way to make that possible, I would be very grateful.

We are keen to ensure that coroners have access to the information and expertise that they need, while respecting the independence of the judicial process to decide what they do not know and would like to know more about and the role of the Chief Coroner there. It is a point that I have discussed a lot with the noble Baroness and with my noble friend Lady Newlove in her former role as Victims’ Commissioner. I am very happy to continue doing so because it is important that there is access to that.

The noble Lord, Lord Stevenson, spoke to the amendments tabled by the noble Baroness, Lady Merron, about supposedly gendered language in relation to Clauses 141 and 157. As I made clear in Committee, I appreciate the intention—as does Lady Deben—of making clear that a person of either sex can perform the role of chairman, just as they can perform the role of ombudsman. We have discussed in Committee the semantic point there. The Government have used “chairman” here to be consistent with terminology in the Office of Communications Act 2002. I appreciate that this predates the Written Ministerial Statement which the noble Lord cited, but that itself made clear that the Government at the time recognised that in practice, parliamentary counsel would need to adopt a flexible approach to this change—for example, in at least some of the cases where existing legislation originally drafted in the former style is being amended.

The noble Lord may be aware of a further Written Ministerial Statement, made on 23 May last year, following our debates on gendered language on another Bill, when the then Lord President of the Council and Leader of the House of Commons said that the Office of the Parliamentary Counsel would update its drafting guidance in light of that. That guidance is still forthcoming. However, importantly, the term here will have no bearing on Ofcom’s decision-making on who would chair the advisory committees. It must establish that this could indeed be a person of either sex.

Amendment 253 seeks to enable co-operation, particularly via information-sharing, between Ofcom and other regulators within the UK. I reassure noble Lords that Section 393 of the Communications Act 2003 already includes provisions for sharing information between Ofcom and other regulators in the UK.

As has been noted, Ofcom already co-operates effectively with other domestic regulators. That has been strengthened by the establishment of the Digital Regulation Co-operation Forum. By promoting greater coherence, the forum helps to resolve potential tensions, offering clarity for people and the industry. It ensures collaborative work across areas of common interest to address complex problems. Its outputs have already delivered real and wide-ranging impacts, including landmark policy statements clarifying the interactions between digital regulatory regimes, research into cross-cutting issues, and horizon-scanning activities on new regulatory challenges. We will continue to assess how best to support collaboration between digital regulators and to ensure that their approaches are joined up. We therefore do not think that Amendment 253 is necessary.

My Lords, the Minister has not stated that there is a duty to collaborate. Is he saying that that is, in fact, the case in practice?

Yes, there is a duty, and the law should be followed. I am not sure whether the noble Lord is suggesting that it is not—

My Lords, the Minister is saying that, in practice, there is a kind of collaboration between regulators and that there is a power under the Communications Act, but is he saying that there is any kind of duty on regulators to collaborate?

If I may, I will write to the noble Lord setting that out; he has lost me with his question. We believe, as I think he said, that the forum has added to the collaboration in this important area.

The noble Baroness, Lady Finlay, raised important questions about avatars and virtual characters. The Bill broadly defines “content” as

“anything communicated by means of an internet service”,

meaning that it already captures the various ways through which users may encounter content. In the metaverse, this could therefore include things such as avatars or characters created by users. As part of the user-to-user services’ risk assessments, providers will be required to consider more than the risk in relation to user-generated content, including aspects such as how the design and operation of their services, including functionality and how the service is used, might increase the risk of harm to children and the presence of illegal content. A user-to-user service will need to consider any feature which enables interaction of any description between users of the service when carrying out its risk assessments.

The Bill is focused on user-to-user and search services, as there is significant evidence to support the case for regulation based on the risk of harm to users and the current lack of regulatory and other accountability in this area. Hosting, sharing and the discovery of user-generated content and activity give rise to a range of online harms, which is why we have focused on those services. The Bill does not regulate content published by user-to-user service providers themselves; instead, providers are already liable for the content that they publish on their services themselves, and the criminal law is the most appropriate mechanism for dealing with services which publish illegal provider content.

The noble Baroness’s Amendment 275A seeks to require Ofcom to produce a wide-ranging report of behaviour facilitated by emerging technologies. As we discussed in Committee, the Government of course agree that Ofcom needs continually to assess future risks and the capacity of emerging technologies to cause harm. That is why the Bill already contains provisions which allow it to carry out broad horizon scanning, such as its extensive powers to gather information, to commission skilled persons’ reports and to require providers to produce transparency reports. Ofcom has already indicated that it plans to research emerging technologies, and the Bill will require it to update its risk assessments, risk profiles and codes of practice with the outcomes of this research where relevant.

As we touched on in Committee, Clause 56 requires regular reviews by Ofcom into the incidence of content that is harmful to children, and whether there should be changes to regulations setting out the kinds of content that are harmful to children. In addition, Clause 143 mandates that Ofcom should investigate users’ experience of regulated services, which are likely to cover user interactions in virtual spaces, such as the metaverse and those involving content generated by artificial intelligence.

I reiterate that platforms on which user-generated interactions take place are in scope of the Bill. That includes the metaverse as well as other extended reality services which have been raised by a number of noble Lords as an area of concern. In Committee, the noble Baroness, Lady Finlay, tabled a similar amendment in relation to real-world physical crimes, such as sexual assault. Although her present amendment pertains to the regulatory framework, I reassure her and all noble Lords that criminal offences are drafted so as to avoid, where possible, specifying any medium or technology through which they might be committed so that they too are future-proofed. Many current criminal offences can therefore be committed and prosecuted regardless of whether the behaviour is conducted online or offline.

The report that the noble Baroness seeks through this amendment would be a broad expansion of Ofcom’s oversight responsibilities to services that are not in scope of the Bill. As a result, I am afraid I cannot commit to taking that forward in relation to this Bill but I am very happy to keep discussing the issue with her more broadly, as is my noble friend Lord Camrose, as a Minister at the Department for Science, Innovation and Technology. I hope that provides her with sufficient reassurance to not press her amendment today.

I am most grateful to the Minister; perhaps I could just check something he said. There was a great deal of detail and I was trying to capture it. On the question of harms to children, we all understand that the harms to children are viewed more extensively than harms to others, but I wondered: what counts as unregulated services? The Minister was talking about regulated services. What happens if there is machine-generated content which is not generated by any user but by some random codes that are developed and then randomly incite problematic behaviours?

I am happy to provide further detail in writing and to reiterate the points I have made as it is rather technical. Content that is published by providers of user-to-user services themselves is not regulated by the Bill because providers are liable for the content they publish on the services themselves. Of course, that does not apply to pornography, which we know poses a particular risk to children online and is regulated through Part 5 of the Bill. I will set out in writing, I hope more clearly, for the noble Baroness what is in scope to reassure her about the way the Bill addresses the harms that she has rightly raised.

My Lords, this has indeed been a wide-ranging and miscellaneous debate. I hope that since we are considering the Bill on Report noble Lords will forgive me if I do not endeavour to summarise all the different speeches and confine myself to one or two points.

The first is to thank the noble Baroness, Lady Kidron, for her support for my amendment but also to say that having heard her argument in favour of her Amendment 191A, I think the difference between us is entirely semantic. Had she worded it so as to say that Ofcom should be under a duty to offer advice to the Chief Coroner, as opposed to guidance to coroners, I would have been very much happier with it. Guidance issued under statute has to carry very considerable weight and, as my noble friend the Minister said, there is a real danger in that case of an arm of the Executive, if you like, or a creature of Parliament—however one wants to regard Ofcom—interfering in the independence of the judiciary. Had she said “advice to the Chief Coroner and whoever is the appropriate officer in Scotland”, that would have been something I could have given wholehearted support to. I hope she will forgive me for raising that quibble at the outset, but I think it is a quibble rather than a substantial disagreement.

On my own amendment, I simply say that I am grateful to my noble friend for the brevity and economy with which he disposed of it. He was of course assisted in that by the remarks and arguments made by many other noble Lords in the House as they expressed their support for it in principle.

I think there is a degree of confusion about what the Bill is doing. There seemed to be a sense that somehow the amendment was giving individuals the right to bring actions in the courts against providers, but of course that already happens because that right exists and is enshrined in Article 65. All the amendment would do is give some balance so that consumers actually had some protections in what is normally, in essence, an unequal contest, which is trying to ensure that a large company enforces the terms and contracts that it has written.

In particular, my amendment would give, as I think noble Lords know, the right to demand repeat performance—that is, in essence, the right to put things right, not monetary compensation—and it would frustrate any attempts by providers, in drafting their own terms and conditions, to limit their own liability. That is of course what they seek to do but the Consumer Rights Act frustrates them in their ability to do so.

We will say no more about that for now. With that, I beg leave to withdraw my amendment.

Amendment 186A withdrawn.

Clause 65: Further duties about terms of service

Amendment 187

Moved by

187: Clause 65, page 62, line 18, leave out from “service” to “down” in line 20 and insert “indicate (in whatever words) that the presence of a particular kind of regulated user-generated content is prohibited on the service, the provider takes”

Member’s explanatory statement

This amendment makes a change to a provision about what the terms of service of a Category 1 service say. The effect of the change is to cover a wider range of ways in which a term of service might indicate that a certain kind of content is not allowed on the service.

My Lords, transparency and accountability are at the heart of the regulatory framework that the Bill seeks to establish. It is vital that Ofcom has the powers it needs to require companies to publish online safety information and to scrutinise their systems and processes, particularly their algorithms. The Government agree about the importance of improving data sharing with independent researchers while recognising the nascent evidence base and the complexities of this issue, which we explored in Committee. We are pleased to be bringing forward a number of amendments to strengthen platforms’ transparency, which confer on Ofcom new powers to assess how providers’ algorithms work, which accelerate the development of the evidence base regarding researchers’ access to information and which require Ofcom to produce guidance on this issue.

Amendment 187 in my name makes changes to Clause 65 on category 1 providers’ duties to create clear and accessible terms of service and apply them consistently and transparently. The amendment tightens the clause to ensure that all the providers’ terms through which they might indicate that a certain kind of content is not allowed on its service are captured by these duties.

Amendment 252G is a drafting change, removing a redundant paragraph from the Bill in relation to exceptions to the legislative definition of an enforceable requirement in Schedule 12.

In relation to transparency, government Amendments 195, 196, 198 and 199 expand the types of information that Ofcom can require category 1, 2A and 2B providers to publish in their transparency reports. With thanks to the noble Lord, Lord Stevenson of Balmacara, for his engagement on this issue, we are pleased to table these amendments, which will allow Ofcom to require providers to publish information relating to the formulation, development and scope of user-to-user service providers’ terms of service and search service providers’ public statements of policies and procedures. This is in addition to the existing transparency provision regarding their application.

Amendments 196 and 199 would enable Ofcom to require providers to publish more information in relation to algorithms, specifically information about the design and operation of algorithms that affect the display, promotion, restriction, discovery or recommendation of content subject to the duties in the Bill. These changes will enable greater public scrutiny of providers’ terms of service and their algorithms, providing valuable information to users about the platforms that they are using.

As well as publicly holding platforms to account, the regulator must be able to get under the bonnet and scrutinise the algorithms’ functionalities and the other systems and processes that they use. Empirical tests are a standard method for understanding the performance of an algorithmic system. They involve taking a test data set, running it through an algorithmic system and observing the output. These tests may be relevant for assessing the efficacy and wider impacts of content moderation technology, age-verification systems and recommender systems.

Government Amendments 247A, 250A, 252A, 252B, 252C, 252D, 252E and 252F will ensure that Ofcom has the powers to enable it to direct and observe such tests remotely. This will significantly bolster Ofcom’s ability to assess how a provider’s algorithms work, and therefore to assess its compliance with the duties in the Bill. I understand that certain technology companies have voiced some concerns about these powers, but I reassure your Lordships that they are necessary and proportionate.

The powers will be subject to a number of safeguards. First, they are limited to viewing information. Ofcom will be unable to remotely access or interfere with the service for any other purpose when exercising the power. These tests would be performed offline, meaning that they would not affect the services’ provision or the experience of users. Assessing systems, processes, features and functionalities is the focus of the powers. As such, individual user data and content are unlikely to be the focus of any remote access to view information.

Additionally, the power can be used only where it is proportionate to use in the exercise of Ofcom’s functions—for example, when investigating whether a regulated service has complied with relevant safety duties. A provider would have a right to bring a legal challenge against Ofcom if it considered that a particular exercise of the power was unlawful. Furthermore, Ofcom will be under a legal obligation to ensure that the information gathered from services is protected from disclosure, unless clearly defined exemptions apply.

The Bill contains no restriction on services making the existence and detail of the information notice public. Should a regulated service wish to challenge an information notice served to it by Ofcom, it would be able to do so through judicial review. In addition, the amendments create no restrictions on the use of this power being viewable to members of the public through a request, such as those under the Freedom of Information Act—noting that under Section 393 of the Communications Act, Ofcom will not be able to disclose information it has obtained through its exercise of these powers without the provider’s consent, unless permitted for specific, defined purposes. These powers are necessary and proportionate and will that ensure Ofcom has the tools to understand features and functionalities and the risks associated with them, and therefore the tools to assess companies’ compliance with the Bill.

Finally, I turn to researchers’ access to data. We recognise the valuable work of researchers in improving our collective understanding of the issues we have debated throughout our scrutiny of the Bill. However, we are also aware that we need to develop the evidence base to ensure that any sharing of sensitive information between companies and researchers can be done safely and securely. To this end, we are pleased to table government Amendments 272B, 272C and 272D.

Government Amendment 272B would require Ofcom to publish its report into researcher access to information within 18 months, rather than two years. This report will provide the evidence base for government Amendments 272C and 272D, which would require Ofcom to publish guidance on this issue. This will provide valuable, evidence-based guidance on how to improve access for researchers safely and securely.

That said, we understand the calls for further action in this area. The Government will explore this issue further and report back to your Lordships’ House on whether further measures to support researchers’ access to data are required—and if so, whether they could be implemented through other legislation, such as the Data Protection and Digital Information Bill. I beg to move.

My Lords, Amendment 247B in my name was triggered by government Amendment 247A, which the Minister just introduced. I want to explain it, because the government amendment is quite late—it has arrived on Report—so we need to look in some detail at what the Government have proposed. The phrasing that has caused so much concern, which the Minister has acknowledged, is that Ofcom will be able to

“remotely access the service provided by the person”.

It is those words—“remotely access”—which are trigger words for anyone who lived through the Snowden disclosures, where everyone was so concerned about remote access by government agencies to precisely the same services we are talking about today: social media services.

So I hope the House will forgive me for teasing out why this is important and why we need extensive safeguards. This is non-trivial. If you are out there running a service, the idea of a government agency having remote access to your systems is a big deal, and the fact that this has come so late compounds that fear because it feels like it is being snuck in.

Ofcom, as I am sure it will remind us, is independent, but in the last debate it was referred to as part of the UK Executive. We cannot have it both ways. I see the chairman of Ofcom shaking his head at that, but we have just had a debate at the heart of which was the notion that this part of the UK Executive would give guidance to part of the UK judiciary. What is sauce for the goose is sauce for the gander. Here, the concern is that Ofcom would be seen as part of the UK Executive having remote access to social media services run by independent companies; I think your Lordships can see why that triggers things.

We need to establish in this debate that what the Government have in mind for Ofcom—this independent regulator—is utterly different from what might be the case with, for example, a security service under the terms of investigatory powers legislation. On the face of it, it looks similar, so it is important that, if it is different as the Minister has started, and I think will continue, to argue, we establish exactly why it is different and how we can be confident that is different. Amendment 247B in my name and that of my noble friend was intended to be helpful to the Government as one way of trying to establish why this is different, by placing some limitations on the Bill.

There are two risks inherent in this notion of remote access. The first is that Ofcom is overintrusive. It has an oversight role, but we are not expecting Ofcom to run our social media services; we expect it to oversee social media services that run themselves. Clearly, remote access, if used in an overbearing way, could be excessively intrusive in relation to those services being able to do what they do. In one version of remote access, which I think the Minister has tried to tease out, it is an offline exercise done occasionally to check something in a quasi-academic way; in another form, Ofcom sits there with a dashboard of what is going on in these systems, just as the Government like to do in their own public services with health and other things. Ofcom with a dashboard looking at what is happening in real time is quite different, and I think would be seen as overbearing and excessively intrusive. I hope the Minister will be able to provide further assurances that that is not what they have in mind.

The second risk is that the access is used for purposes other than simply Ofcom’s purposes. I am certainly not a conspiracy theorist and, perhaps unusually in my community of tech people, I quite admire the people who have only first names and live in Cheltenham, because I think what they do does keep us safe. That is what we pay them to do: to be creative and find creative ways to access data under lawful authority, et cetera, fully respecting human rights. I have confidence that those I have met do that and they do a great job; but we pay them to be creative and find access to data, not to put up with barriers. A spy is gonna spy. If they know that there is a form of access to data, of course, their job is to look at whether that would be useful to them.

My understanding—not as a conspiracy theory but as a matter of fact as to how the law works—is that, under investigatory powers rules, they can issue secret warrants, appropriately signed off, to pretty much anyone to access data. The recipients of those warrants have to execute them and, under penalty of prosecution themselves, are not able to tell anyone they received the warrant. Ofcom is not exempt from that. That is a fact, and we should recognise it; so, were Ofcom to receive an appropriate warrant for data, my understanding is that it would not have a way to say no and would not even be able to tell us about it. The best way to protect against that—to protect against temptation for James from Cheltenham, who is doing his job—is to make sure that remote access does not include anything that would be remotely useful to the security services. The way that we will be able to understand that is through transparency.

The Minister began his comments by saying that transparency and accountability were critical, and that maxim also applies here. We also want to protect against Ofcom’s own overreach and against any downstream use of that data. It is essential, therefore, that we understand in quite a lot of detail exactly what this remote access does and does not entail, so we can make our minds up about whether this piece is being used in an appropriate way.

I hope that the Minister can build on assurances which he very helpfully started to give at the beginning of the debate about this information notice process. He said that there was nothing secret about the information notices. Again, I hope that we can reinforce that any platform that is concerned that remote access that it is being asked to provide is inappropriate can tell us all about it and, as the Minister said, challenge that. I hope also that individual complainants and the harshest critics of the Government and of the security services—and a lot of people in this world worry about these things who, when they read this debate or look at the amendment, will assume the worst—can see exactly what remote access has and has not been made available. Then also I hope that, as individual users—because it is all about our privacy, as social media users of one form or another—we will know that, when we hand our data over to the social media service, which correctly under the terms of this legislation is required to give Ofcom access and keep us safe, we will know exactly what that access entails and that it does not go further than we set out in the legislation.

The transparency piece is critical. Can the Minister say that the information notices in relation to remote access will never be withheld? It is an utterly different world from the investigatory powers world, where there are good reasons where things have to be kept secret. If the Minister can say that in that world nothing is secret about the fact of remote access, and if anybody who has concerns can get the information that they need to understand whether those concerns are genuine, or whether something much more benign is happening, that would be extremely helpful. The Minister mentioned judicial review by platforms. I get that but, if a platform feels that Ofcom, the regulator, is behaving in an overbearing way, I remain a little concerned that judicial review is quite a slow and painful process. As I understand it, it is more about whether it was legally correct to give the order than perhaps whether the substance of the order was appropriate.

We still need to know that the checks and balances are in place. If Ofcom, under a future leadership—I am sure not under its current leadership—were to take it upon itself to want to set up a dashboard to look at what was happening in every social media company in real time, and were taken by that spirit of madness at some future date, I hope that the companies would be able to raise concerns about that, because it is not what we intend to happen in this Bill. I hope that they would be able to do that in a more straightforward process than in a lengthy judicial review.

The Minister has a clear idea of the kind of reassurances that we are looking for. He teased out some of them in his opening comments, and I hope that he can make them even more strongly in his closing remarks.

My Lords, the noble Lord, Lord Allan of Hallam, hinted at the fact that there have been a plethora of government amendments on Report and, to be honest, it has been quite hard fully to digest most of them, let alone scrutinise them. I appreciate that the vast majority have been drawn up with opposition Lords, who might have found it a bit easier. But some have snuck in and, in that context, I want to raise some problems with the amendments in this group, which are important. I, too, am especially worried about that government amendment on facilitating remote access to services and equipment used to buy services. I am really grateful to the noble Lords, Lord Allan of Hallam and Lord Clement-Jones, for tabling Amendment 247B, because I did not know what to do—and they did it. At least it raises the issue to the level of it needing to be taken seriously.

The biggest problem that I had when I originally read this provision was that facilitating remote access to services, and as yet undefined equipment used by a service, seems like a very big decision, and potentially disproportionate. It certainly has a potential to have regulatory overreach, and it creates real risks around privacy. It feels as though it has not even been flagged up strongly enough by the Government with regard to what it could mean.

I listened to what the Minister said, but I still do not fully understand why this is necessary. Have the Government considered the privacy and security implications that have already been discussed? Through Amendment 252A, the Government now have the power to enter premises for inspection—it rather feels as if there is the potential for raids, but I will put that to one side. They can go in, order an audit and so on. Remote access as a preliminary way to gather information seems heavy-handed. Why not leave it as the very last thing to do in a dialogue between Ofcom and a given platform? We have yet to hear a proper justification of why Ofcom would need this as a first-order thing to do.

The Bill does not define exactly what

“equipment used by the service”

means. Does it extend to employees’ laptops and phones? If it extends to external data centres, have the Government assessed the practicalities and security impact of that and the substantial security implications, as have been explained, for the services, the data centre providers and those of us whose data they hold?

I am also concerned that this will necessitate companies having very strongly to consider internal privacy and security controls to deal with the possibility of this, and that this will place a disproportionate burden on smaller and mid-sized businesses that do not have the resources available to the biggest technology companies. I keep raising this because in other parts of government there is a constant attempt to say that the UK will be the centre of technological innovation and that we will be a powerhouse in new technologies, yet I am concerned that so much of the Bill could damage that innovation. That is worth considering.

It seems to me that Amendment 252A on the power to observe at the premises ignores decentralised projects and services—the very kind of services that can revolutionise social media in a positive way. Not every service is like Facebook, but this amendment misses that point. For example, you will not be able to walk into the premises of the UK-based Matrix, the provider of the encrypted chat service Element that allows users to host their own service. Similarly, the non-profit Mastodon claims to be the largest decentralised social network on the internet and to be built on open-web standards precisely because it does not want to be bought or owned by a billionaire. So many of these amendments seem not to take those issues into account.

I also have a slight concern on researcher access to data. When we discussed this in Committee, the tone was very much—as it is in these amendments now—that these special researchers need to be able to find out what is going on in these big, bad tech companies that are trying to hide away dangerous information from us. Although we are trying to ensure that there is protection from harms, we do not want to demonise the companies so much that, every time they raise privacy issues or say, “We will provide data but you can’t access it remotely” or “We want to be the ones deciding which researchers are allowed to look at our data”, we assume that they are always up to no good. That sends the wrong message if we are to be a tech-innovative country or if there is to be any working together.

My final point is to be a bit more positive. I am very keen on the points made by the Minister on the importance of transparency in algorithms, particularly in Amendments 196 and 199. This raises an important point. These amendments are intended to mean that providers of user-to-user services and search services would have to include in their transparency report details about algorithms, so that we can see how they work, and these amendments particularly relate to illegal content and content that is harmful to children. I should like that being understood more broadly, because for me there is constant tension where people do not know what the algorithms are doing. When content is removed, deboosted, or whatever, they do not know why. More transparency there would be positive.

The Minister knows this, because I have written to him on the subject, but many women, for example, are regularly being banned from social media for speaking out on sex-based rights, and gender-critical accounts are constantly telling me and are discussing among themselves that they have been shadow banned: that the algorithms are not allowing them to get their points over. This is, it is alleged, because of the legacy of trans activists controlling the algorithms.

Following on from the point of the noble Lord, Lord Allan of Hallam, there is always a danger here of people being conspiratorial, paranoid and thinking it is the algorithms. I made the point in an earlier discussion that sometimes you might just put up a boring post and no one is interested, but you imagine someone behind the scenes. But we know that Facebook continues to delete posts that states that men cannot be women, for example.

I would like this to be demystified, so the more Ofcom can ask the companies to demystify their algorithmic decisions and the more users can be empowered to know about it, the better for all of us. That is the positive bit of the amendments that I like.

My Lords, the business of the internet is data. Whether it is a retail business, a media business or any other kind of business, the internet is all about data. The chiefs of our internet companies know more about noble Lords than anyone else—more than any government agency, your doctor and almost anyone—because the number of data points that big internet companies have on people is absolutely enormous, and they use them to very great effect.

Some of those effects are entirely benign. I completely endorse what the noble Baroness, Lady Fox, said. As a champion of innovation and business, I totally recognise the good that is done by the world’s internet companies to make our lives richer, create jobs and improve the world, but some of what they do is not good. Either inadvertently or by being passive enablers of harm, internet companies have been responsible for huge societal harms. I do not want to go through the full list, but when I think about the mental health of our teenagers, the extremism in our politics, the availability of harmful information to terrorists and what have you, there is a long catalogue of harms to which internet companies have contributed. We would be naive if we did not recognise.

However, almost uniquely among commercial businesses, internet companies guard access to that data incredibly jealously. They will not let you peek in and share their insights. I know from my experience in the health field that we work very closely with the pharmaceutical industry—there is a whole programme of pharmacovigilance that any pharma company has to participate in in order to explain, measure and justify the good and disbenefits of its medicines. We have no similar programme to pharmacovigilance for the tech industry. Instead, we are completely blind. Policy makers, the police and citizens are flying blind when it comes to the data that is held on us on both an individual and a demographic basis. That is extremely unusual.

That is why I really welcome my noble friend’s amendments that give Ofcom what seems to me to be extremely proportionate and thoughtful powers in order to look into this data, because without it, we do not know what is going on in this incredibly important part of our lives.

The role that researchers, including academic, civil society and campaigning researchers, play in helping Ofcom, policymakers and politicians to arrive at sensible, thoughtful and proportionate policy is absolutely critical. I pay enormous tribute to them; I am grateful to those noble Lords who have also done so. I am extremely grateful to my noble friend the Minister for his amendments on this subject, Amendments 272B and 272C, which address the question of giving researchers better access to some of this data. They would reduce the timeline for the review on data from 24 months to 18 months, which would be extremely helpful, and would changing “may” to “must”, which represents an emphatic commitment to the outcome of this review.

However, issues remain around the question of granting access to data for researchers. What happens to the insights from the promised review once it is delivered? Where are the powers to deliver the review’s recommendations? That gap is not currently served by the government amendments, which is why I and the noble Lord, Lord Clement-Jones, have tabled Amendments 237ZA, 237DB, 262AA and 272AB. Their purpose is to put in the Bill reasonable, proportionate powers to bring access to data for researchers along the lines that the research review will recommend.

The feelings on this matter are extremely strong because we all recognise the value here. We are concerned that any delay may completely undermine this sector. As we debated in Committee, there is a substantial and valuable UK sector in this research area that is likely to move lock, stock and barrel to other countries where these kinds of powers may be in place; for instance, in EU or US legislation. The absence of these powers will, I think, leave Britain in the dark and competitively behind other countries, which is why I want to push the Minister hard on these amendments. I am grateful for his insight that this matter is something that the Government may look to in future Bills, but those Bills are far off. I would like to hear from him what more he could do to try to smooth the journey from this Bill and this review to any future legislation that comes through this House in order to ensure that this important gap is closed.

My Lords, Amendments 270 and 272 are in my name; I thank the noble Lord, Lord Stevenson of Balmacara, for adding his name to them. They are the least controversial amendments in this group, I think. They are really simple. Amendment 270 would require Ofcom’s research about online interests and users’ experiences of regulated services under Clause 143 to be broken down by nation, while Amendment 272 relates to Clause 147 and would require Ofcom’s transparency reports also to be broken down in a nation-specific way.

These amendments follow on from our debates on devolution in Committee. Both seek to ensure that there is analysis of users’ online experiences in the different nations of the UK, which I continue to believe is essential to ensuring that the Bill works for the whole of the UK and is both future-proofed—a word we have all used lots—and able to adapt to different developments across each of the four nations. I have three reasons why I think these things are important. The first concerns the interplay between reserved and devolved matters. The second concerns the legal differences that already exist across the UK. The third concerns the role of Ofcom.

In his much-appreciated email to me last week, the Minister rightly highlighted that internet services are a reserved matter and I absolutely do not wish to impose different standards of regulation across the UK. Regarding priority offences, I completely support the Government’s stance that service providers must treat any content as priority illegal content where it amounts to a criminal offence anywhere in the UK regardless of where that act may have taken place or where the user is. However, my amendments are not about regulation; they are about research and transparency reporting, enabling us to understand the experience across the UK and to collect data—which we have just heard, so powerfully, will be more important as we continue.

I am afraid that leaving it to Ofcom’s discretion to understand the differences in the online experiences across the four nations over time is not quite good enough. Many of the matters we are dealing with in the online safety space—such as children, justice, police and education—are devolved. Government policy-making in devolved areas will increasingly rely on data about online behaviours, harms and outcomes. These days, I cannot imagine creating any kind of public policy without understanding the online dimension. There are areas where either the community experience and/or the policy approach is markedly different across the nations—take drug abuse, for example. No data means uninformed policy-making or flying blind, as my noble friend Lord Bethell has just said. But how easy will it be for the devolved nations to get this information if we do not specify it in the Bill?

In many of the debates, we have already heard of the legal differences across the four nations, and I am extremely grateful to the noble and learned Lord, Lord Hope of Craighead, who is not in his place, the noble Lord, Lord Stevenson of Balmacara, and the Minister for supporting my amendment last week when I could not be here. I am terribly sorry. I was sitting next to the noble Viscount, Lord Camrose, at the time. The amendment was to ensure that there is a legal definition of “freedom of expression” in the Bill that can be understood by devolved Administrations across the UK.

The more I look at this landscape, the more challenges arise. The creation of legislation around intimate abuse images is a good example. The original English legislation was focused on addressing the abusive sharing of intimate images after a relationship breakdown. It required the sharing to have been committed with the intent to cause harm, which has a very easy defence: “I did not mean to cause any harm”. The Scottish legislation, drafted slightly later, softened this to an intent to cause harm or being reckless as to whether harm was caused, which is a bit better because you do not need to prove intent. Now the English version is going to be updated in the Bill to create an offence simply by sharing, which is even better.

Other differences in legislation have been highlighted, such as on deepfakes and upskirting. On the first day of Report, the noble Baroness, Lady Kennedy of The Shaws, highlighted a difference in the way cyberflashing offences are understood in Northern Ireland. So the issue is nuanced, and the Government’s responses change as we learn about harmful behaviours in practice. Over time, we gradually see these offences refined as we learn more about how technology is used to abuse in practice. The question really is: what will such offences look like online in five years’ time? Will the user experience and government policy across the four nations be the same? I will not pretend to try to answer that, but to answer it we will need the data.

I am concerned that the unintended consequences of the Bill in the devolved Administrations have not been fully appreciated or explored. Therefore, I am proposing a belt and braces approach in the reporting regime. When we come to post-legislative scrutiny, with reports being laid before this Parliament and the devolved Administrations in Edinburgh, Cardiff and Belfast—if there is one—we will want to have the data to understand the online experiences of each nation. That is why my very little amendments are seeking to ensure that we capture this experience and that is why it is so important.

On Ofcom—my final point—I know the Minister has every confidence in Ofcom and rightly points out that it has a strong track record of producing data that is representative of people across the UK. I agree. Ofcom already does a great deal of research which is broken down into nation-specific reporting, particularly in broadcasting, but most of this is directly in relation to its obligations under the Communications Act and the BBC charter, which contains a specific purpose:

“To reflect, represent and serve the diverse communities of all of the United Kingdom’s nations and regions and, in doing so, support the creative economy across the United Kingdom”.

From my Scottish point of view, I am arguing—and I know that the Scottish advisory committee of Ofcom would agree with me—that its research and Ofcom’s reports, such as the annual Media Nations report, are linked to the way legislation is set up and then implemented by Ofcom.

Having ensured this for broadcasting and communications, why would we not want to do this for online safety? At last Tuesday’s meeting of the Communications and Digital Committee, on which I serve, we took evidence on a huge range of subjects from my noble friend the chairman of Ofcom and Dame Melanie Dawes. The noble Lord, Lord Grade, used all the usual words to describe this Bill—“complex”, “challenging”—and pointed out that it is a new law in a novel area, but he stressed that Ofcom comes to decisions outside the political arena based on research and evidence.

My amendments just remind Ofcom that we need this research and evidence by nation. This Bill is so large, so wide-ranging, that Ofcom’s remit and functions are having to expand hugely to deliver this new regime. The noble Baroness, Lady Fox, reminded us last week that what Ofcom does comes from the legislation. It does not do things off its own bat. Ofcom already has a huge challenge on its hands with this Bill, and experience tells us that it is likely to deliver only what is specified—the “must do” bits, not the “nice to do” extras. There may be no differences in the online experiences across the nations of the UK, but the only way we can be sure is if we have the data for each nation, the transparency and all the research reporting. I urge the Minister to take my amendment seriously.

My Lords, I think that was a very good speech from the noble Baroness, partly because I signed her amendment and support it and also because I want to refer back to the points made earlier by the noble Lord, Lord Bethell, about research. I am speaking from the Back Benches here because some of what I say may not have been cleared fully with my colleagues, but I am hoping that they will indulge me slightly. If I speak from this elevated position, perhaps they will not hear me so well.

To deal with noble Lords in the order in which they spoke, I support the amendments tabled by the noble Lord, Lord Bethell, in relation to having a bit more activity in relation to the area where we have very good change of government policy in relation to access by researchers to data, and I am very grateful to the Minister for doing that. The noble Lord, Lord Bethell, made the point that there is perhaps a bigger question and a bigger story than can be done just by simply bringing forward the time of the report and changing “may” to “must”, although I always think “may” to “must” changes are important because they reflect a complete change of approach and I hope action will follow. The question about access by those who need data in order to complete their research is crucial to the future success of these regimes. That plays back to what the noble Baroness, Lady Fraser, was saying, which is that we need to have this not just in aggregate form but broken down and stratified so that we can really interrogate where this information is showing the gaps, the opportunities, the changes that are needed and the successes, if there are any, in the way in which we are working.

I support the amendments tabled by the noble Lord, Lord Bethell, because I think this is not so much a question of regulation or lawmaking in this Bill but of trying to engender a change of culture about the way in which social media companies operate. It will need all of us, not just the Government or the regulatory bodies, to continue to press this because this is a major sea change in what they have been doing until now. They are quite rightly protective of their business interests and business secrets, but that is not the same when the currency is data and our data is being used to create change and opportunity and their profits are based on exploiting our resources.

I go back to the points made by the noble Lord, Lord Moylan, in his opening amendment today about why consumer rights do not apply when monetary considerations are not being taken into account. Bartering our data in order to obtain benefits from social media companies is not the same as purchasing over the counter at the local shop—we accept that—but times have changed and we are living in a different world. Everything is being bought and sold electronically. Why is consumer law not being moved forward to take account of that so that the rights that are important to that, because they are the same, are being exploited? I leave that for the Minister to come back to if he wishes to do so from the Dispatch Box.

Moving on to the Scottish issues, the amendment, as introduced by the noble Baroness, is about transparency and data, but I think it hides a bigger question which I am afraid affects much of the legislation that comes through this House, which is that very often the devolution impact of changes in the law and new laws that are brought forward is always the last to be thought about and is always tacked on at the end in ways that are often very obscure.

I have one particularly obscure question which I want to leave with the Minister, completely unreasonably, but I think it just about follows on from the amendment we are discussing. It is that, towards the end of the Bill, Clause 53(5)(c) refers to the consent of the Secretary of State or other Minister of the Crown to crimes in Scottish or Northern Irish legislation when they enter the Online Safety Bill regime. This is because, as has been made clear, laws are changing and are already different in Scotland, Wales and Northern Ireland from some of the criminal laws in England and Wales. While that is to be welcomed, as the noble Baroness said, the devolved Administrations should have the right to make sure, in the areas of their control, that they have the laws that are appropriate for the time, but if they are different, we are going to have to live with those across the country in a way that is a bit patchwork. There need to be rules about how they will apply. I think the noble Baroness said that it would be right and proper that a crime committed in one territory is treated within the rules that apply in that territory, but if they are significantly different, we ought at least to understand why that is the case and how that has come about.

As I understand it—I have a note provided by Carnegie UK and it is always pretty accurate about these matters—the Secretary of State can consent to a devolved authority which wants to bring forward a devolved offence and include it in the online safety regime. However, it is not quite clear how that happens. What is a consent? Is it an Order in Council, a regulation, affirmative or negative procedure or primary legislation? We are not told that; we are just told that consent arrangements apply and consent can be given. Normally consents involve legislative authority—in its words, one Parliament speaking to another—and we are all becoming quite aware of the fact that the legislative consent required from Scotland, Northern Ireland or Wales is often not given, yet the UK Parliament continues to make legislation and it applies, so the process works, but obviously it would be much better if the devolved structures were involved and agreed to what was being done. This is different from the normal top-down approach. Where we already have a change in the law or the law is about to be changed in one of the devolved Administrations, how does that become part of the Online Safety Bill regime? I look forward to the Minister’s response. I did not warn him that I was giving him a very difficult question, and he can write if he cannot give the detail today, but we would like to see on the record how this happens.

If we are getting Statements to Parliament from the Secretary of State about provisional changes to the way in which the law applies in the devolved Administrations, are they going to be subject to due process? Will there be engagement with committees? What will happen if a new code is required or a variation in the code is required? Does that require secondary legislation and, if so, will that be done with the consent of the devolved Administration or by this Parliament after a process we are yet to see?

There is a lot here that has not been fleshed out. There are few very easy answers, but it would be useful if we could get that going. I will not go into more detail on the noble Baroness’s point that laws change, but I know that the Law Society of Scotland has briefed that at least one major piece of legislation, the Hate Crime and Public Order (Scotland) Act 2021, does not appear in Schedule 7 as expected. Again, I ask the Minister if he would write to us explaining the background to that.

These are very important issues and they do not often get discussed in the full process of our Bills, so I am glad that the noble Baroness raised them. She cloaked them in what sounded like a very general and modest request, but they reveal quite considerable difficulties behind them.

My Lords, before I talk to the amendments I had intended to address, I will make a very narrow point in support of the noble Baroness, Lady Fraser. About 10 years ago, when I started doing work on children, I approached Ofcom and asked why all its research goes to 24, when childhood finishes at 18 and the UNCRC says that a child needs special consideration. Ofcom said, “Terribly sorry, but this is our inheritance from a marketing background”. The Communications and Digital Committee later wrote formally to Ofcom and asked if it could do its research up to 18 and then from 18 to 24, but it appeared to be absolutely impossible. I regret that I do not know what the current situation is and I hope that, with the noble Lord, Lord Grade, in place it may rapidly change overnight. My point is that the detailed description that the noble Baroness gave the House about why it is important to stipulate this is proven by that tale.

I also associate myself with the remarks of the noble Lord, Lord Allan, who terrified me some 50 minutes ago. I look forward to hearing what will be said.

I in fact rose to speak to government Amendments 196 and 199, and the bunch of amendments on access to data for researchers. I welcome the government amendments to which I added my name. I really am delighted every time the Government inch forward into the area of the transparency of systemic and design matters. The focus of the Bill should always be on the key factor that separates digital media from other forms of media, which is the power to determine, manipulate and orchestrate what a user does next, see how they behave or what they think. That is very different and is unique to the technology we are talking about.

It will not surprise the Minister to hear that I would have liked this amendment to cover the design of systems and processes, and features and functionalities that are not related to content. Rather than labouring this point, on this occasion I will just draw the Minister’s attention to an article published over the weekend by Professor Henrietta Bowden-Jones, the UK’s foremost expert on gambling and gaming addiction. She equates the systems and processes involved in priming behaviours on social media with the more extreme behaviours that she sees in her addiction clinics, with ever younger children. Professor Bowden-Jones is the spokesperson on behavioural addictions for the Royal College of Psychiatrists, and the House ignores her experience of the loops of reward and compulsion that manipulate behaviour, particularly the behaviour of children, at our peril.

I commend the noble Lord, Lord Bethell, for continuing to press the research issue and coming back, even in the light of the government amendment, with a little more. Access to good data about the operation of social media is vital in holding regulated companies to account, tracking the extent of harms, building an understanding of them and, importantly, building knowledge about how they might be sensibly and effectively addressed.

My concern here is that, when making a concession, the Government most often reach for a review at some time in the future. In the case of research, the future is too late. We are at an inflection point right now, at which digital tech may or may not overwhelm our job market and our understanding of what is real and what is not. It has the potential for societal and technological change that is both beneficial and harmful, but at such a scale that it will certainly transform society as we understand it before 18 months or two years—the point at which the review is triggered and then takes place.

I feel passionately that, in the context of where we are now and the game of catch-up we have been playing for the last couple of decades, it should not be left to the companies to decide what is or is not in the public arena. As a minimum, independent research would allow the regulator to better understand the operation of social media platforms. More broadly, it would keep our universities on a level playing field—as a number of noble Lords have commented—and, maybe most importantly, ensure that the regulator, academia and civil society have a seat at the table of the future of tech.

For that reason, I again ask the Government, as a minimum, to accept the shorter date that was proposed or perhaps to think again before Third Reading.

My Lords, I associate myself with my noble friend Lady Fraser of Craigmaddie’s incredibly well-made points. I learned a long time ago that, when people speak very softly and say they have a very small point to make, they are often about to deliver a zinger. She really did; it was hugely powerful. I will say no more than that I wholeheartedly agree with her; thank you for helping us to understand the issue properly.

I will speak in more detail about access to data for researchers and in support of my noble friend Lord Bethell’s amendments. I too am extremely grateful to the Minister for bringing forward all the government amendments; the direction of travel is encouraging. I am particularly pleased to see the movement from “may” to “must”, but I am worried that it is Ofcom’s rather than the regulated services’ “may” that moves to “must”. There is no backstop for recalcitrant regulated services that refuse to abide by Ofcom’s guidance. As the noble Baroness, Lady Kidron, said, in other areas of the Bill we have quite reasonably resorted to launching a review, requiring Ofcom to publish its results, requiring the Secretary of State to review the recommendations and then giving the Secretary of State backstop powers, if necessary, to implement regulations that would then require regulated companies to change.

I have a simple question for the Minister: why are we not following the same recipe here? Why does this differ from the other issues, on which the House agrees that there is more work to be done? Why are we not putting backstop powers into the Bill for this specific issue, when it is clear to all of us that it is highly likely that there will be said recalcitrant regulated firms that are not willing to grant access to their data for researchers?

Before my noble friend the Minister leaps to the hint he gave in his opening remarks—that this should all be picked up in the Data Protection and Digital Information Bill—unlike the group we have just discussed, this issue was discussed at Second Reading and given a really detailed airing in Committee. This is not new news, in the same way that other issues where we have adopted the same recipe that includes a backstop are being dealt with in the Bill. I urge my noble friend the Minister to follow the good progress so far and to complete the package, as we have in other areas.

My Lords, it is valuable to be able to speak immediately after my noble friend Lady Harding of Winscombe, because it gives me an opportunity to address some remarks she made last Wednesday when we were considering the Bill on Report. She suggested that there was a fundamental disagreement between us about our view of how serious online safety is—the suggestion being that somehow I did not think it was terribly important. I take this opportunity to rebut that and to add to it by saying that other things are also important. One of those things is privacy. We have not discussed privacy in relation to the Bill quite as much as we have freedom of expression, but it is tremendously important too.

Government Amendment 247A represents the most astonishing level of intrusion. In fact, I find it very hard to see how the Government think they can get away with saying that it is compatible with the provisions of the European Convention on Human Rights, which we incorporated into law some 20 years ago, thus creating a whole law of privacy that is now vindicated in the courts. It is not enough just to go around saying that it is “proportionate and necessary” as a mantra; it has to be true.

This provision says that an agency has the right to go into a private business with no warrant, and with no let or hindrance, and is able to look at its processes, data and equipment at will. I know of no other business that can be subjected to that without a warrant or some legal process in advance pertinent to that instance, that case or that business.

My noble friend Lord Bethell said that the internet has been abused by people who carry out evil things; he mentioned terrorism, for example, and he could have mentioned others. However, take mobile telephones and Royal Mail—these are also abused by people conducting terrorism, but we do not allow those communications to be intruded into without some sort of warrant or process. It does not seem to me that the fact that the systems can be abused is sufficient to justify what is being proposed.

My noble friend the Minister says that this can happen only offline. Frankly, I did not understand what he meant by that. In fact, I was going to say that I disagreed with him, but I am moving to the point of saying that I think it is almost meaningless to say that it is going to happen offline. He might be able to explain that. He also said that Ofcom will not see individual traffic. However, neither the point about being offline nor the point about not seeing individual traffic is on the face of the Bill.

When we ask ourselves what the purpose of this astonishing power is—this was referred to obliquely to some extent by the noble Baroness, Lady Fox of Buckley—we can find it in Clause 91(1), to which proposed new subsection (2A) is being added or squeezed in subordinate to it. Clause 91(1) talks about

“any information that they”—

that is, Ofcom—

“require for the purpose of exercising, or deciding whether to exercise, any of their online safety functions”.

The power could be used entirely as a fishing expedition. It could be entirely for the purpose of educating Ofcom as to what it should be doing. There is nothing here to say that it can have these powers of intrusion only if it suspects that there is criminality, a breach of the codes of conduct or any other offence. It is a fishing expedition, entirely for the purpose of

“exercising, or deciding whether to exercise”.

Those are the intrusions imposed upon companies. In some ways, I am less concerned about the companies than I am about what I am going to come to next: the intrusion on the privacy of individuals and users. If we sat back and listened to ourselves and what we are saying, could we explain to ordinary people—we are going to come to this when we discuss end-to-end encryption—what exactly can happen?

Two very significant breaches of the protections in place for privacy on the internet arise from what is proposed. First, if you allow someone into a system and into equipment, especially from outside, you increase the risk and the possibility that a further, probably more hostile party that is sufficiently well-equipped with resources—we know state actors with evil intent which are so equipped—can get in through that or similar holes. The privacy of the system itself would be structurally weakened as a result of doing this. Secondly, if Ofcom is able to see what is going on, the system becomes leaky in the direction of Ofcom. It can come into possession of information, some of which could be of an individual character. My noble friend says that it will not be allowed to release any data and that all sorts of protections are in place. We know that, and I fully accept the honesty and integrity of Ofcom as an institution and of its staff. However, we also know that things get leaked and escape. As a result of this provision, very large holes are being built into the protections of privacy that exist, yet there has been no reference at all to privacy in the remarks made so far by my noble friend.

I finish by saying that we are racing ahead and not thinking. Good Lord, my modest amendment in the last group to bring a well-established piece of legislation—the Consumer Rights Act—to bear upon this Bill was challenged on the grounds that there had not been an impact assessment. Where is the impact assessment for this? Where is even the smell test for this in relation to explaining it to the public? If my noble friend is able to expatiate at the end on the implications for privacy and attempt to give us some assurance, that would be some consolation. I doubt that he is going to give way and do the right thing and withdraw this amendment.

My Lords, the debate so far has been—in the words of the noble Baroness, Lady Fox—a Committee debate. That is partly because this set of amendments from the Government has come quite late. If they had been tabled in Committee, I think we would have had a more expansive debate on this issue and could have knocked it about a bit and come back to it on Report. The timing is regrettable in all of this.

That said, the Government have tabled some extremely important amendments, particularly Amendments 196 and 198, which deal with things such as algorithms and functionalities. I very much welcome those important amendments, as I know the noble Baroness, Lady Kidron, did.

I also very much support Amendments 270 and 272 in the name of the noble Baroness, Lady Fraser. I hope the Minister, having been pre-primed, has all the answers to them. It is astonishing that, after all these years, we are so unattuned to the issues of the devolved Administrations and that we are still not in the mindset on things such as research. We are not sufficiently granular, as has been explained—let alone all the other questions that the noble Lord, Lord Stevenson, asked. I hope the Minister can unpack some of that as well.

I want to express some gratitude, too, because the Minister and his officials took the trouble to give us a briefing about remote access issues, alongside Ofcom. Ofcom also sent through its note on algorithmic assessment powers, so an effort has been made to explain some of these powers. Indeed, I can see the practical importance, as explained to us. It is partly the lateness, however, that sets off what my noble friend Lord Allan called “trigger words” and concerns about the remote access provisions. Indeed, I think we have a living and breathing demonstration of the impact of triggers on the noble Lord, Lord Moylan, because these are indeed issues that concern those outside the House to quite a large degree.

I really think the Minister will have to take us through the safeguards again, and there are some he has already mentioned: the limits to the information that can be viewed, and the fact that this is done offline in operation but is limited to functionalities rather than content. He did mention that it was privacy-protecting, that it was justifiable only where proportionate, that the fact that Ofcom is accessing remotely can be made public, that it is challengeable, and that Ofcom cannot disclose information obtained. These are non-trivial powers which require a non-trivial response and a great deal more explanation, particularly, as my noble friend said, on how they differ from those in the Investigatory Powers Act; otherwise, I think concerns will continue. That is the reason for my noble friend’s Amendment 247B, which attempts to place further safeguards.

Amendments 237ZA, 272AB and 262AA, tabled by the noble Lord, Lord Bethell, and spoken to by the noble Baronesses, Lady Harding and Lady Kidron, and the noble Lord, Lord Stevenson, are really important. Of course, we welcome the tweak to Clause 148 that the Minister has introduced today but, as all noble Lords have said, this does not take us far enough. At the risk of boring the House to death, as usual, I will refer to the original Joint Committee report again. We keep returning to this because it does set out a great deal of sense.

There are three areas I want to mention. The Joint Committee said at the time:

“We heard from Dr Amy Orben, College Research Fellow at Emmanuel College, University of Cambridge, that lack of access to data is ‘making it impossible for good quality and independent scientific studies to be completed on topics such as online harms, mental health, or misinformation’”.

In another paragraph, the report says:

“We heard there is evidence that social media usage can cause psychological harm to children, but that platforms prevent research in this area from being conducted or circulated”.

Then we actually heard from Meta. It said:

“One of the things that is a particular challenge in the area of research is how we can provide academics who are doing independent research with access to data really to study these things more deeply”.

On all sides, there is a need for teeth when it comes to access for independent researchers.

Our recommendation was very clear; it was not just a recommendation that this should be reviewed but that there should be these powers. Obviously, the Minister has agreed to a compromise, in terms of a report on access, but he really should go further and have default powers, so that the Government can institute the access that is required for researchers, as a result of that report. So far, with the amendments today, the Minister is not strengthening the Bill, because there is no way for Ofcom to compel compliance with the guidance or any incentive for companies to comply with any guidance that is produced.

I very much hope that the Minister will take on board what the noble Lord, Lord Bethell, had to say, in a very eloquent way. If he cannot do it here and now on Report, I very much hope that he will come back with a proposal at Third Reading. As the noble Baroness, Lady Harding, said, we have done this in virtually every other case where there is a report. As we have seen, the Minister has agreed to have a review or a report, and then the backstop powers are in place. That is not the case with this, and it should be.

My Lords, I just want to reinforce what my noble friend Lord Bethell said about the amendments to which I have also put my name: Amendments 237ZA, 266AA and 272E. I was originally of the view that it was enough to give Ofcom the powers to enforce its own rulings. I have been persuaded that, pace my noble friend Lord Grade, the powers that have been given to Ofcom represent such a huge expansion that the likelihood of the regulator doing anything other than those things which it is obliged to do is rather remote. So I come to the conclusion that an obligation is the right way to put these things. I also agree with what has been said about the need to ensure that subsequent action is taken, in relation to a regulated service if it does not follow what Ofcom has set out.

I will also say a word about researchers. They are a resource that already exists. Indeed, there has been quite a lot of pushing, not least by me, on using this resource, first, to update the powers of the Computer Misuse Act, but also to enlarge our understanding of and ability to have information about the operation of online services. So this is a welcome move on the part of the Government, that they see the value of researchers in this context.

My noble friend Lord Moylan made a good point that the terms under which this function is exercised have to have regard to privacy as well as to transparency of operations. This is probably one of the reasons why we have not seen movement on this issue in the Computer Misuse Act and its updating, because it is intrinsically quite a difficult issue. But I believe that it has to be tackled, and I hope very much that the Government will not delay in bringing forward the necessary legislation that will ensure both that researchers are protected in the exercise of this function, which has been one of the issues, and that they are enabled to do something worth while. So I believe the Minister when he says that the Government may need to bring forward extra legislation on this; it is almost certainly the case. I hope very much that there will not be a great gap, so that we do not see this part of the proposals not coming into effect.

My Lords, we have had an important debate on a range of amendments to the Bill. There are some very important and good ones, to which I would say: “Better late than never”. I probably would not say that to Amendment 247A; I would maybe say “better never”, but we will come on to that. It is interesting that some of this has come to light following the debate on and scrutiny of the Digital Markets, Competition and Consumers Bill in another place. That might reinforce the need for post-legislative review of how this Bill, the competition Bill and the data Bill are working together in practice. Maybe we will need another Joint Committee, which will please the noble Lord, Lord Clement-Jones, no end.

There are many government amendments. The terms of service and takedown policy ones have been signed by my noble friend Lord Stevenson, and we support them. There are amendments on requiring information on algorithms in transparency reports; requiring search to put into transparency reports; how policies on illegal content and content that is harmful for children were arrived at; information about search algorithms; and physical access in an audit to view the operations of algorithms and other systems. Like the noble Baroness, Lady Kidron, I very much welcome, in this section anyway, that focus on systems, algorithms and process rather than solely on content.

However, Amendment 247A is problematic in respect of the trigger words, as the noble Lord, Lord Allan, referred to, of remote access and requiring a demonstration gathering real-time data. That raises a number of, as he said, non-trivial questions. I shall relay what some service providers have been saying to me. The Bill already provides Ofcom with equivalent powers under Schedule 12—such as rights of entry and inspection and extensive auditing powers—that could require them to operate any equipment or algorithms to produce information for Ofcom and/or allow Ofcom to observe the functioning of the regulated service. Crucially, safeguards are built into the provisions in Schedule 12 to ensure that Ofcom exercises them only in circumstances where the service provider is thought to be in breach of its duties and/or under a warrant, which has to have judicial approval, yet there appear to be no equivalent safeguards in relation to this power. I wonder whether, as it has come relatively late, that is an oversight that the Minister might want to address at Third Reading.

The policy intent, as I understand it, is to give Ofcom remote access to algorithms to ensure that service providers located out of the jurisdiction are not out of scope of Ofcom’s powers. Could that have been achieved by small drafting amendments to Schedule 12? In that case, the whole set of safeguards that we are concerned about would be in place because, so to speak, they would be in the right place. As drafted, the amendment appears to be an extension of Ofcom’s information-gathering powers that can be exercised as a first step against a service provider or access facility without any evidence that the service is in breach of its obligations or that any kind of enforcement action is necessary, which would be disproportionate and oppressive.

Given the weight of industry concern about the proportionality of these powers and their late addition, I urge the Minister to look at the addition of further safeguards around the use of these powers in the Bill and further clarification on the scope of the amendment as a power of escalation, including that it should be exercised as a measure of last resort, and only in circumstances where a service provider has not complied with its duty under the Bill or where the service provider has refused to comply with a prior information notice.

Amendment 247B is welcome because it gives the Minister the opportunity to tell us now that he wants to reflect on all this before Third Reading, work with us and, if necessary, come back with a tightening of the language and a resolution of these issues. I know his motivation is not to cause a problem late on in the Bill but he has a problem, and if he could reflect on it and come back at Third Reading then that would be helpful.

I welcome the amendments tabled by the noble Lord, Lord Bethell, on researcher access. This is another area where he has gone to great efforts to engage across the House with concerned parties, and we are grateful to him for doing so. Independent research is vital for us to understand how this new regime that we are creating is working. As he says, it is a UK strength, and we should play to that strength and not let it slip away inadvertently. We will not get the regime right first time, and we should not trust the platforms to tell us. We need access to independent researchers, and the amendments strike a good balance.

We look forward to the Minister deploying his listening ear, particularly to what the noble Baroness, Lady Harding, had to say on backstop powers. When he said in his opening speech that he would reflect, is he keeping open the option of reflecting and coming back at Third Reading, or is he reflecting only on the possibility of coming back in other legislation?

The noble Baroness, Lady Fraser, raised an important issue for the UK regulator, ensuring that it is listening to potential differences in public opinion in the four nations of our union and, similarly, analysing transparency reports. As she says, this is not about reserved matters but about respecting the individual nations and listening to their different voices. It may well be written into the work of Ofcom by design but we cannot assume that. We look forward to the Minister’s response, including on the questions from my noble friend on the consent process for the devolved Administrations to add offences to the regime.

My Lords, I am grateful to noble Lords for their contributions in this group. On the point made by the noble Lord, Lord Knight of Weymouth, on why we are bringing in some of these powers now, I say that the power to direct and observe algorithms was previously implicit within Ofcom’s information powers and, where a provider has UK premises, under powers of entry, inspection and audit under Schedule 12. However, the Digital Markets, Competition and Consumers Bill, which is set to confer similar powers on the Competition and Markets Authority and its digital markets unit, makes these powers explicit. We wanted to ensure that there was no ambiguity over whether Ofcom had equivalent powers in the light of that. Furthermore, the changes we are making ensure that Ofcom can direct and observe algorithmic assessments even if a provider does not have relevant premises or equipment in the UK.

I am grateful to the noble Lord, Lord Allan of Hallam, for inviting me to re-emphasise points and allay the concerns that have been triggered, as his noble friend Lord Clement-Jones put it. I am happy to set out again a bit of what I said in opening this debate. The powers will be subject to a number of safeguards. First, they are limited to “viewing information”. They can be used only where they are proportionate in the exercise of Ofcom’s functions, and a provider would have the right to bring a legal challenge against Ofcom if it considered that a particular exercise of the power was done unlawfully. Furthermore, Ofcom will be under a legal obligation to ensure that the information gathered from services is protected from disclosure, unless clearly defined exemptions apply.

These are not secret powers, as the noble Lord rightly noted. The Bill contains no restriction on services making the existence and detail of the information notice public. If a regulated service wished to challenge an information notice served to it by Ofcom, it would be able to do so through judicial review. I also mentioned the recourse that people have through existing legislation, such as the Freedom of Information Act, to give them safeguards, noting that, under Section 393 of the Communications Act, Ofcom will not be able to disclose information that it has obtained through its exercise of these powers without the provider’s consent unless that is permitted for specific, defined purposes.

The noble Lord’s Amendment 247B seeks to place further safeguards on Ofcom’s use of its new power to access providers’ systems remotely to observe tests. While I largely agree with the intention behind it, there are already a number of safeguards in place for the use of that power, including in relation to data protection, legally privileged material and the disclosure of information, as I have outlined. Ofcom will not be able to gain remote access simply for exploratory or fishing purposes, and indeed Ofcom expects to have conversations with services about how to provide the information requested.

Furthermore, before exercising the power, Ofcom will be required to issue an information notice specifying the information to be provided, setting out the parameters of access and why Ofcom requires the information, among other things. Following the receipt of an information notice, a notice requiring an inspection or an audit notice, if a company has identified that there is an obvious security risk in Ofcom exercising the power as set out in the notice, it may not be proportionate to do so. As set out in Ofcom’s duties, Ofcom must have regard to the principles under which regulatory activities should be proportionate and targeted only at cases where action is needed.

In line with current practice, we anticipate Ofcom will issue information notice requests in draft form to identify and address any issues, including in relation to security, before the information notice is issued formally. Ofcom will have a legal duty to exercise its remote access powers in a way that is proportionate, ensuring that undue burdens are not placed on businesses. In assessing proportionality in line with this requirement, Ofcom would need to consider the size and resource capacity of a service when choosing the most appropriate way of gathering information, and whether there was a less onerous method of obtaining the necessary information to ensure that the use of this power is proportionate. As I said, the remote access power is limited to “viewing information”. Under this power, Ofcom will be unable to interfere or access the service for any other purpose.

In practice, Ofcom will work with services during the process. It is required to specify, among other things, the information to be provided, which will set the parameters of its access, and why it requires the information, which will explain the link between the information it seeks and the online safety function that it is exercising or deciding whether to exercise.

As noble Lords know, Ofcom must comply with the UK’s data protection law. As we have discussed in relation to other issues, it is required to act compatibly with the European Convention on Human Rights, including Article 8 privacy rights. In addition, under Clause 91(7), Ofcom is explicitly prohibited from requiring the provision of legally privileged information. It will also be under a legal obligation to ensure that the information gathered from services is protected from disclosure unless clearly defined exemptions apply, such as those under Section 393(2) of the Communications Act 2003—for example, the carrying out of any of Ofcom’s functions. I hope that provides reassurance to the noble Lord, Lord Allan, and the noble Baroness, Lady Fox, who raised these questions.

I am grateful to the Minister. That was helpful, particularly the description of the process and the fact that drafts have to be issued early on. However, it still leaves open a couple of questions, one of which was very helpfully raised by the noble Lord, Lord Knight. We have in Schedule 12 this other set of protections that could be applied. There is a genuine question as to why this has been put in this place and not there.

The second question is to dig a little more into the question of what happens when there is a dispute. The noble Lord, Lord Moylan, pointed out that if you have created a backdoor then you have created a backdoor, and it is dangerous. If we end up in a situation where a company believes that what it is being asked to do by Ofcom is fundamentally problematic and would create a security risk, it will not be good enough to open up the backdoor and then have a judicial review. It needs to be able to say no at that stage, yet the Bill says that it could be committing a serious criminal offence by failing to comply with an information notice. We want some more assurances, in some form, about what would happen in a scenario where a company genuinely and sincerely believes that what Ofcom is asking for is inappropriate and/or dangerous and it wants not to have to offer it unless and until its challenge has been looked at, rather than having to offer it and then later judicially review a decision. The damage would already have been done by opening up an inappropriate backdoor.

A provider would have a right to bring a legal challenge against Ofcom if it considered that a particular exercise of the remote access power was unlawful. I am sure that would be looked at swiftly, but I will write to the noble Lord on the anticipated timelines while that judicial review was pending. Given the serious nature of the issues under consideration, I am sure that would be looked at swiftly. I will write further on that.

Before the Minister sits down, to quote the way the Minister has operated throughout Report, there is consensus across the House that there are some concerns. The reason why there are concerns outside and inside the House on this particular amendment is that it is not entirely clear that those protections exist, and there are worries. I ask the Minister whether, rather than just writing, it would be possible to take this back to the department, table a late amendment and say, “Look again”. That has been done before. It is certainly not too late: if it was not too late to have this amendment then it is certainly not too late to take it away again and to adopt another amendment that gives some safeguarding. Seriously, it is worth looking again.

I had not quite finished; the noble Baroness was quick to catch me before I sat down. I still have some way to go, but I will certainly take on board all the points that have been made on this group.

The noble Lord, Lord Knight, asked about Schedule 12. I will happily write with further information on that, but Schedule 12 is about UK premises, so it is probably not the appropriate place to deal with this, as we need to be able to access services in other countries. If there is a serious security risk then it would not necessarily be proportionate. I will write to him with further details.

I am grateful to the Minister for giving way so quickly. I think the House is asking him to indicate now that he will go away and look at this issue, perhaps with some of us, and that, if necessary, he would be willing to look at coming back with something at Third Reading. From my understanding of the Companion, I think he needs to say words to that effect to allow him to do so, if that is what he subsequently wants to do at Third Reading.

I am very happy to discuss this further with noble Lords, but I will reserve the right, pending that discussion, to decide whether we need to return to this at Third Reading.

Amendments 270 and 272, tabled by my noble friend Lady Fraser of Craigmaddie, to whom I am very grateful for her careful scrutiny of the devolved aspects of the Bill, seek to require Ofcom to include separate analyses of users’ online experiences in England, Wales, Scotland and Northern Ireland in the research about users’ experiences of regulated services and in Ofcom’s transparency reports. While I am sympathetic to her intention—we have corresponded on it, for which I am grateful—it is important that Ofcom has and retains the discretion to prioritise information requests that will best shed light on the experience of users across the UK.

My noble friend and other noble Lords should be reassured that Ofcom has a strong track record of using this discretion to produce data which are representative of people across the whole United Kingdom. Ofcom is committed to reflecting the online experiences of users across the UK and intends, wherever possible, to publish data at a national level. When conducting research, Ofcom seeks to gather views from a representative sample of the United Kingdom and seeks to set quotas that ensure an analysable sample within each of the home nations.

It is also worth noting the provisions in the Communications Act 2003 that require Ofcom to operate offices in each of the nations of the UK, to maintain advisory committees for each, and to ensure their representation on its various boards and panels—and, indeed, on the point raised by the noble Baroness, Lady Kidron, to capture the experiences of children and users of all ages. While we must give Ofcom the discretion it needs to ensure that the framework is flexible and remains future-proofed, I hope that I have reassured my noble friend that her point will indeed be captured, reported on and be able to be scrutinised, not just in this House but across the UK.

I am grateful to the Minister for giving way. My premise is that the reason Ofcom reports in a nation-specific way in broadcasting and in communications is because there is a high-level reference in both the Communications Act 2003 and the BBC charter that requires it to do so, because it feeds down into national quotas and so on. There is currently nothing of that equivalence in the Online Safety Bill. Therefore, we are relying on Ofcom’s discretion, whereas in the broadcasting and communications area we have a high-level reference to insisting that there is a breakdown by nation.

We think we can rely on Ofcom’s discretion, and point to its current practice. I hope that will reassure my noble friend that it will set out the information she seeks.

I was about to say that I am very happy to write to the noble Lord, Lord Stevenson, about the manner by which consent is given in Clause 53(5)(c), but I think his question is on something else.

I would be grateful if the Minister could repeat that immediately afterwards, when I will listen much harder.

Just to echo what the noble Baroness was saying, may we take it as an expectation that approaches that are signalled in legislation for broadcasting and communications should apply pari passu to the work of Ofcom in relation to the devolved Administrations?

Yes, and we can point to the current actions of Ofcom to show that it is indeed doing this already, even without that legislative stick.

I turn to the amendments in the name of my noble friend Lord Bethell and the noble Lord, Lord Clement-Jones, on researchers’ access to data. Amendment 237ZA would confer on the Secretary of State a power to make provisions about access to information by researchers. As my noble friend knows, we are sympathetic to the importance of this issue, which is why we have tabled our own amendments in relation to it. However, as my noble friend also knows, in such a complex and sensitive area that we think it is premature to endow the Secretary of State with such broad powers to introduce a new framework. As we touched on in Committee, this is a complex and still nascent area, which is why it is different from the other areas to which the noble Lord, Lord Clement-Jones, pointed in his contribution.

The noble Baroness, Lady Harding, made the point that in other areas where the Minister has agreed to reviews or reports, there are backstop powers; for instance, on app stores. Of course, that was a negotiated settlement, so to speak, but why can the Minister not accede to that in the case of access for researchers, as he has with app stores? Indeed, there is one other example that escapes me, which the Minister has also agreed to.

We touched on the complexity of defining who and what is a researcher and making sure that we do not give rise to bad actors exploiting that. This is a complex area, as we touched on in Committee. As I say, the evidence base here is nascent. It is important first to focus on developing our understanding of the issues to ensure that any power or legislation is fit to address those challenges. Ofcom’s report will not only highlight how platforms can share data with researchers safely but will provide the evidence base for considering any future policy approaches, which we have committed to doing but which I think the noble Lord will agree are worthy of further debate and reflection in Parliament.

The benefit of having a period of time between the last day of Report on Wednesday and Third Reading is that that gives the Minister, the Bill team and parliamentary counsel the time to reflect on the kind of power that could be devised. The wording could be devised, and I would have thought that six weeks would be quite adequate for that, perhaps in a general way. After all, this is not a power that is immediately going to be used; it is a general power that could be brought into effect by regulation. Surely it is not beyond the wit to devise something suitable.

Sit down or stand up—I cannot remember.

I wonder whether the department has looked at the DSA and other situations where this is being worked out. I recognise that it takes a period of time, but it is not without some precedent that a pathway should be described.

We do not think that six weeks is enough time for the evidence base to develop sufficiently, our assessment being that to endow the Secretary of State with that power at this point is premature.

Amendment 262AA would require Ofcom to consider whether it is appropriate to require providers to take steps to comply with Ofcom’s researcher access guidance when including a requirement to take steps in a confirmation decision. This would be inappropriate because the researcher access provisions are not enforceable requirements; as such, compliance with them should not be subject to enforcement by the regulator. Furthermore, enforcement action may relate to a wide variety of very important issues, and the steps needed should be sufficient to address a failure to comply with an enforceable requirement. Singling out compliance with researcher access guidance alone risks implying that this will be adequate to address core failures.

Amendment 272AB would require Ofcom to give consideration to whether greater access to data could be achieved through legal requirements or incentives for regulated services. I reassure noble Lords that the scope of Ofcom’s report will already cover how greater access to data could be achieved, including through enforceable requirements on providers.

Amendment 272E would require Ofcom to take a provider’s compliance with Ofcom’s guidance on researcher access to data into account when assessing risks from regulated services and determining whether to take enforcement action and what enforcement action to take. However, we do not believe that this is a relevant factor for consideration of these issues. I hope noble Lords will agree that whether or not a company has enabled researcher access to its data should not be a mitigating factor against Ofcom requiring companies to deal with terrorism or child sexual exploitation or abuse content, for example.

On my noble friend Lord Bethell’s remaining Amendments 272BA, 273A and 273B, the first of these would require Ofcom to publish its report on researchers’ access to information within six months. While six months would not be deliverable given other priorities and the complexity of this issue, the government amendment to which I have spoken would reduce the timelines from two years to 18 months. That recognises the importance of the issue while ensuring that Ofcom can deliver the key priorities in establishing the core parts of the regulatory framework; for example, the illegal content and child safety duties.

Just on the timescale, one of the issues that we talked about in Committee was the fact that there needs to be some kind of mechanism created, with a code of practice with reference to data protection law and an approving body to approve researchers as suitable to take information; the noble Baroness, Lady Kidron, referred to the DSA process, which the European Union has been working on. I hope the Minister can confirm that Ofcom might get moving on establishing that. It is not dependent on there being a report in 18 months; in fact, you need to have it in place when you report in 18 months, which means you need to start building it now. I hope the Minister would want Ofcom, within its existing framework, to be encouraging the creation of that researcher approval body and code of practice, not waiting to start that process in 18 months’ time.

I will continue my train of thought on my noble friend’s amendments, which I hope will cover that and more.

My noble friend’s Amendment 273A would allow Ofcom to appoint approved independent researchers to access information. Again, given the nascent evidence base here, it is important to focus on understanding these issues before we commit to a researcher access framework.

Under the skilled persons provisions, Ofcom will already have the powers to appoint a skilled person to assess compliance with the regulatory framework; that includes the ability to leverage the expertise of independent researchers. My noble friend’s Amendment 273B would require Ofcom to produce a code of practice on access to data by researchers. The government amendments I spoke to earlier will require Ofcom to produce guidance on that issue, which will help to promote information sharing in a safe and secure way.

To the question asked by the noble Lord, Lord Allan: yes, Ofcom can start the process and do it quickly. The question here is really about the timeframe in which it does so. As I said in opening, we understand the calls for further action in this area.

I am happy to say to my noble friend Lord Bethell, to whom we are grateful for his work on this and the conversations we have had, that we will explore the issue further and report back on whether further measures to support researchers’ access to data are required and, if so, whether they can be implemented through other legislation, such as the Data Protection and Digital Information (No.2) Bill.

Before the Minister sits down—he has been extremely generous in taking interventions—I want to put on record my understanding of his slightly ambiguous response to Amendment 247A, so that he can correct it if I have got it wrong. My understanding is that he has agreed to go away and reflect on the amendment and that he will have discussions with us about it. Only if he then believes that it is helpful to bring forward an amendment at Third Reading will he do so.

Yes, but I do not want to raise the hopes of the noble Lord or others, with whom I look forward to discussing this matter. I must manage their expectations about whether we will bring anything forward. With that, I beg to move.

Amendment 187 agreed.

Amendment 188 not moved.

Clause 67: Interpretation of this Chapter

Amendment 189

Moved by

189: Clause 67, page 64, line 15, leave out from “65(9),” to “and” in line 16 and insert “indicates (in whatever words) that the presence of content of that kind is prohibited on the service or that users’ access to content of that kind is restricted,”

Member’s explanatory statement

This amendment makes a change to the definition of “relevant content” which applies for the purposes of Chapter 3 of Part 4 of the Bill (transparency of terms of service etc). The effect of the change is to cover a wider range of ways in which a term of service might indicate that a certain kind of content is not allowed on the service.

Amendment 189 agreed.

Amendment 190

Moved by

190: After Clause 67, insert the following new Clause—

“CHAPTER 3ADECEASED CHILD USERSDisclosure of information about use of service by deceased child users

(1) A provider of a relevant service must make it clear in the terms of service what their policy is about dealing with requests from parents of a deceased child for information about the child’s use of the service.(2) A provider of a relevant service must have a dedicated helpline or section of the service, or some similar means, by which parents can easily find out what they need to do to obtain information and updates in those circumstances, and the terms of service must provide details.(3) A provider of a relevant service must include clear and accessible provisions in the terms of service—(a) specifying the procedure for parents of a deceased child to request information about the child’s use of the service,(b) specifying what evidence (if any) the provider will require about the parent’s identity or relationship to the child, and(c) giving sufficient detail to enable child users and their parents to be reasonably certain about what kinds of information would be disclosed and how information would be disclosed. (4) A provider of a relevant service must respond in a timely manner to requests from parents of a deceased child for information about the child’s use of the service or for updates about the progress of such information requests.(5) A provider of a relevant service must operate a complaints procedure in relation to the service that—(a) allows for complaints to be made by parents of a deceased child who consider that the provider is not complying with a duty set out in any of subsections (1) to (4),(b) provides for appropriate action to be taken by the provider of the service in response to such complaints, and(c) is easy to access, easy to use and transparent.(6) A provider of a relevant service must include in the terms of service provisions which are easily accessible specifying the policies and processes that govern the handling and resolution of such complaints.(7) If a person is the provider of more than one relevant service, the duties set out in this section apply in relation to each such service.(8) The duties set out in this section extend only to the design, operation and use of a service in the United Kingdom, and references in this section to children are to children in the United Kingdom.(9) A “relevant service” means—(a) a Category 1 service (see section 86(10)(a));(b) a Category 2A service (see section 86(10)(b));(c) a Category 2B service (see section 86(10)(c)).(10) In this section “parent”, in relation to a child, includes any person who is not the child’s parent but who—(a) has parental responsibility for the child within the meaning of section 3 of the Children Act 1989 or Article 6 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)), or(b) has parental responsibilities in relation to the child within the meaning of section 1(3) of the Children (Scotland) Act 1995.(11) In the application of this section to a Category 2A service, references to the terms of service include references to a publicly available statement.”Member’s explanatory statement

This amendment imposes new duties on providers of Category 1, 2A and 2B services to have a policy about disclosing information to the parents of deceased child users, and providing details about it in the terms of service or a publicly available statement.

Amendment 190 agreed.

Amendment 191

Moved by

191: After Clause 67, insert the following new Clause—

“OFCOM’s guidance about duties set out in section (Disclosure of information about use of service by deceased child users)

(1) OFCOM must produce guidance for providers of relevant services to assist them in complying with their duties set out in section (Disclosure of information about use of service by deceased child users).(2) OFCOM must publish the guidance (and any revised or replacement guidance).(3) In this section “relevant service” has the meaning given by section (Disclosure of information about use of service by deceased child users).”Member’s explanatory statement

This amendment requires OFCOM to give guidance to providers about the new duties imposed by the other Clause proposed after Clause 67 in my name.

Amendment 191A (to Amendment 191) not moved.

Amendment 191 agreed.

Schedule 8: Transparency reports by providers of Category 1 services, Category 2A services and Category 2B services

Amendments 192 to 203

Moved by

192: Schedule 8, page 212, line 26, leave out “and relevant content” and insert “, relevant content and content to which section 12(2) applies”

Member’s explanatory statement

This amendment adds a reference to content to which section 12(2) applies (content to which certain user empowerment duties apply) to paragraph 1 of the transparency reporting Schedule, which allows OFCOM to require providers of user-to-user services to include information in their transparency reports about the incidence of content.

193: Schedule 8, page 212, line 28, leave out “and relevant content” and insert “, relevant content and content to which section 12(2) applies”

Member’s explanatory statement

This amendment adds a reference to content to which section 12(2) applies to paragraph 2 of the transparency reporting Schedule, which allows OFCOM to require providers of user- to-user services to include information in their transparency reports about the dissemination of content.

194: Schedule 8, page 212, line 31, leave out “or relevant content” and insert “, relevant content or content to which section 12(2) applies”

Member’s explanatory statement

This amendment adds a reference to content to which section 12(2) applies to paragraph 3 of the transparency reporting Schedule, which allows OFCOM to require providers of user- to-user services to include information in their transparency reports about the number of users encountering content.

195: Schedule 8, page 212, line 33, after “The” insert “formulation, development, scope and”

Member’s explanatory statement

This amendment allows OFCOM to require providers of user-to-user services to include information in their transparency report about the formulation, development and scope of their terms of service (as well as the application of the terms of service).

196: Schedule 8, page 213, line 5, at end insert—

“8A_ The design and operation of algorithms which affect the display, promotion, restriction or recommendation of illegal content, content that is harmful to children, relevant content or content to which section 12(2) applies.”Member’s explanatory statement

This amendment makes it clear that OFCOM can require providers of user-to-user services to include information in their transparency report about algorithms, as mentioned in this new paragraph.

197: Schedule 8, page 213, line 16, at end insert—

“12A_ Measures taken or in use by a provider to comply with any duty set out in section (Disclosure of information about use of service by deceased child users) (deceased child users).”Member’s explanatory statement

This amendment means that OFCOM can require providers of user-to-user services to include information in their transparency report about measures taken to comply with the new duties imposed by the Clause proposed after Clause 67 in my name.

198: Schedule 8, page 214, line 3, after “The” insert “formulation, development, scope and”

Member’s explanatory statement

This amendment allows OFCOM to require providers of search services to include information in their transparency report about the formulation, development and scope of their public statements of policies and procedures (as well as the application of those statements).

199: Schedule 8, page 214, line 15, at end insert—

“24A_ The design and operation of algorithms which affect the display, promotion, restriction or recommendation of illegal search content or search content that is harmful to children.”Member’s explanatory statement

This amendment means that OFCOM can require providers of search services to include information in their transparency report about algorithms, as mentioned in this new paragraph.

200: Schedule 8, page 214, line 22, at end insert—

“26A_ Measures taken or in use by a provider to comply with any duty set out in section (Disclosure of information about use of service by deceased child users) (deceased child users).”Member’s explanatory statement

This amendment means that OFCOM can require providers of search services to include information in their transparency report about measures taken to comply with the new duties imposed by the Clause proposed after Clause 67 in my name.

201: Schedule 8, page 215, line 9, leave out “to 3” and insert “to 3A”

Member’s explanatory statement

This amendment requires OFCOM, in considering which information to require from a provider in a transparency report, to consider whether the provider is subject to the duties imposed by Chapter 3A, which is the new Chapter containing the new duties imposed by the Clause proposed after Clause 67 in my name.

202: Schedule 8, page 215, line 25, leave out from “(2),” to “and” in line 26 and insert “indicates (in whatever words) that the presence of content of that kind is prohibited on the service or that users’ access to content of that kind is restricted,”

Member’s explanatory statement

This amendment makes a change to the definition of “relevant content” which applies for the purposes of the transparency reporting Schedule. The effect of the change is to cover a wider range of ways in which a term of service might indicate that a certain kind of content is not allowed on the service.

203: Schedule 8, page 215, line 34, at end insert—

“(4) The reference in sub-paragraph (1) to users’ access to content being restricted is to be construed in accordance with sections 52 and 211(5).”Member’s explanatory statement

This technical amendment makes it clear that the reference to users’ access to content being restricted in the transparency reporting Schedule has the meaning given to it in Part 3 of the Bill.

Amendments 192 to 203 agreed.

Amendment 204 not moved.

Clause 70: “Pornographic content”, “provider pornographic content”, “regulated provider pornographic content”

Amendments 205 to 209

Moved by

205: Clause 70, page 66, line 42, leave out subsection (2)

Member’s explanatory statement

This amendment is consequential on the amendment to Clause 211 in my name adding a definition of “pornographic content” to that Clause.

206: Clause 70, page 67, leave out lines 4 to 6 and insert “, including pornographic content published or displayed on the service by means of—

(a) software or an automated tool or algorithm applied by the provider or by a person acting on behalf of the provider, or(b) an automated tool or algorithm made available on the service by the provider or by a person acting on behalf of the provider.”Member’s explanatory statement

This amendment is about what counts as “provider pornographic content” for the purposes of Part 5 of the Bill. Words are added to expressly cover the case where an automated tool or algorithm is made available on the service by a provider, such as a generative AI bot.

207: Clause 70, page 67, line 8, leave out from “than” to end of line 10 and insert “content within subsection (4A) or (4B).”

Member’s explanatory statement

This amendment is related to the next amendment in my name which inserts new subsection (4A) into Clause 70. The change is to the scope of what it means for content to consist only of text.

208: Clause 70, page 67, line 10, at end insert—

“(4A) Content is within this subsection if it—(a) consists only of text, or(b) consists only of text accompanied by—(i) a GIF which is not itself pornographic content,(ii) an emoji or other symbol, or(iii) a combination of content mentioned in sub-paragraphs (i) and (ii).(4B) Content is within this subsection if it consists of a paid-for advertisement (see section 211).”Member’s explanatory statement

This amendment clarifies the scope of the exemption from the Part 5 duties for content which consists only of text. Such content does not count as regulated provider pornographic content.

209: Clause 70, page 67, line 20, at end insert “and

(iii) references to pornographic content that is generated on the service by means of an automated tool or algorithm in response to a prompt by a user and is only visible or audible to that user (no matter for how short a time);”Member’s explanatory statement

This amendment makes it clear that, for the purposes of Part 5 (provider pornography), content is within scope of the duties if it is AI-generated content.

Amendments 205 to 209 agreed.

Clause 72: Duties about regulated provider pornographic content

Amendments 210 to 214

Moved by

210: Clause 72, page 68, line 18, leave out subsection (2) and insert—

“(2) A duty to ensure, by the use of age verification or age estimation (or both), that children are not normally able to encounter content that is regulated provider pornographic content in relation to the service.(2A) The age verification or age estimation must be of such a kind, and used in such a way, that it is highly effective at correctly determining whether or not a particular user is a child.” Member’s explanatory statement

This amendment requires providers within scope of Part 5 to use highly effective age verification or age estimation (or both) to comply with the duty in Clause 72(2) (preventing children from encountering provider pornographic content).

211: Clause 72, page 68, line 21, leave out “A” and insert “In relation to the duty set out in subsection (2), a”

Member’s explanatory statement

This amendment is a technical change relating to the preceding amendment in my name.

212: Clause 72, page 68, line 23, leave out paragraph (a) and insert—

“(a) the kinds of age verification or age estimation used, and how they are used, and”Member’s explanatory statement

This amendment requires Part 5 providers to keep a written record about the age verification or age estimation measures they use to comply with the duty in Clause 72(2).

213: Clause 72, page 68, line 25, leave out from “on” to “has” in line 26 and insert “the kinds of age verification or age estimation and how they should be used,”

Member’s explanatory statement

This amendment is consequential on the preceding amendment in my name.

214: Clause 72, page 68, line 31, at end insert—

“(4) A duty to summarise the written record in a publicly available statement, so far as the record concerns compliance with the duty set out in subsection (2), including details about which kinds of age verification or age estimation a provider is using and how they are used.”Member’s explanatory statement

This amendment requires Part 5 providers to make publicly available a summary of the age verification or age estimation measures used to comply with the duty in Clause 72(2), and how they are used.

Amendments 210 to 214 agreed.

Clause 73: OFCOM’s guidance about duties set out in section 72

Amendment 215

Moved by