Committee (1st Day)
Relevant document: 28th Report from the Delegated Powers Committee
Clause 1 agreed.
1: After Clause 1, insert the following new Clause—
“Purposes of Act
(1) This Act has the following purposes—(a) to secure that regulated internet services comply with UK law and do not endanger public health or national security,(b) to provide a higher level of protection for children than for adults in respect of regulated internet services, (c) to identify and mitigate the risk of reasonably foreseeable harm arising from the operation and design of regulated internet services,(d) to recognise and respond to the disproportionate level of harms experienced in relation to regulated internet services by people on the basis of one or more protected characteristic,(e) to apply the overarching principle that regulated internet services should be safe by design,(f) to safeguard freedom of expression within the law and privacy in relation to regulated internet services, and(g) to secure that regulated internet services operate with transparency and accountability in respect of online safety.(2) The Secretary of State and OFCOM must have regard to the need to fulfil these purposes in exercising functions under this Act.”Member’s explanatory statement
This new Clause would implement a recommendation of the Joint Committee which carried out pre-legislative scrutiny of the Bill, setting out a range of purposes for the legislation and making clear that both the Secretary of State and OFCOM must have regard to those purposes when exercising their statutory functions.
I must say I am quite relieved that so many noble Lords have stayed; I thought that a single group with a single amendment on a sunny afternoon might have been enough to drive most noble Lords away. I take it as a thoroughly good- going sign that this will be a useful debate for us to have in Committee. I am privileged, and it is a great honour, to open this Committee stage with Amendment 1— at last.
Amendment 1 is in my name and those of the noble Baroness, Lady Kidron, and the noble Lords, Lord Clement-Jones and Lord Gilbert of Panteg. The noble Lord, Lord Gilbert, has let me know that he would have liked to have been present today and had intended to speak but, unfortunately, he has a hospital appointment. As noble Lords will be aware, he was recently a distinguished chair of your Lordships’ Communications and Digital Committee and would, I think, have had a lot to say about some of the issues that we are going to discuss this afternoon. I had the pleasure of working with him there, and he has kindly agreed that I can mention a couple of the points that he would have liked to make had he been present; I will be delighted to do so.
I am grateful to the noble Baroness and noble Lords for signing this amendment; that highlights the all-party support for ensuring that the Bill will achieve the high hopes that we all have for it. It also points to the fact that all the signatories were members of the Joint Committee of both Houses which undertook comprehensive pre-legislative scrutiny of the Bill 18 months ago—a process that I thoroughly endorse and count as one of the highlights of my time in your Lordships’ House.
I observe in passing that this amendment, based as it is on a recommendation from that Joint Committee, represents one of the few recommendations not yet implemented in the Bill before us today—just saying, Minister. I got that phrase from my kids; I am not quite sure what it means but they use it a lot, so I think it must have some commonality.
This amendment is intended to be declaratory, although it is also what the Public Bill Office—it has done a great job for us, we should all say—says is purposive. I had to look that one up, I confess; I discovered that it means “having or tending to fulfil a conscious purpose or design”. So this is a purposive amendment—indeed, it does what it says on the tin.
As the noble Lord, Lord Gilbert, would have said had he been present, the Bill is very difficult to understand, in part because of its innate complexity and in part because it has been revised so often. A simple statement of its purpose will help us all. I agree.
I stress at the outset that the amendment on its own does not seek to add anything to the considerable detail already in the Bill. However, it does five important things. It says up front what the Government are trying to achieve with this legislation and highlights what those companies within the scope of the Bill will need to bear in mind when they prepare for the new regime. It makes it clear that the new regime is centred on ensuring that the duties of care are placed on the companies that are in scope
“to identify and mitigate the risk of reasonably foreseeable harm arising from the operation and design of”
their services. It calls for “transparency and accountability” from all concerned in respect of online safety.
Had he been present, the noble Lord, Lord Gilbert, would have added that the amendment also sets out a few important principles that Ministers claim are fundamental to the way in which the Bill works but are absent from the detailed provisions when one comes to read them—such as, for example, that this Bill is about systems, not content. We will have to keep reminding ourselves of those words as we go through the Bill: it is about the systems that deliver the content but not the content itself.
Finally, this amendment would send a clear message about the trust that we in Parliament are placing in our independent regulator, Ofcom. That is a very important point. The amendment leads with a requirement that regulated services comply with UK law and do not endanger public health or national security. National security and public health are of course topical issues, but even if we were not in the midst of a storm about USA national security leaks shared on a Minecraft Discord server, which is certainly a user-to-user service that is widely accessed in the United Kingdom, it is probably wise to stress early on how vital it is for leaks of this nature to be at the forefront of regulated companies’ approach to the Bill. Today’s warnings by a Cabinet Minister and former Secretary of State at DCMS about cybersecurity affecting our national infrastructure are relevant here—likewise for public health.
I will not go through the amendment line by line. I am sure that others will want to comment on how it is laid out, the order of it and other matters, which are relevant but do not capture what the amendment is trying to do. However, I will focus on one: the reference to regulated companies having to have regard to reasonably foreseeable harm, as outlined in proposed new subsection (1)(c). I regret that the term “reasonably foreseeable harms” is absent from the Bill, although of course it featured heavily in the preceding White Paper when Sir Jeremy Wright was Secretary of State. The dropping of the “legal but harmful” category raises the question of how Ofcom will future-proof the system. Now that a wide-ranging risk assessment is no longer required by Ofcom, it will be hard to see what harms are coming down the track that might harm children in the future when applied to them or indeed hobble the regime by undermining the ability to look forward with the full resources of Ofcom and the companies working in concert. There are amendments on this issue which we will come to later, including one tabled by the right reverend Prelate the Bishop of Oxford that may test this issue.
The Government confirmed in a Written Answer to me of 8 February that AI products in a user-to-user or search engine service would be covered by the Bill, but the sudden recent explosion of AI products is a very good example of why a more general sense of foreseeability of harms may be required, rather than simply relying, as I think we will have to, on a list of things that we currently know about.
Our Joint Committee report made clear that the inclusion of this overarching objectives amendment would help all of us to ensure that the Online Safety Bill will be easy to understand, not just for service providers but for the public. Its inclusion would mean that we would be able to get into the detail of the Bill with a much better understanding of what the Government are seeking. I see the flow, which the committee was very clear about—having clear objectives that lead into precise duties on the regulated providers, robust powers for the regulator to act when the platforms fail to meet those legal and regulatory requirements, and a continuing role for Parliament, which is something that we will come to in future debates.
The internet is a wonderful invention. The major online services have become central to how people around the world access news and information, do business, play games, and keep in touch with family and friends, and the internet is free to use. But is it free? These services are highly profitable businesses. Where does that money come from? It is a commercial model based on selling targeted advertising. User data—our data—is collected and used to train algorithms to maximise engagement and users’ attention. The length of time and the frequency with which users engage on the platforms increase their value. More spent online means that more advertising reaches users, which leads to more revenue for the companies. It is a vicious circle.
However, we are where we are. Actively seeking to increase engagement through personalisation has the power to create more harmful user experiences for vulnerable people and children, who are more likely to see content which will increase their vulnerabilities or do them harm. The more that people interact with conspiracy theories, for example, the more of them they will see. The grouping together of users with similar interests can create environments which normalise hate speech and extremism. Design features that favour the spread of information over safety facilitate the targeting and amplification of abuse, as we have seen.
There is no doubt that this Online Safety Bill is a key step forward for our citizens and consumers. I have made it absolutely clear that I support the Government in their Bill and that we will do what we can to make sure that it reaches the statute book as quickly as possible. It is also important to remember that it is showing other democratic societies that want to bring accountability and responsibility to the internet how it can be done, and I believe that this Bill will do it very well. However, it will only be effective if online services are held accountable for the design and operation of their systems by the regulations introduced by this Bill—and of course its successors, because this is the first of a number of Bills which we know we will be seeing in this area. There are very important points here about how we approach this, the need to maintain the will of Parliament throughout these areas, and the appointment of an independent regulator rather than those who happen to reside in Silicon Valley.
In conclusion, this is a very long and complex Bill, so it is a very fair question to ask: why on earth are we adding to it? I strongly believe that the impact of the Bill will be lessened if there is no clear, concise statement of what the Bill is designed to do and what it will change once it is up and running. Rather than critiquing the rationale of moving this amendment, therefore, I hope the debate this afternoon will focus on ensuring that it does what the Joint Committee wanted. Does it make clear what the Bill is trying to achieve? After the Bill receives Royal Assent, will we see a reduction in the seemingly ever-increasing harms caused by social media services and search engines? Is the balance between privacy and freedom of expression correct? Is the priority need to protect children secure and well embedded in the Bill? Will the system as a whole operate with transparency and accountability? Does it foreground what citizens and consumers want and need? Will they be able to get redress if their interests are harmed?
The Government will likely respond by saying that everything that I have set out in this amendment is already in the Bill. I agree. However, while the words are all there, they are scattered about in various places, with most of the substance being in Schedule 4, which, of course, will have limited application. It is very hard to get a sense of what the overarching priorities are: hence the amendment. I also agree with the Government when they say that legislating for a largely unprecedented, comprehensive, future-proofed and enforceable framework has required the creation of a range of targeted duties and a series of new definitions; and that an overall objective might risk confusing rather than clarifying. That is a fair point.
It is correct to say, however, as I am sure the Minister will say in his response, that the fact that the Bill is complicated—and, boy, it is—does not necessarily mean that the framework itself will, in practice, be overly complicated for services to comply with and for Ofcom to enforce. My argument today is not about a concern that Ofcom’s codes of practice and any associated guidance might not provide detail and clarity for services as to what steps they need to take to comply with their legislative duties, taking into account their risk profiles. I have confidence that Ofcom will do that very well indeed, and recent discussions on that have confirmed my impression. It will be independent, it will be important for it to be seen as independent, and it will act in the best interests of what we require in this space.
My concern is that, without also asserting a clear vision of what we want to happen as a result of passing this Bill, Parliament, and the people who use the social media and search resources of the internet, will have no framework by which to judge the success or otherwise of this important Bill. This amendment, as I said, is primarily declaratory, but I hope I have proved that it is also purposive. I think that the Government should look at it very carefully and hope that they will accept it. I beg to move.
My Lords, I draw attention to my interests in the register, which I declared in full at Second Reading. It is an absolute pleasure to follow the noble Lord, Lord Stevenson, and, indeed, to have my name on this amendment, along with those of fellow members of the pre-legislative committee. It has been so long that it almost qualifies as a reunion tour.
This is a fortuitous amendment on which to start our deliberations, as it sets out the very purpose of the Bill—a North Star. I want to make three observations, each of which underlines its importance. First, as the pre-legislative committee took evidence, it was frequently remarked by both critics and supporters that it was a complicated Bill. We have had many technical briefings from DSIT and Ofcom, and they too refer to the Bill as “complicated”. As we took advice from colleagues in the other place, expert NGOs, the tech sector, academics and, in my own case, the 5Rights young advisory group, the word “complicated” repeatedly reared its head. This is a complex and ground-breaking area of policy, but there were other, simpler structures and approaches that have been discarded.
Over the five years with ever-changing leadership and political pressures, the Bill has ballooned with caveats and a series of very specific, and in some cases peculiar, clauses—so much so that today we start with a Bill that even those of us who are paying very close attention are often told that we do not understand. That should make the House very nervous.
It is a complicated Bill with intersecting and dependent clauses—grey areas from which loopholes emerge—and it is probably a big win for the deepest pockets. The more complicated the Bill is, the more it becomes a bonanza for the legal profession. As the noble Lord, Lord Stevenson, suggests, the Minister is likely to argue that the contents of the amendment are already in the Bill, but the fact that the word “complicated” is firmly stuck to its reputation and structure is the very reason to set out its purpose at the outset, simply and unequivocally.
Secondly, the OSB is a framework Bill, with vast amounts of secondary legislation and a great deal of work to be implemented by the regulator. At a later date we will discuss whether the balance between the Executive, the regulator and Parliament is exactly as it should be, but as the Bill stands it envisages a very limited future role for Parliament. If I might borrow an analogy from my previous profession, Parliament’s role is little more than that of a background extra.
I have some experience of this. In my determination to follow all stages of the age-appropriate design code, I found myself earlier this week in the Public Gallery of the other place to hear DSIT Minister Paul Scully, at Second Reading of the Data Protection and Digital Information (No. 2) Bill, pledge to uphold the AADC and its provisions. I mention this in part to embed it on the record—that is true—but primarily to make this point: over six years, there have been two Information Commissioners and double figures of Secretaries of State and Ministers. There have been many moments at which the interpretation, status and purpose of the code has been put at risk, at least once to a degree that might have undermined it altogether. At these moments, each time the issue was resolved by establishing the intention of Parliament beyond doubt. Amendment 1 moves Parliament from background extra to star of the show. It puts the intention of Parliament front and centre for the days, weeks, months and years ahead in which the work will still be ongoing—and all of us will have moved on.
The Bill has been through a long and fractured process in which the pre-legislative committee had a unique role. Many attacks on the Bill have been made by people who have not read it. Child safety was incorrectly cast as the enemy of adult freedom. While some wanted to apply the existing and known concepts and terms of public interest, protecting the vulnerable, product safety and the established rights and freedoms of UK citizens, intense lobbying has seen them replaced by untested concepts and untried language over which the tech sector has once again emerged as judge and jury. This has further divided opinion.
In spite of all the controversy, when published, the recommendations of the committee report received almost universal support from all sides of the debate. So I ask the Minister not only to accept the committee’s view that the Bill needs a statement of purpose, the shadow of which will provide shelter for the Bill long into the future, but to undertake to look again at the committee report in full. In its pages lies a landing strip of agreement for many of the things that still divide us.
This is a sector that is 100% engineered and almost all privately owned, and within it lie solutions to some of the greatest problems of our age. It does not have to be as miserable, divisive and exploitative as this era of exceptionalism has allowed it to be. As the Minister is well aware, I have quite a lot to say about proposed new subsection (1)(b),
“to provide a higher level of protection for children than for adults”,
but today I ask the Minister to tell us which of these paragraphs (a) to (g) are not the purpose of the Bill and, if they are not, what is.
My Lords, I am pleased that we are starting our Committee debate on this amendment. It is a pleasure to follow the noble Lord, Lord Stevenson, and the noble Baroness, Lady Kidron.
In this Bill, as has already been said, we are building a new and complex system and we can learn some lessons from designing information systems more generally. There are three classic mistakes that you can make. First, you can build systems to fit particular tools. Secondly, you can overcommit beyond what you can actually achieve. Thirdly, there is feature creep, through which you keep adding things on as you develop a new system. A key defence against these mistakes is to invest up front in producing a really good statement of requirements, which I see in Amendment 1.
On the first risk, as we go through the debate, there is a genuine risk that we get bogged down in the details of specific measures that the regulator might or might not include in its rules and guidance, and that we lose sight of our goals. Developing a computer system around a particular tool—for example, building everything with Excel macros or with Salesforce—invariably ends in disaster. If we can agree on the goals in Amendment 1 and on what we are trying to achieve, that will provide a sound framework for our later debates as we try to consider the right regulatory technologies that will deliver those goals.
The second cardinal error is overcommitting and underdelivering. Again, it is very tempting when building a new system to promise the customer that it will be all-singing, all-dancing and can be delivered in the blink of an eye. Of course, the reality is that in many cases, things prove to be more complex than anticipated, and features sometimes have to be removed while timescales for delivering what is left are extended. A wise developer will instead aim to undercommit and overdeliver, promising to produce a core set of realistic functions and hoping that, if things go well, they will be able to add in some extra features that will delight the customer as an unexpected bonus.
This lesson is also highly relevant to the Bill, as there is a risk of giving the impression to the public that more can be done quicker than may in fact be possible. Again, Amendment 1 helps us to stay grounded in a realistic set of goals once we put those core systems in place. The fundamental and revolutionary change here is that we will be insisting that platforms carry out risk assessments and share them with a regulator, who will then look to them to implement actions to mitigate those risks. That is fundamental. We must not lose sight of that core function and get distracted by some of the bells and whistles that are interesting, but which may take the regulator’s attention away from its core work.
We also need to consider what we mean by “safe” in the context of the Bill and the internet. An analogy that I have used in this context, which may be helpful, is to consider how we regulate travel by car and aeroplane. Our goal for air travel is zero accidents, and we regulate everything down to the nth degree: from the steps we need to take as passengers, such as passing through security and presenting identity documents, to detailed and exacting safety rules for the planes and pilots. With car travel, we have a much higher degree of freedom, being able to jump in our private vehicles and go where we want, when we want, pretty much without restrictions. Our goal for car travel is to make it incrementally safer over time; we can look back and see how regulation has evolved to make vehicles, roads and drivers safer year on year, and it continues to do so. Crucially, we do not expect car travel to be 100% safe, and we accept that there is a cost to this freedom to travel that, sadly, affects thousands of people each year, including my own family and, I am sure, many others in the House. There are lots of things we could do to make car travel even safer that we do not put into regulation, because we accept that the cost of restricting freedom to travel is too high.
Without over-labouring this analogy, I ask that we keep it in mind as we move through Committee—whether we are asking Ofcom to implement a car-like regime whereby it is expected to make continual improvements year on year as the state of online safety evolves, or we are advocating an aeroplane-like regime whereby any instance of harm will be seen as a failure by the regulator. The language in Amendment 1 points more towards a regime of incremental improvements, which I believe is the right one. It is in the public interest: people want to be safer online, but they also want the freedom to use a wide range of internet services without excessive government restriction, and they accept some risk in doing so.
I hope that the Minister will respond positively to the intent of Amendment 1 and that we can explore in this debate whether there is broad consensus on what we hope the Bill will achieve and how we expect Ofcom to go about its work. If there is not, then we should flush that out now to avoid later creating confused or contradictory rules based on different understandings of the Bill’s purpose. I will keep arguing throughout our proceedings for us to remain focused on giving the right goals to Ofcom and allowing it considerable discretion over the specific tools it needs, and for us to be realistic in our aims so that we do not overcommit and underdeliver.
Finally, the question of feature creep is very much up to us. There will be a temptation to add things into the Bill as it goes through. Some of those things are essential; I know that the noble Baroness, Lady Kidron, has some measures that I would also support. This is the right time to do that, but there will be other things that would be “nice to have”, and the risk of putting them in might detract from those core mechanisms. I hope we are able to maintain our discipline as we go through these proceedings to ensure we deliver the right objectives, which are incredibly well set out in Amendment 1, which I support.
My Lords, it is a pleasure to follow other noble Lords who have spoken. I too support this key first amendment. Clarity of purpose is essential in any endeavour. The amendment overall sets out the Bill’s aims and enhances what will be vital legislation for the world, I hope, as well as for the United Kingdom. The Government have the very welcome ambition of making Britain the safest country in the world to go online. The OSB is a giant step in that direction.
As has been said, there has been remarkable consensus across the Committee on what further measures may still be needed to improve the Bill and on this first amendment, setting out these seven key purposes. Noble Lords may be aware that in the Christian tradition the number seven is significant: in the medieval period the Church taught the dangers of the seven deadly sins, the merits of the seven virtues and the seven acts of mercy. Please speak to me later if a refresher course is needed.
Amendment 1 identifies seven deadly dangers—I think they are really deadly. They are key risks which we all acknowledge are unwelcome and destructive companions of the new technologies which bring so many benefits: risks to public health or national security; the risk of serious harm to children; the risk of new developments and technologies not currently in scope; the disproportionate risk to those who manifest one or more protected characteristics; risks that occur through poor design; risks to freedom of expression and privacy; and risks that come with low transparency and low accountability. Safety and security are surely one of the primary duties of government, especially the safety and security of children and the vulnerable. There is much that is good and helpful in new technology but much that can be oppressive and destructive. These seven risks are real and present dangers. The Bill is needed because of actual and devastating harm caused to people and communities.
As we have heard, we are living through a period of rapid acceleration in the development of AI. Two days ago, CBS broadcast a remarkable documentary on the latest breakthroughs by Google and Microsoft. The legislation we craft in these weeks needs future-proofing. That can happen only through a clear articulation of purpose so that the framework provided by the Bill continues to evolve under the stewardship of the Secretary of State and of Ofcom.
I have been in dialogue over the past five years with tech companies in a variety of contexts and I have seen a variety of approaches, from the highly responsible in some companies to the frankly cavalier. Good practice, especially in design, needs stronger regulation to become uniform. I really enjoyed the analogy from the noble Lord, Lord Allan, a few minutes ago. We would not tolerate for a moment design and safety standards in aeroplanes, cars or washing machines which had the capacity to cause harm to people, least of all to children. We should not tolerate lesser standards in our algorithms and technologies.
There is no map for the future of technology and its use, even over the rest of this decade, but this amendment provides a compass—a fixed point for navigation in the future, for which future generations will thank this Government and this House. These seven deadly dangers need to be stated clearly in the Bill and, as the noble Baroness, Lady Kidron, said, to be a North Star for both the Secretary of State and Ofcom. I support the amendment.
My Lords, I too support this amendment. I was at a dinner last night in the City for a group of tech founders and investors—about 500 people in a big hotel ballroom, all focused on driving the sort of positive technology growth in this country that I think everyone wants to see. The guest speaker runs a large UK tech business. He commented in his speech that tech companies need to engage with government because—he said this as if it was a revelation—all Governments turned out not to speak with one voice and that understanding what was required of tech companies by Governments is not always easy. Business needs clarity, and anyone who has run a large or small business knows that it is not really the clarity in the detail that matters but the clarity of purpose that enables you to lead change, because then your people understand why they need to change, and if they understand why, then in each of the micro-decisions they take each day they can adjust those decisions to fit with the intent behind your purpose. That is why this amendment is so important.
I have worked in this space of online safety for more than a decade, both as a technology leader and in this House. I genuinely do not believe that business is wicked and evil, but what it lacks is clear direction. The Bill is so important in setting those guardrails that if we do not make its purpose clear, we should not be surprised if the very businesses which really do want Governments to be clear do not know what we intend.
I suspect that my noble friend the Minister might object to this amendment and say that it is already in the Bill. As others have already said, I actually hope it is. If it is not, we have a different problem. The point of an upfront summary of purpose is to do precisely that: to summarise what is in what a number of noble Lords have already said is a very complicated Bill. The easier and clearer we can make it for every stakeholder to engage in the Bill, the better. If alternatively my noble friend the Minister objects to the detailed wording of this amendment, I argue that that simply makes getting this amendment right even more important. If the four noble Lords, who know far more about this subject than I will ever do in a lifetime, and the joint scrutiny committee, which has done such an outstanding job at working through this, have got the purposes of the Bill wrong, then what hope for the rest of us, let alone those business leaders trying to interpret what the Government want?
That is why it is so important that we put the purposes of the Bill absolutely at the front of the Bill, as in this amendment. If we have misunderstood that in the wording, I urge my noble friend the Minister to come back with wording on Report that truly encapsulates what the Government want.
My Lords, I welcome this opportunity to clarify the purposes of the Bill, but I am not sure that the amendment helps as my North Star. Like the Bill, it throws up as many questions as answers, and I found myself reading it and thinking “What does that word mean?”, so I am not sure that clarity was where I ended up.
It is not a matter of semantics, but in some ways you could say—and certainly this is as publicly understood—that the name of the Bill, the Online Safety Bill, gives it its chief purpose. Yet however well-intentioned, and whatever the press releases say or the headlines print, even a word such as “safety” is slippery, because safety as an end can be problematic in a free society. My worry about the Bill is unintended consequences, and that is not rectified by the amendment. As the Bill assumes safety as the ultimate goal, we as legislators face a dilemma. We have the responsibility of weighing up the balance between safety and freedom, but the scales in the Bill are well and truly weighted towards safety at the expense of freedom before we start, and I am again not convinced the amendment weights them back again.
Of course, freedom is a risky business, and I always like the opportunity to quote Karl Marx, who said:
“You cannot pluck the rose without its thorns!”
However, it is important to recognise that “freedom” is not a dirty word, and we should avoid saying that risk-free safety is more important than freedom. How would that conversation go with the Ukrainian people who risk their safety daily for freedom? Also, even the language of safety, or indeed what constitutes the harms that the Bill and the amendments promise to keep the public safe from, need to be considered in the cultural and social context of the norms of 2023. A new therapeutic ethos now posits safety in ever-expanding pseudo-psychological and subjective terms, and this can be a serious threat to free speech. We know that some activists often exploit that concept of safety to claim harm when they merely encounter views they disagree with. The language of safety and harm is regularly used to cancel and censor opponents—and the Government know that, so much so that they considered it necessary to introduce the Higher Education (Freedom of Speech) Bill to secure academic freedom against an escalating grievance culture that feigns harm.
Part of the triple shield is a safety duty to remove illegal content, and the amendment talks about speech within the law. That sounds unobjectionable—in my mind it is far better than “legal but harmful”, which has gone—but, while illegality might sound clear and obvious, in some circumstances it is not always clear. That is especially true in any legal limitations of speech. We all know about the debates around hate speech, for example. These things are contentious offline and even the police, in particular the College of Policing, seem to find the concept of that kind of illegality confusing and, at the moment, are in a dispute with the Home Secretary over just that.
Is it really appropriate that this Bill enlists and mandates private social media companies to judge criminality using the incredibly low bar of “reasonable grounds to infer”? It gets even murkier when the legal standard for permissible speech online will be set partly by compelling platforms to remove content that contravenes their terms and conditions, even if these terms of service restrict speech far more than domestic UK law does. Big tech is being incited to censor whatever content it wishes as long as it fits in with their Ts & Cs. Between this and determining, for example, what is in filters—a whole different issue—one huge irony here, which challenges one of the purposes of the Bill, is that despite the Government and many of us thinking that this legislation will de-fang and regulate big tech’s powers, actually the legislation could inadvertently give those same corporates more control of what UK citizens read and view.
Another related irony is that the Bill was, no doubt, designed with Facebook, YouTube, Twitter, Google, TikTok and WhatsApp in mind. However, as the Bill’s own impact assessment notes, 80% of impacted entities have fewer than 10 employees. Many sites, from Wikipedia to Mumsnet, are non-profit or empower their own users to make moderation or policy decisions. These sites, and tens of thousands of British businesses of varying sizes, perhaps unintentionally, now face an extraordinary amount of regulatory red tape. These onerous duties and requirements might be actionable if not desirable for larger platforms, but for smaller ones with limited compliance budgets they could prove a significant if not fatal burden. I do not think that is the purpose of the Bill, but it could be an unintended outcome. This also means that regulation could, inadvertently, act as barrier to entry to new SMEs, creating an ever more monopolistic stronghold for big tech, at the expense of trialling innovations or allowing start-ups to emerge.
I want to finish with the thorny issue of child protection. I have said from the beginning—I mean over the many years since the Bill’s inception—that I would have been much happier if it was more narrowly titled as the Children’s Online Safety Bill, to indicate that protecting children was its sole purpose. That in itself would have been very challenging. Of course, I totally agree with Amendment 1’s intention
“to provide a higher level of protection for children than for adults”.
That is how we treat children and adults offline.
However, even then there are dilemmas. For example, if a filter for suicide might prevent a teenage user seeing some of the most awful, hideous and nihilistic images—those that we have in mind that the Bill’s purpose is to get rid of—how do we ensure it does not also reduce that teenager’s exposure to help, which they might want if they are feeling suicidal? How do we ensure that they are not denied valuable news items, debate and discussion for educational merit? Parents and society have those sorts of cost-benefit analysis challenges every day. Everyone wants their own children, indeed wants all children, to be kept safe from harms. But we do not lock children in their bedroom 24/7 just in case they encounter risk. We know that that would deprive them of crucial developmental opportunities to grow and learn, and to manage risk. A whole body of educational scholarship exists looking at some of the downsides of adult fears creating a generation of cotton-wool kids. That has been detrimental to children’s resilience, and children are often victims when adults overprotect. So I would just warn against overselling the Bill as a guarantee of risk-free safety for the young online, at any cost.
The whole issue of children is a difficult area. I know to my cost, from a rather ill-chosen way in which I expressed myself in a newspaper interview some years ago on the dilemmas of child protection versus free speech, that mis-speaking can mean being branded as complacent or even as an apologist for the most heinous horrors that can be inflicted on the young, from grooming to access to pornography. However, when people say “Think of the children”, or when we are rightly reminded to consider the tragedy of Molly Russell, for example, we can find ourselves chilled into walking on eggshells and not saying what we think.
We need to be bravely dispassionate in our discussions on protecting children online, and to scrutinise the Bill carefully for unintended consequences for children. But we must also avoid allowing our concern for children to spill over into infantilising adults and treating adult British citizens as though they are children who need protection from speech. There is a lot to get through in the Bill but the amendment, despite its good intentions, does not resolve the dilemmas we are likely to face in the following weeks.
My Lords, I have had a helpful reminder about declarations of interest. I once worked for Facebook; I divested myself of any financial interest back in 2020, but of course a person out there may think that what I say today is influenced by the fact that I previously took the Facebook shilling. I want that to be on record as we debate the Bill.
My Lords, I have not engaged with this amendment in any particular detail—until the last 24 hours, in fact. I thought that I would come to listen to the debate today and see if there was anything that I could usefully contribute. I have been interested in the different points that have been raised so far. I find myself agreeing with some points that are perhaps in tension or conflict with each other. I emphasise from the start, though, my complete respect for the Joint Committee and the work that it did in the pre-legislative scrutiny of the Bill. I cannot compare my knowledge and wisdom on the Bill with those who, as has already been said, have spent so much intensive time thinking about it in the way that they did at that stage.
Like my noble friend Lady Harding, I always have a desire for clarity of purpose. It is critical for the success of any organisation, or anything that we are trying to do. As a point of principle, I like the idea of setting out at the start of this Bill its purpose. When I looked through the Bill again over the last couple of weeks in preparation for Committee, it was striking just how complicated and disjointed a piece of work it is and so very difficult to follow.
There are many reasons why I am sympathetic towards the amendment. I can see why bringing together at the beginning of the Bill what are currently described as “Purposes” might be for it to meet its overall aims. But that brings me to some of the points that the noble Baroness, Lady Fox, has just made. The Joint Committee’s report recommends that the objectives of the Bill
“should be that Ofcom should aim to improve online safety for UK citizens by ensuring that service providers”—
it then set out objectives aimed at Ofcom rather than them actually being the purposes of the Bill.
I was also struck by what the noble Lord, Lord Allen, said about what we are looking for. Are we looking for regulation of the type that we would expect of airlines, or of the kind we would expect from the car industry? If we are still asking that question, that is very worrying. I think we are looking for something akin to the car industry model as opposed to the airline model. I would be very grateful if my noble friend the Minister was at least able to give us some assurance on that point.
If I were to set out a purpose of the Bill at the beginning of the document, I would limit myself to what is currently in proposed new subsection (1)(g), which is
“to secure that regulated internet services operate with transparency and accountability in respect of online safety”.
That is all I would say, because that, to me, is what this Bill is trying to do.
The other thing that struck me when I looked at this—I know that there has been an approach to this legislation that sought to adopt regulation that applies to the broadcasting world—was the thought, “Somebody’s looked at the BBC charter and thought, well, they’ve got purposes and we might adopt a similar sort of approach here.” The BBC charter and the purposes set out in it are important and give structure to the way the BBC operates, but they do not give the kind of clarity of purpose that my noble friend Lady Harding is seeking—which I too very much support and want to see—because there is almost too much there. That is my view on what the place to start would be when setting out a very simple statement of purpose for this Bill.
My Lords, this day has not come early enough for me. I am pleased to join others on embarking on the Committee stage of the elusive Online Safety Bill, where we will be going on an intrepid journey, as we have heard so far. Twenty years ago, while I was on the Ofcom content board, I pleaded for the internet to be regulated, but was told that it was mission impossible. So this is a day I feared might not happen, and I thank the Government for making it possible.
I welcome Amendment 1, in the names of the noble Lords, Lord Stevenson, Lord Clement-Jones, and others. It does indeed encapsulate the overarching purpose of the Bill. But it also sets out the focus of what other amendments will be needed if the Bill is to achieve the purpose set out in that amendment.
The Bill offers a landmark opportunity to protect children online, and it is up to us to make sure that it is robust, effective and evolvable for years to come. In particular, I welcome subsection (1)(a) and (b) of the new clause proposed by Amendment 1. Those paragraphs highlight an omission in the Bill. If the purposes set out in them are to be met, the Bill needs to go much further than it currently does.
Yes, the Bill does not go far enough on pornography. The amendment sets out a critical purpose for the Bill: children need a “higher level of protection”. The impact that pornography has on children is known. It poses a serious risk to their mental health and their understanding of consent, healthy sex and relationships. We know that children as young as seven are accessing pornographic content. Their formative years are being influenced by hardcore, abusive pornography.
As I keep saying, childhood lasts a lifetime, so we need to put children first. This is why I have dedicated my life to the protection of children and their well-being. This includes protection from pornography, where I have spent over a decade campaigning to prevent children easily accessing online pornographic content.
I know that others have proposed amendments that will be debated in due course which meet this purpose. I particularly support the amendments in the names of the noble Baroness, Lady Kidron, and the noble Lord, Lord Bethell. Those amendments meet the purpose of the Bill by ensuring that children are protected from pornographic content wherever it is found through robust, anonymous age verification that proves the user’s age beyond reasonable doubt.
Online pornographic content normalises abusive sexual acts, with the Government’s own research finding
“substantial evidence of an association between the use of pornography and harmful sexual attitudes and behaviours towards women”
and children. This problem is driven largely by the types of content that are easily available online. Pornography is no longer the stereotype that we might imagine from the 1970s and 1980s. It is now vicious, violent and pervasive. Content that would be prohibited offline is readily available online for free with just a few clicks. The Online Safety Bill comes at a crucial moment to regulate online pornography. That is why I welcome the amendment introducing a purpose to the Bill that ensures that internet companies “comply with UK law”.
We have the Obscene Publications Act 1959 and UK law does not allow the offline distribution of material that sexualises children—such as “barely legal” pornography, where petite-looking adult actors are made to look like children—content which depicts incest and content which depicts sexual violence, including strangulation. That is why it is important that the Bill makes that type of material illegal online as well. Such content poses a high risk to children as well as women and girls. There is evidence that such content acts as a gateway to more hardcore material, including illegal child sexual abuse material. Some users spiral out of control, viewing content that is more and more extreme, until the next click is illegal child sexual abuse material, or even going on to contact and abuse children online and offline.
My amendment would require service providers to exclude from online video on-demand services any pornographic content that would be classified as more extreme than R18 and that would be prohibited offline. This would address the inconsistency between online and offline regulation of pornographic content—
I thank the noble Lord. I hope that the amendments I support will be supported by CEASE, Refuge and Barnardo’s—I declare an interest here. Let us not let the chance of creating a robust Online Safety Bill slip through our fingers. It is now time to act with boldness, vision, morality and determination. I trust that we will continue to focus on the purpose of the Bill: to make the online world safer, especially for our children. They are relying on us to do the right thing, so let us do so.
I strongly support my noble friend in his amendment. I clarify that, in doing so, I am occupying a guest slot on the Front Bench: I do so as a member of his team but also as a member of the former Joint Committee. As my noble friend set out, this reflects where we got to in our thinking as a Joint Committee all that time ago. My noble friend said “at last”, and I echo that and what others said. I am grateful for the many briefings and conversations that we have had in the run-up to Committee, but it is good to finally be able to get on with it and start to clear some of these things out of my head, if nothing else.
In the end, as everyone has said, this is a highly complex Bill. Like the noble Baroness, Lady Stowell, in preparation for this I had another go at trying to read the blooming thing, and it is pretty much unreadable —it is very challenging. That is right at the heart of why I think this amendment is so important. Like the noble Baroness, Lady Kidron, I worry that this will be a bonanza for the legal profession, because it is almost impenetrable when you work your way through the wiring of the Bill. I am sure that, in trying to amend it, some of us will have made errors. We have been helped by the Public Bill Office, but we will have missed things and got things the wrong way around.
It is important to have something purposive, as the Joint Committee wanted, and to have clarity of intent for Ofcom, including that this is so much more about systems than about content. Unlike the noble Baroness, Lady Stowell—clearly, we all respect her work chairing the communications committee and the insights she brings to the House—I think that a very simple statement, restricting it just to proposed new paragraph (g), is not enough. It would almost be the same as the description at the beginning of the Bill, before Clause 1. We need to go beyond that to get the most from having a clear statement of how we want Ofcom to do its job and the Secretary of State to support Ofcom.
I like what the noble Lord, Lord Allan, said about the risk of overcommitment and underdevelopment. When the right reverend Prelate the Bishop of Oxford talked about being the safest place in the world to go online, which is the claim that has been made about the Bill from the beginning, I was reminded again of the difficulty of overcommitting and underdelivering. The Bill is not perfect, and I do not believe that it will be when this Committee and this House have finished their work; we will need to keep coming back and legislating and regulating in this area, as we pursue the goal of being the safest place in the world to go online —but it will not be any time soon.
I say to the noble Baroness, Lady Fox, who I respect, that I understand what she is saying about some of her concerns about a risk-free child safety regime and the unintended consequences that may come in this legislation. But at its heart, what motivate us and make us believe that getting the Bill right is one of the most important things we will do in all of our times in this Parliament are the unintended consequences of the algorithms that these tech companies have created in pushing content at children that they do not want to hear. I see the noble Baroness, Lady Kidron, wanting to comment.
I very much agree. The core of what I want to say in supporting this amendment is that in Committee we will do what we are here to do. There are a lot of amendments to what is a very long and complicated Bill: we will test the Minister and his team on what the Government are trying to achieve and whether they have things exactly right in order to give Ofcom the best possible chance to make it work. But when push comes to shove at the end of the process, at its heart we need to build trust in Ofcom and give it the flexibility to be able to respond to the changing online world and the changing threats to children and adults in that online world. To do that, we need to ensure that we have the right amount of transparency.
I was particularly pleased to see proposed new paragraph (g) in the amendment, on transparency, as referenced by the noble Baroness, Lady Stowell. It is important that we have independence for Ofcom; we will come to that later in Committee. It is important that Parliament has a better role in terms of accountability so that we can hold Ofcom to account, having given it trust and flexibility. I see this amendment as fundamental to that, because it sets the framework for the flexibility that we then might want to be able to give Ofcom over time. I argue that this is about transparency of purpose, and it is a fundamental addition to the Bill to make it the success that we want.
My Lords, the noble Baroness, Lady Harding, made possibly one of the truest statements that has ever been uttered in this House when she told us that this is a very complicated Bill. It is complicated to the extent that I have no confidence that I fully understand it and all its ramifications, and a number of other speakers have said the same. For that reason—because I am aware of my own limitations, and I am pretty sure they are shared by others—it is important to have a statement of purpose at the outset to provide the co-ordinates for the discussion we are going to have; I concur with the approach of the noble Lord, Lord Allan. Because there is then a framework within which we can be sure, we hope, that we will manage to achieve an outcome that is both comprehensive and coherent. As a number of noble Lords have said, there are a number of completely different, or nearly different, aspects to what we are discussing, yet the whole lot have to link together. In the words of EM Forster, we have to
“connect the prose and the passion”.
The Minister may say, “We can’t do that at the outset”. I am not so sure. If necessary, we should actually draft this opening section, or any successor to it, as the last amendment to the Bill, because then we would be able to provide an overview. That overview will be important because, just as I am prepared to concede that I do not think I understand it all now, there is a very real chance that I will not understand it all then either. If we have this at the head of the Bill, I think that will be a great help not only to us but to all those who are subsequently going to have to make use of it.
My Lords, I want to say something simple in support of what has already been said. If it is true that the Bill’s purposes are already scattered in the course of the Bill and throughout its substance, I cannot see what possible objection there can be to having them extracted and put at the beginning. They are not contentious—they are there already—so let us have them at the beginning to set a direction of travel. It seems so obvious to me.
It is an important Bill. I thank the Minister and his colleagues because they have put an enormous amount of work into this, and of course the Joint Committee has done its work. We have all been sent I cannot say how many briefing papers from interested bodies and so on. It is vital that, as we try to hold as much of this together as we possibly can in taking this very important Bill forward, we should have a sense of purpose and criteria against which we can measure what we eventually go on to discuss, make decisions about and introduce into the body of the Bill. I cannot see that the logic of all that can possibly be faulted.
Of course, there will be words that are slippery, as has been said. I cannot think of a single word, and I have been a lexicographer in my life, that does not lend itself to slipperiness. I could use words that everybody thinks we have in common in a way that would befuddle noble Lords in two minutes. It seems to me self-evident that these purposes, as stated here at the outset of our consideration in Committee, are logical and sensible. I will be hoping, as the Bill proceeds, to contribute to and build on the astounding work that the noble Baroness, Lady Kidron, has laid before us, with prodigious energy, in alerting all kinds of people, not just in your Lordships’ House but across the country, to the issues at stake here. I hope that she will sense that the Committee is rallying behind her in the astute way that she is bringing this matter before us. But again, I will judge outcomes against the provisions in this opening statement, a criterion for judging even the things that I feel passionate about.
The noble Baroness, Lady Morgan, and I have been in our own discussions about different parts of the Bill, about things such as suicide and self-harm. That is content. There are amendments. We will discuss them. Again, we can hold our own decisions about those matters against what we are seeking to achieve as stated so clearly at the outset of the Bill.
I remember working with the noble Lord, Lord Stevenson. It is so fabulous to have him back; the place feels right when he is here. When I was a bit of a greenhorn—he was the organ grinder and I was the monkey—I remember him pleading at the beginning of what was at that time the Data Protection Bill to have a statement like this at the beginning of that Bill. We were told, “Oh, but it is all in the Bill; all the words are there”. Then why not put them at the beginning, so that we can see them clearly and have something against which to measure our progress?
With all these things said, I hope we will not spend too much time on this. I hope we will nod it through, and then I hope we will remind ourselves of what it seeks to achieve as we go on in the interminable days that lie ahead of us. I have one last word as an old, old preacher remembering what I was told when I started preaching: “First, you tell ‘em what you’re gonna tell ‘em; then you tell ‘em; and then you tell ‘em what you’ve told ‘em”. Let us take at least the first of those steps now.
My Lords, first, I am relieved to hear that I am not the only thick person in this Committee, because I have struggled to understand and follow the detail and interconnectedness of everything in the Bill. The maxim that you need simplicity and clarity, especially if the Bill is going to be effective, is really important. That is why I think this amendment is a no-brainer: just set it out at the front.
Secondly, the amendment provides a guideline, or a lens through which we read the complexity of what follows. That might even lead us, as we go through some of the detail, to strip stuff out and make it simpler for everybody to understand. It does not have to grow the extent of the Bill. It might help us to be—I think this is the most important word I have heard—disciplined as we proceed. I support the amendment.
My Lords, I suggest, very briefly, that we look at this amendment in a slightly different way. Understandably, we have a tendency in Parliament to look at things through our own lens, and perhaps some of us are viewing this amendment as a reminder of what the Bill is about.
The noble Baroness, Lady Harding, made a very good point about clarity. I suggest we imagine that we are one of the companies that the Bill is designed to try to better manage. Imagine you are in the boardroom, or on the executive management team, and you are either already doing business in the United Kingdom or are considering entering the UK market. You know there is an enormous piece of legislation that is designed to try to bring some order to the area your business is in. At the moment, without this amendment, the Bill is a lawyer’s paradise, because it can be looked at in a multitude of ways. I put it to the Minister and the Bill team that it would be extremely helpful to have something in the Bill that makes it completely clear, to any business thinking of engaging in any online activities in the United Kingdom, what this legislation is about.
My Lords, I am one of those who found the Bill extremely complicated, but I do not find this amendment extremely complicated. It is precise, simple, articulate and to the point, and I think it gives us a good beginning for debating what is an extremely complex Bill.
I support this amendment because I believe, and have done so for a very long time, that social media has done a great deal more harm than good, even though it is capable of doing great good. Whether advertently or inadvertently, the worst of all things it has done is to destroy childhood innocence. We are often reminded in this House that the prime duty of any Government is to protect the realm, and of course it is. But that is a very broad statement. We can protect the realm only if we protect those within it. Our greatest obligation is to protect children—to allow them to grow up, so far as possible, uncorrupted by the wicked ways of a wicked world and with standards and beliefs that they can measure actions against. Complex as it is, the Bill is a good beginning, and its prime purpose must be the protection and safeguarding of childhood innocence.
The noble Lord, Lord Griffiths of Burry Port, spoke a few moments ago about the instructions he was given as a young preacher. I remember when I was training to be a lay reader in the Church of England, 60 or more years ago, being told that if you had been speaking for eight minutes and had not struck oil, stop boring. I think that too is a good maxim.
We have got to try to make the Bill comprehensible to those around the country whom it will affect. The worst thing we do, and I have mentioned this in connection with other Bills, is to produce laws that are unintelligible to the people in the country; that is why I was very sympathetic to the remarks of my noble friend Lord Inglewood. This amendment is a very good beginning. It is clear and precise. I think nearly all of us who have spoken so far would like to see it in the Bill. I see the noble Baroness, Lady Fox, rising—does she wish to intervene?
I want to explain more broadly that I am all for clarifying what the law is about and for simplicity, but that ship has sailed. We have all read the Bill. It is not simple. I do not want this amendment to somehow console us, so that we can say to the public, “This is what the Bill is about”, because it is not what the Bill is about. It is about a range of things that are not contained within the amendment—I would wish them to be removed from the Bill. I am concerned that we think this amendment will resolve a far deeper and greater problem of a complicated Bill that very few of us can grasp in its entirety. We should not con the public that it is a simple Bill; it is not.
Of course we should not. What I am saying is that this amendment is simple. If it is in the Bill, it should then be what we are aiming to create as the Bill goes through this House, with our hours of scrutiny. I shall not take part in many parts of this Bill, as I am not equipped to do so, but there are many in this House who are. Having been set the benchmark of this amendment, they can seek to make the Bill comprehensible to those of us—and that seems to include the noble Baroness, Lady Fox—who at the moment find it incomprehensible.
In a way, we are dealing with the most important subject of all: the protection of childhood innocence. We have got to err in that direction. Although I yield to no one in my passionate belief in the freedom of speech, it must have respect for the decencies of life and not be propagator of the profanities of life.
I have tried to be patient, and I will be very brief. A lot has been said about a lawyer’s paradise. At the moment, the lawyers are over here and paradise is over there and there is a gulf between us. Like the noble Lord, Lord Allan of Hallam, I declare my former interest. I did not get any shillings from Facebook or any other big tech empires, but I was a government lawyer for some years, and it is in that vein that I may have a small contribution to make, if the noble Lord, Lord Clement-Jones, does not mind.
There can be a real benefit to an amendment such as this. I want to explain why, not by repeating anything that I said at Second Reading on the substance of the Bill but by speaking from the perspective of legislative drafting and its policy. I will confine my short remarks to that.
In my view, length is always an issue. My noble friend was quite right when he moved his amendment to say that the burden was on him because he was going to add to the length of a very long Bill. In my experience as a government lawyer for about five and half years, with the mixed privilege of sitting over there through many Bills, sometimes counterintuitively a little extra length can actually aid clarity. Sometimes, a very tightly drafted Bill that is complex can be more difficult to read if, for example, it has many schedules and you need a number of copies open at any one time in order to make reference to what will be substantive sections and subsections of the Act. Ironically, it is sometimes beneficial to add a clause of this kind.
There are, I would argue, three potential reasons why Governments sometimes want to do this in relation to legislative policy. One reason is accessibility, and that has been mentioned by a number of noble Lords today. That is, I think, generally a good thing. It is not easy to achieve; I do not blame any colleagues in the Box or the Office of the Parliamentary Counsel, or Ministers, for the challenge of legislating in a complex, fast-developing area that is only going to change over time. But accessibility can be aided at times by a provision of the kind that my noble friend Lord Stevenson of Balmacara, the noble Baroness, Lady Kidron, and others are proposing.
A second possible reason is to aid interpretation, which can be very beneficial as well. That is not just interpretation for judges, litigators and these wicked barracuda lawyers that everyone is so concerned about. Interpretation is important in practice when people are having to deal on a day-to-day basis with the functioning of contentious and important legislation; that is when they have executive, regulatory and legislative functions under a measure of this kind. It is to aid their interpretation—a point made rather well, if I may say so, by the noble Baroness, Lady Harding.
So, it is not just about interpretation for lawyers, in order to sue based on what things mean; it is to aid regulators of those in the regulated sector and, potentially, members of the public and pressure groups, with some advice. As a lawyer, I consider myself a half-decent legislative professional, and this is a complex Bill for me. It would be aided by a provision of the kind my noble friends are proposing. I am saying this, really, to tempt the Minister seriously to consider something like it. I suppose I am partly trying to pre-empt what I suspect is in his brief to say by way of rebuttal in just a moment.
The third potential reason to have a provision like this at the beginning of the Bill is pure politics, and we sometimes see that in Bills: it is total flummery, and just a way of making a big political statement of intent. That is never, in my view, a good enough reason by itself. But that is not what is happening or what is suggested in my noble friend’s amendment.
I now come to complexity and the benefits of a purposive provision in this Bill. Before the Minister says that it is not appropriate, not what we do and not what parliamentary counsel does, may I remind noble Lords of another Bill going through Parliament at the moment? In contrast to this Bill, which consists of 247 pages, 212 clauses and 17 schedules, we are going to have another controversial—more controversial, I would argue—Bill in due course with a mere 59 pages, 58 clauses and one schedule, which is just a list of countries. That Illegal Migration Bill has, in fact, a purposive provision right at the beginning, in the first subsection of Clause 1. I am not making a point about the substance of that legislation; I am just pre-empting any argument that this is not what we do and not how we draft Bills. Sometimes, it appears, it is. As I say, it is a much shorter, much simpler, dare I say even more controversial Bill, and perhaps there is more politics there than accessibility of interpretation.
That was my cheap point. What I really want to say to all noble Lords in this Committee is that for the purposes of debating this amendment, let us put to one side what we think about the Bill and the various clauses and amendments we would like to see or not see. Let us just ask: is this amendment as drafted and the approach recommended by my noble friend going to aid accessibility and interpretation—not litigation and lawyers and those wicked people in my profession, but the people who, day to day, will have to live and work with the proposed new regime? Whatever one’s views—be they those of the noble Baroness, Lady Fox, or others—about the Bill as it stands or as it should or should not stand, as amended, something like Amendment 1, in my submission, is a very good idea.
If I may, I will prevail upon the noble Lord, Lord Clement-Jones, to wait just another few seconds before beginning his winding-up speech. I have found this an extremely interesting and worthwhile debate, and there seems to be an enormous amount of consensus that the amendment is a good thing to try to achieve. It is also true that this is a very complex Bill. My only point in rising is to say to the Minister—who is himself about to speak, telling us why the Government are not going to accept Amendment 1—that, as a result of the very long series of debates we are going to have on this Bill over a number of days, perhaps the Government might still be able, at the end of this very long process, to rethink the benefits of an having amendment of this kind at the beginning of the Bill. I hope that, just because he is going to ask us that the amendment be withdrawn today, he will not lose sight of the benefits of such an amendment.
My Lords, just before the noble Lord, Lord Clement-Jones gets to wind up, I wanted to ask a question and make a point of clarification. I am grateful for the contribution from the noble Baroness, Lady Chakrabarti; that was a helpful point to make.
My question, which I was going to direct to the noble Lord, Lord Stevenson—although it may be one that the noble Lord, Lord Clement-Jones, wants to respond to if the noble Lord, Lord Stevenson, is not coming back—is about the use of the word “purpose” versus “objective”. The point I was trying to make in referring to the Joint Committee’s report was that, when it set out the limbs of this amendment, it was referring to them as objectives for Ofcom. What we have here is an amendment that is talking about purposes of the Bill, and in the course of this debate we have been talking about the need for clarity of purpose. The point I was trying to make was not that I object to the contents of this amendment, but that if we are looking for clarity of purpose to inform the way we want people to behave as a result of this legislation, I would make it much shorter and simpler, which is why I pointed to subsection (g) of the proposed clause.
It may be that the content of this amendment—and this is where I pick up the point the noble Baroness, Lady Chakrabarti, was making—is not objectionable, although I take the point made by the noble Baroness, Lady Fox. However, the noble Baroness, Lady Chakrabarti, is right: at the moment, let us worry less about the specifics. Then, we can be clearer about what bits of the amendment are meant to be doing what, rather than trying to get all of them to offer clarity of purpose. That is my problem with it: there are purposes, which, as I say, are helpful structurally in terms of how an organisation might go about its work, and there is then the clarity of purpose that should be driving everything. The shorter, simpler and more to the point we can make that, the better.
My Lords, I thank the noble Baroness. I hope I have not appeared to rush the proceedings, but I am conscious that there are three Statements after the Bill. I thank the noble Lord, Lord Stevenson, for tabling this amendment, speaking so cogently to it and inspiring so many interesting and thoughtful speeches today. He and I have worked on many Bills together over the years, and it has been a real pleasure to see him back in harness on the Opposition Front Bench, both in the Joint Committee and on this Bill. Long may that last.
It has been quite some journey to get to this stage of the Bill; I think we have had four Digital Ministers and five Prime Ministers since we started. It is pretty clear that Bismarck never said, “Laws are like sausages: it’s best not to see them being made”, but whoever did say it still made a very good point. The process leading to today’s Bill has been particularly messy, with Green and White Papers; a draft Bill; reports from the Joint Committee and Lords and Commons Select Committees; several versions of the Bill itself; and several government amendments anticipated to come. Obviously, the fact that the Government chose to inflict last-minute radical surgery on the Bill to satisfy what I believe are the rather unjustified concerns of a small number in the Government’s own party made it even messier.
It is extremely refreshing, therefore, to start at first principles, as the noble Lord, Lord Stevenson, has done. He has outlined them and the context in which we should see them—namely, we should focus essentially on the systems, what is readily enforceable and where safety by design and transparency are absolutely the essence of the purpose of the Bill. I share his confidence in Ofcom and its ability to interpret those purposes. I say to the noble Baroness, Lady Stowell, that I am not going to dance on the heads of too many pins about the difference between “purpose” and “objective”. I think it is pretty clear what the amendment intends, but I do have a certain humility about drafting; the noble Baroness, Lady Chakrabarti, reminded us of that. Of course, one should always be open to change and condensation of wording if we need to do that. But we are only at Amendment 1 in Committee, so there is quite a lot of water to flow under the bridge.
It is very heartening that there is a great deal of cross-party agreement about how we must regulate social media going forward. These Benches—and others, I am sure—will examine the Bill extremely carefully and will do so in a cross-party spirit of constructive criticism, as we explained at Second Reading. Our Joint Committee on the draft Bill exemplified that cross-party spirit, and I am extremely pleased that all four signatories to this amendment served on the Joint Committee and readily signed up to its conclusions.
Right at the start of our report, we made a strong case for the Bill to set out these core objectives, as the noble Lord, Lord Stevenson, has explained, so as to provide clarity—that word has been used around the Committee this afternoon—for users and regulators about what the Bill is trying to achieve and to inform the detailed duties set out in the legislation. In fact, I believe that the noble Lord, Lord Stevenson, has improved on that wording by including a duty on the Secretary of State, as well as Ofcom, to have regard to the purposes.
We have heard some very passionate speeches around the Committee for proper regulation of harms on social media. The case for that was made eloquently to the Joint Committee by Ian Russell and by witnesses such as Edleen John of the FA and Frances Haugen, the Facebook whistleblower. A long line of reports by Select Committees and all-party groups have rightly concluded that regulation is absolutely necessary given the failure of the platforms even today to address the systemic issues inherent in their services and business models.
The introduction to our Joint Committee report makes it clear that without the original architecture of a duty of care, as the White Paper originally proposed, we need an explicit set of objectives to ensure clarity for Ofcom when drawing up the codes and when the provisions of the Bill are tested in court, as they inevitably will be. Indeed, in practice, the tests that many of us will use when judging whether to support amendments as the Bill passes through the House are inherently bound up with these purposes, several of which many of us mentioned at Second Reading. Decisions may need to be made on balancing some of these objectives and purposes, but that is the nature of regulation. I have considerable confidence, as I mentioned earlier, in Ofcom’s ability to do this, and those seven objectives—as the right reverend Prelate reminded us, the rule of seven is important in other contexts—set that out.
In their response to the report published more than a year ago, the Government repeated at least half of these objectives in stating their own intentions for the Bill. Indeed, they said:
“We are pleased to agree with the Joint Committee on the core objectives of the Bill”,
“We agree with all of the objectives the Joint Committee has set out, and believe that the Bill already encapsulates and should achieve these objectives”.
That is exactly the point of dispute: we need this to be explicit, and the Government seem to believe that it is implicit. Despite agreeing with those objectives, at paragraph 21 of their response the Government say:
“In terms of the specific restructure that the Committee suggested, we believe that using these objectives as the basis for Ofcom’s regulation would delegate unprecedented power to a regulator. We do not believe that reformulating this regulatory framework in this way would be desirable or effective. In particular, the proposal would leave Ofcom with a series of high-level duties, which would likely create an uncertain and unclear operating environment”.
That is exactly the opposite of what most noble Lords have been saying today.
It has been an absolute pleasure to listen to so many noble Lords across the Committee set out their ambitions for the Bill and their support for this amendment. It started with the noble Baroness, Lady Kidron, talking about this set of purposes being the “North Star”. I pay tribute to her tireless work, which drove all of us in the Joint Committee on in an extremely positive way. I am not going to go through a summing-up process, but what my noble friend had to say about the nature of the risk we are undertaking and the fact that we need to be clear about it was very important. The whole question of clarity and certainty for business and the platforms, in terms of making sure that they understand the purpose of the Bill—as the noble Baroness, Lady Harding, and many other noble Lords mentioned—is utterly crucial.
If noble Lords look at the impact assessment, they will see that the Government seem to think the cost of compliance is a bagatelle—but, believe me, it will not be. It will be a pretty expensive undertaking to train people in those platforms, across social media start-ups and so on to understand the nature of their duties.
I was just refreshing myself on what the impact assessment says. It says that the cost of reading and understanding the regulations will range from £177 for a small business to £2,694 for a large category 1 service provider. To reinforce my noble friend’s point: it says it will cost £177 to read and understand the Bill. I am not sure that will be what happens in practice.
I thank my noble friend for having the impact assessment so close to hand; that is absolutely correct.
The noble Baroness, Lady Fox, talked about unintended consequences—apart from bringing the people of Ukraine into the argument, which I thought was slightly extraneous. I think we need a certain degree of humility about the Bill. As the noble Lord, Lord Knight, said, this may well be part 1; we may need to keep iterating to make sure that this is effective for child safety and for the various purposes set out in the Bill. The Government have stated that this amendment would create greater uncertainty, but that is exactly the opposite of what our committee concluded. I believe, as many of us do, that the Government are wrong in taking the view that they have; I certainly hope that they will reconsider.
At Second Reading, the noble Lord, Lord Stevenson, made something that he probably would not want, given the antecedence of the phrase, to characterise as a big open offer to the Minister to work on a cross-party basis to improve the Bill. We on these Benches absolutely agree with that approach. We look forward to the debates in Committee in that spirit. We are all clearly working towards the same objective, so I hope the Government will respond in kind. Today is the first opportunity to do so—I set out that challenge to the Minister.
My Lords, let me start by saying how saying how pleased I, too, am that we are now in Committee. I thank all noble Lords for giving up their time to attend the technical briefings that officials in my department and I have held since Second Reading and for the collaborative and constructive nature of their contributions in those discussions.
In particular, not least because today is his birthday, I pay tribute to the noble Lord, Lord Stevenson of Balmacara, for his tireless work on the Bill—from his involvement in its pre-legislative scrutiny to his recall to the Front Bench in order to see the job through. We are grateful for his diligence and, if I may say so, the constructive and collaborative way in which he has gone about it. He was right to pay tribute both to my noble friend Lord Gilbert of Panteg, who chaired the Joint Committee, and to the committee’s other members, including all the other signatories to this amendment. The Bill is a better one for their work, and I repeat my thanks to them for it. In that spirit, I am grateful to the noble Lord for bringing forward this philosophical opening amendment. As noble Lords have said, it is a helpful place for us to start and refocus our thoughts as we begin our line-by-line scrutiny of this Bill.
Although I agree with the noble Lord’s broad description of his amendment’s objectives, I am happy to respond to the challenge that lies behind it and put the objectives of this important legislation clearly on the record at the outset of our scrutiny. The Online Safety Bill seeks to bring about a significant change in online safety. The main purposes of the Bill are: to give the highest levels of protection to children; to protect users of all ages from being exposed to illegal content; to ensure that companies’ approach focuses on proactive risk management and safety by design; to protect people who face disproportionate harm online including, for instance, because of their sex or their ethnicity or because they are disabled; to maintain robust protections for freedom of expression and privacy; and to ensure that services are transparent and accountable.
The Bill will require companies to take stringent measures to tackle illegal content and protect children, with the highest protections in the Bill devoted to protecting children; as the noble Baroness, Lady Benjamin, my noble friend Lord Cormack and others have again reminded us today, that is paramount. Children’s safety is prioritised throughout this Bill. Not only will children be protected from illegal content through its illegal content duties but its child safety duties add an additional layer of protection so that children are protected from harmful or inappropriate content such as grooming, pornography and bullying. I look forward to contributions from the noble Baroness, Lady Kidron, and others who will, I know, make sure that our debates are properly focused on that.
Through their duties of care, all platforms will be required proactively to identify and manage risk factors associated with their services in order to ensure both that users do not encounter illegal content and that children are protected from harmful content. To achieve this, they will need to design their services to reduce the risk of harmful content or activity occurring and take swift action if it does.
Regulated services will need to prioritise responding to online content and activity that present the highest risk of harm to users, including where this is linked to something classified as a protected characteristic under the terms of the Equality Act 2010. This will ensure that platforms protect users who are disproportionately affected by online abuse—for example, women and girls. When undertaking child safety and illegal content risk assessments, providers must consider whether certain people face a greater risk of harm online and ensure that those risks are addressed and mitigated.
The Bill will place duties relating to freedom of expression and privacy on both Ofcom and all in-scope companies. Those companies will have to consider and implement safeguards for freedom of expression when fulfilling their duties. Ofcom will need to carry out its new duties in a way that protects freedom of expression. The largest services will also have specific duties to protect democratic and journalistic content.
Ensuring that services are transparent about the risks on their services and the actions they are taking to address them is integral to this Bill. User-to-user services must set out in their terms of service how they are complying with their illegal and child safety duties. Search services must do the same in public statements. In addition, government amendments that we tabled yesterday will require the biggest platforms to publish summaries of their illegal and their child safety risk assessments, increasing transparency and accountability, and Ofcom will have a power to require information from companies to assess their compliance with providers’ duties.
Finally, the Bill will also increase transparency and accountability relating to platforms with the greatest influence over public discourse. They will be required to ensure that their terms of service are clear and properly enforced. Users will be able to hold platforms accountable if they fail to enforce those terms.
The noble Baroness, Lady Kidron, asked me to say which of the proposed new paragraphs (a) to (g), to be inserted by Amendment 1, are not the objectives of this Bill. Paragraph (a) sets out that the Bill must ensure that services
“do not endanger public health or national security”.
The Bill will certainly have a positive impact on national security, and a core objective of the Bill is to ensure that platforms are not used to facilitate terrorism. Ofcom will issue a stand-alone code on terrorism, setting out how companies can reduce the risk of their services being used to facilitate terrorist offences, and remove such content swiftly if it appears. Companies will also need to tackle the new foreign interference offence as a priority offence. This will ensure that the Bill captures state-sponsored disinformation, which is of most concern—that is, attempts by foreign state actors to manipulate information to interfere in our society and undermine our democratic, political and legal processes.
The Bill will also have a positive impact on public health but I must respectfully say that that is not a primary objective of the legislation. In circumstances where there is a significant threat to public health, the Bill already provides powers for the Secretary of State both to require Ofcom to prioritise specified objectives when carrying out its media literacy activity and to require companies to report on the action they are taking to address the threat. Although the Bill may lead to additional improvements—I am sure that we all want to see them—for instance, by increasing transparency about platforms’ terms of service relating to public health issues, making this a primary objective on a par with the others mentioned in the noble Lord’s amendment risks making the Bill much broader and more unmanageable. It is also extremely challenging to prohibit such content, where it is viewed by adults, without inadvertently capturing useful health advice or legitimate debate and undermining the fundamental objective of protecting freedom of expression online—a point to which I am sure we will return.
The noble Lord’s amendment therefore reiterates many objectives that are interwoven throughout the legislation. I am happy to say again on the record that I agree with the general aims it proposes, but I must say that accepting it would be more difficult than the noble Lord and others who have spoken to it have set out. Accepting this amendment, or one like it, would create legal uncertainty. I have discussed with the officials sitting in the Box—the noble Baroness, Lady Chakrabarti, rightly paid tribute to them—the ways in which such a purposive statement, as the noble Lord suggests, could be made; we discussed it between Second Reading and now.
I appreciate the care and thought with which the noble Lord has gone about this—mindful of international good practice in legislation and through discussion with the Public Bill Office and others, to whom he rightly paid tribute—but any deviation from the substantive provisions of the Bill and the injection of new terminology risk creating uncertainty about the proper interpretation and application of those provisions. We have heard that again today; for example, the noble Baroness, Lady Fox, said that she was not clear what the meaning of certain words may be while my noble friend Lady Stowell made a plea for simplicity in legislation. The noble Lord, Lord Griffiths, also gave an eloquent exposition of the lexicographical befuddlement that can ensue when new words are added. All pointed to some confusion; indeed, there have been areas of disagreement even in what I am sure the noble Lord, Lord Stevenson, thinks was a very consensual summary of the purposes of the Bill.
That legal uncertainty could provide the basis for an increased number of judicial reviews or challenges to the decisions taken under the Bill and its framework, creating significant obstacles to the swift and effective implementation of the new regulatory framework, which I know is not something that he or other noble Lords would want. As noble Lords have noted, this is a complicated Bill, but adding further statements and new terminology to it, for however laudable a reason, risks adding to that complication, which can only benefit those with, as the noble Baroness, Lady Kidron, put it, the deepest pockets.
However, lest he think that I and the Government have not listened to his pleas or those of the Joint Committee, I highlight, as my noble friend Lady Stowell did, that the Joint Committee’s original recommendation was that these objectives
“should be for Ofcom”.
The Government took that up in Schedule 4 to the Bill, and in Clause 82(4), which set out objectives for the codes and for Ofcom respectively. At Clause 82(4) the noble Lord will see the reference to
“the risk of harm to citizens presented by content on regulated services”
“the need for a higher level of protection for children than for adults”.
I agree with the noble Baroness, Lady Chakrabarti, that it is not impossible to add purposive statements to Bills and nor is it unprecedented. I echo her tribute to the officials and lawyers in government who have worked on this Bill and given considerable thought to it. She has had the benefit of sharing their experience and the difficulties of writing tightly worded legislation. In different moments of her career, she has also had the benefit of picking at the loose threads in legislation and poking at the holes in it. That is the purpose of lawyers who question the thoroughness with which we have all done our work. I will not call them “pesky lawyers”, as she did—but I did hear her say it. I understand the point that she was making in anticipation but reassure her that she has not pre-empted the points that I was going to make.
To the layperson, legislation is difficult to understand, which is why we publish Explanatory Notes, on which the noble Baroness and others may have had experience of working before. I encourage noble Lords, not just today but as we go through our deliberations, to consult those as well. I hope that noble Lords will agree that they are more easily understood, but if they do not do what they say and provide explanation, I will be very willing to listen to their thoughts on it.
So, while I am not going to give the noble Lord, Lord Stevenson, the birthday present of accepting his amendment, I hope that the clear statement that I gave at the outset from this Dispatch Box, which is purposive as well, about the objectives of the Bill, and my outline of how it tries to achieve them, is a sufficient public statement of our intent, and that it achieves what I hope he was intending to get on the record today. I invite him to withdraw his amendment.
Well, my Lords, it has been a very good debate, and we should be grateful for that. In some senses, I should bank that; we have got ourselves off to a good start for the subsequent debates and discussions that we will have on the nearly 310 amendments that we must get through before the end of the process that we have set out on.
However, let us pause for a second. I very much appreciated the response, not least because it was very sharp and very focused on the amendment. It would have been tempting to go wider and wider, and I am sure that the Minister had that in mind at some point, but he has not done that. The first substantial point that he made seemed to be a one-pager about what this Bill is about. Suitably edited and brought down to manageable size, it would fit quite well into the Bill. I am therefore a bit puzzled as to why he cannot make the jump, intellectually or otherwise, from having that written for him and presumably working on it late at night with candles so that it was perfect—because it was pretty good; I will read it very carefully in Hansard, but it seemed to say everything that I wanted to say and covered most of the points that everybody else thought of to say, in a way that would provide clarity for those seeking it.
The issue we are left with was touched on by the noble Baroness, Lady Stowell, in her very perceptive remarks. Have we got this pointing in the right direction? We should think about it as a way for the Government to get out of this slightly ridiculous shorthand of the safest place to be online, to a statement to themselves about what they are trying to do, rather than an instruction to Ofcom—because that is where it gets difficult and causes problems with the later stages. This is really Parliament and government agreeing to say this, in print, rather than just through reading Hansard. That then reaches back to where my noble friend Lady Chakrabarti is, and it helps the noble Baroness, Lady Harding, with her very good point, that this will not work if people do not even bother to get through the first page.
My noble friend Lord Knight mentioned the first page and the opening statement, which the Minister nearly touched on himself in his excellent speech but did not quite. This is a Bill to:
“Make provision for and in connection with the regulation by OFCOM of certain internet services; for and in connection with communications offences; and for connected purposes”.
Really? We can do better than that. Yes, of course there are Explanatory Notes, but it is the Bill that matters and the Bill that Parliament will sign on to, and there is a gap. I understand the downside of this and am not in any sense trying to force us down a road which will lead to unfortunate consequences—although probably not the same ones as the noble Baroness, Lady Fox, talked about. However, seven deadly sins stalk us as we go down this road. Surely between now and the end of Committee we can find a package that would work and cover us. I will leave it there at this stage because we have talked at length. It has been a very good debate. It is my birthday and I want to go and celebrate, but the Minister did not share the real killer, which is that it is my wedding anniversary; I must go.
I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
Clause 2 agreed.