Amendment 23

Trade Bill - Report (3rd Day) – in the House of Lords at 4:04 pm on 6th January 2021.

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Baroness Kidron:

Moved by Baroness Kidron

23: After Clause 2, insert the following new Clause—“Protection of children online(1) The United Kingdom may only become a signatory to an international trade agreement if the conditions in subsection (2) are satisfied.(2) International trade agreements must be consistent with—(a) other international treaties to which the United Kingdom is a party, and the domestic law of England and Wales (including any changes to the law after the trade agreement is signed), regarding the protection of children and other vulnerable user groups using the internet;(b) the provisions on data protection for children, as set out in the age appropriate design code under section 123 of the Data Protection Act 2018 (age-appropriate design code) and other provisions of that Act which impact children; and(c) online protections provided for children in the United Kingdom that the Secretary of State considers necessary.(3) In this section a “child” means any person under the age of 18.”

Photo of Baroness Kidron Baroness Kidron Crossbench

My Lords, I shall speak to Amendment 23 in my name and those of the noble Lords, Lord Stevenson of Balmacara, Lord Clement-Jones and Lord Sheikh. This amendment represents the wishes of many colleagues from all sides of the house, and with that in mind I have informed the clerk that we intend to divide the House. I refer noble Lords to my interests in the register, particularly that as chair of the 5Rights Foundation, a charity that works to build the digital world that children deserve.

The amendment has been slightly revised since it was tabled in Committee, to reflect comments made then, but its purpose remains resolutely the same: to ensure that the online safety of children and other vulnerable users is not compromised as a consequence of clauses that appear in future free trade agreements.

Like many colleagues, I would rather that the UK Parliament had, as the US Congress does, a system of parliamentary scrutiny of all aspects of trade deals, but that is not the case. The amendment would offer significant protections for UK children online by protecting UK domestic law, widely regarded as the best in the world, as far as it affects children’s online safety. It would sit after Clause 2 and would therefore pertain to all future UK trade deals.

Proposed new subsection (2)(a) would capture existing UK legislation and treaties. This would allow the Government to cite existing treaties, such as the Convention on the Rights of the Child, which the UK has ratified but the US has not, or domestic legislation that already offers protections for children online. It would also capture any further advances made in UK law between now and the time that any trade agreement is settled.

Proposed new subsection (2)(b) specifically refers to data protections brought into law on 2 September last year in the form of the age-appropriate design code, which will have a profound impact on children’s online safety. That code was an initiative introduced and won in this House by a similar all-party grouping, with support from all sides of the House. It would also ensure that the Data Protection Act 2018 was protected in total, since many of the provisions of the children’s code build on the broader provisions of the DPA.

Proposed new subsection (2)(c) would give the Secretary of State the power to carve out from a trade deal any new or related legislation—for example, the upcoming online harms Bill, or any provisions put forward as the result of inquiries by the Competition and Markets Authority, the Law Commission, Ofcom, the ICO and so on. Digital regulation is a fast-moving area of policy, and the discretion given to the Secretary of State by subsection (2)(c) would ensure his or her ability to reflect the latest commitments on children’s online protection in FTAs.

The amendment would also define children as any person under 18. This is crucial, since the US domestic consumer law, COPPA, has created a de facto age of adulthood online of 13, in the face of all tradition and decades of evidence of child development. Using 13 as a false marker of adulthood has been thoughtlessly mirrored around the world. It fails to offer any protection to those aged 13 to 17, who require protections and freedoms in line with their evolving maturity but are clearly not yet adults.

I am very grateful to both the Minister and the Minister of State for Trade Policy, Greg Hands MP, for taking the time to speak to me since I first tabled this amendment. I am sympathetic to their overall position that the Bill should not tie the hands of UK trade negotiators, but in this case it is imperative that we do so, because some things are simply not for sale.

In the very few weeks since we debated this amendment in Committee, we have seen that the protections outlined in the amendment are entirely absent in the EU-UK deal, and in the same few weeks we have seen suggestions for the inclusion of provisions in the proposed mini-deal with the US that could completely undermine all the advances that we have made to protect children. That is even before we get to a full-blown US-UK FTA. In this context, Ministers can no longer cast doubt on the relevance of the amendment, nor can they suggest that this is an issue that can be dealt with at some indeterminate time in the future. We have set our sights on being a sovereign trading nation and are seeking to do that in short speed. We must make sure from the very beginning that we do not trade away the safety and security of our children.

In closing, I point to the Government’s recent online harms response and say to the Minister, whom I know to be personally committed to the safety of children, that it is simply impossible to balance the promises made to parents and children in the context of the online harms Bill without us also determinedly protecting the advances and commitments that we already have made. Amendment 23 would ensure that the UK domestic attitudes, legislation and guidance that protect children’s safety online could not be traded away. In a trade deal, no one side ever gets everything that it wants. We have to take kids off the table. I beg to move.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat Lords Spokesperson (Digital)

My Lords, it is a privilege to follow the noble Baroness, Lady Kidron, and her extremely cogent introduction. I have signed Amendment 23, which we on these Benches strongly support. I pay tribute to her consistent campaigning efforts in the area of online child safety and child protection. Very briefly, I will add why we need this amendment, through some recent media headlines which illustrate the issues involved.

First, on the extent of online harms, here are just a few headlines:

“Social media stalking on rise as harassers dodge identity checks”,

“QAnon is still spreading on Facebook, despite a ban”,

“Facebook’s algorithm a major threat to public health” and

“Tech companies continue to provide online infrastructure for contentious Covid-19 websites even after flagging them as fake news, finds new Oxford study”.

Many of these online harms impact heavily on children and other vulnerable groups.

Secondly, here are two headlines on the power of big tech:

“Google told its scientists to ‘strike a positive tone’ in AI research documents” and

“Facebook says it may quit Europe over ban on sharing data with US”.

There can be no doubting the sheer global lobbying power of the major platforms and their ability to influence governments.

Thirdly, on the opportunity for change and to retain our laws, the headlines included

“New ‘transformational’ code to protect children’s privacy online”,

which refers to the age-appropriate design code that has now been renamed “the children’s code”, and

“Britain can lead the world in reining in the tech giants if we get the details right”,

which refers to the proposals to introduce a new online duty of care.

CMA advises government on new regulatory regime for tech giants” refers to the new digital markets unit, and the CMA is referred to again in:

“Google told to stamp out fraudulent advertising”.

We have started down a crucial road of regulating the behaviour of the big tech companies and preventing harm, particularly to our children and the vulnerable. In any trade deal we want to preserve the protections that our citizens have, and all those that are coming into place, and we do not want to water them down in any way as a result of any trade negotiation.

The trade deal that looms largest is of course with the US, and there are indications that with the new Administration, which so many of us welcome, there will be new attitudes towards privacy rights, especially now that it seems that Congress will have Democrat majority control. I hope that they will vigorously pursue the antitrust cases that have been started, but we have no guarantee that they will go further, for instance in successfully eliminating the all-important safe harbour legal shield for internet companies, Section 230 of the Communications Decency Act. There is no guarantee that this will go, or that there will not be attempts to enforce this by the US in its future trade deals.

The Minister, the noble Lord, Lord Grimstone, for whom I have the greatest respect, will no doubt say that the Government will have red lines in their negotiations and that there is no way that they will countenance negotiating away the online protections which we currently have. But, as we have seen with the withdrawal agreement, Northern Ireland, the fishing industry and the UK-EU Trade and Co-operation Agreement, these can be washed away, or blurred, as data protection is in the agreement with Japan. So there is a great degree of uncertainty on both sides of the Atlantic. For that reason, without doubting any assurance that the Minister gives, this amendment is essential, and on these Benches we will strongly support it if the noble Baroness, Lady Kidron, takes it to a vote.

Photo of Lord Sheikh Lord Sheikh Conservative 4:15 pm, 6th January 2021

My Lords, I speak in favour of Amendment 23, to which I have added my name as a supporter. I spoke on this issue in Committee. As we have now left the EU, we must outline our priorities as a nation, and protecting children online must be high on the list.

Amendment 23 would offer significant protections for UK children online by effecting UK laws relating to online safety in future trade deals. I have been impressed by Her Majesty’s Government’s ambitions and efforts to make the UK the safest place in the world to be online. I support the regulatory framework outlined in the Government’s response in December 2020 to the Online Harms White Paper, which is ground-breaking in creating a new duty of care that will make companies take responsibility for the safety of their users.

This amendment is an important part of this new strategy and should be supported. As set out in proposed new Clause 2(a) in Amendment 23, international trade agreements must be consistent with other international treaties and domestic laws on the protection of children and other vulnerable groups using the internet. This would refer to treaties such as the United Nations Convention on the Rights of the Child, which recognises the special safeguards that children need in all aspects of their life, including protection from all forms of violence, and the right to privacy.

Proposed new Clause 2(a) could also refer to the Digital Economy Act 2017, which prevents under-18s in the UK accessing pornography on the internet. During the pandemic, digital technologies have helped us to work and connect with loved ones, but they have also opened up greater risks for children. For instance, during the first lockdown, the Internet Watch Foundation and its industry partners blocked at least 8.8 million attempts by UK internet users to access videos and images of children suffering sexual abuse. At the same time, research by the British Board of Film Classification shows that 47% of children and teens had, during lockdown, seen content that they wished they had not seen.

The risks to children online are growing by the day, and we need to be proactive in tackling these harms and encouraging others to do so by supporting this amendment. In Committee, I was pleased that my noble friend the Minister said,

“we stand by our online harm commitments, and nothing agreed as part of any trade deal will affect that.”

This is reassuring, and I welcome his support. However, protecting children online is such an important issue it needs to be guaranteed in legislation, so that it is not accidentally traded away. This amendment will make sure this cannot happen by ensuring our online protection is a necessary requirement of any future trade deal.

In Committee, my noble friend also said that

“our continuity programme is consistent with existing international obligations, as it seeks to replicate existing EU agreements, which are themselves fully compliant with such obligations”,—[GC 140.]">Official Report, 1/10/2020; col. GC 140.] to protect young and vulnerable internet users. Although I welcome this continuity, my concern is with countries such as the US, which may not have the same standard of protection as we do in the UK and the EU.

As has been mentioned previously, the trade agreement between the US, Mexico and Canada has effectively created a legal shield for tech companies in line with US domestic law. In this agreement, service providers are not liable for content on their platforms or the harm it may cause to users. This fails to hold social media companies to account and risks protecting the big tech firms over children online. Rather than just replicating the existing legislation on online harms in future trade agreements, the amendment will also apply to updated or new legislation. For example, proposed new subsection (2)(c) of Amendment 23 refers to

“online protections provided for children in the United Kingdom that the Secretary of State considers necessary.”

This means that future legislation, such as the upcoming online harms Bill, will be protected in international trade agreements.

The digital space is continually changing and growing at a rapid pace. I am sure that, over the next few years, more legislation will be created for new technologies that we may not even know exist at present. With this amendment, we will ensure that protecting children goes hand in hand with technological innovation.

In Committee, my noble friend the Minister reaffirmed the UK’s commitment to international obligations on protecting young and vulnerable internet users. Supporting this amendment is the best way to strengthen this commitment and make it truly enforceable, as it means that children online will be fully protected within future trade deals, regardless of the make-up of the negotiating team of the day.

Data protection is also central to protecting children online, and proposed new subsection (2)(b) will ensure that the age-appropriate design code is also properly honoured. The code came into force in September 2020, and is a code of practice that explains how online service providers can ensure that they appropriately safeguard children’s personal data.

Data is essentially the building block of the digital world and affects how we use it. Although data is important and useful, it can also be dangerous in exposing children to age-inappropriate content, such as material on self-harm, sexual abuse, bullying, misinformation and extremism. As data travels across borders, it is important that future international agreements are consistent with our leading online protections.

In proposed new subsection (3) of the amendment, a child is defined as

“any person under the age of 18.”

This is consistent with existing UK law and the UN Convention on the Rights of the Child. This is important, as the age of a child differs between countries. For example, US domestic consumer law has created the de facto age of adulthood online as 13. I am sure your Lordships will agree that a 14, 15, 16 or 17 year-old is still as much at risk of sexual exploitation, misinformation, grooming, bullying and harmful content online as a 13 year-old. For instance, in a survey by Ofcom and the Information Commissioner’s Office in 2019, 79% of 12 to 15 year-old internet users claimed that they had had at least one harmful experience in the past 12 months. It is important that this amendment is supported, so that any person under the age of 18 can be protected, as, even at 17, a young person is still developing, and harmful experiences online can impact them for the rest of their life.

I applaud the Government’s use of digital technologies to power economic growth across the UK and abroad. This is exciting, but we must exercise caution. To quote the response to the online harms Bill White Paper:

“we must be able to look parents in the eye and assure them we are doing everything we can to protect their children from harm.”

By supporting this amendment, we are making a true commitment to create a safer digital world for our children.

Photo of Lord Knight of Weymouth Lord Knight of Weymouth Labour

My Lords, I am an enthusiastic supporter of this cross-party amendment to the Trade Bill.

The Government do not have that much to be proud of right now, but they should be rightly proud of their moves to make the UK the safest place in the world to be online, especially for children. The noble Baroness, Lady Kidron, has done great work, both through the 5Rights Foundation and in this House on this issue. Her efforts to persuade the Government to bring in the age-appropriate design code in the Data Protection Act were hugely important and ground-breaking. Ministers should be proud that they listened and acted to ensure that technology platforms put the interests of children first.

Although I have been critical of the delays from the Government in bringing forward the online harms Bill, we are finally seeing movement. Again, Ministers should be proud of what they are doing to make the online world safer for children in the UK through the measures they are bringing forward this year. But we know that the large US tech companies hate the “duty of care” idea at the heart of the Bill and have an equal dislike of age-appropriate design. We know that they have successfully persuaded the US Government to write into trade deals with Japan, Mexico, Korea and others that tech companies should not be liable for the harms they cause. And they do cause harms.

Just this week, I was followed by someone on Twitter. When I checked her Twitter account, I was faced with a highly graphic image of her genitalia. I blocked the user and reported the account, and have heard no more from the user or from Twitter. This is just an everyday example of what we all have to navigate.

Of course, for children, this is much more serious. I was talking yesterday to a leading researcher into children’s mental health. We agreed that, for primary-aged children, it is reasonable—and, I think, desirable—to ban online devices from bedrooms, but she advised me that her research shows that secondary-aged pupils will get a device into their rooms, whether parents like it or not. A study published last year found that 75% of parents did not believe that their children would have watched pornography, and yet the majority of children told researchers that they had.

Of course, we know that this goes way beyond porn to grooming, bullying, radicalisation and so on. We must protect our children as best we can. Parents have a responsibility, and education has some responsibility, but so do we as legislators, and so do the technology companies that profit from our engagement with this content.

Section 230 of the US Communications Decency Act 1996 allowed internet companies a free rein to make and break things. This did some good in the early years, but it also allowed unimaginable amounts of child sexual abuse imagery and grooming, and the targeting of teenagers with harmful content.

Especially with the news today from Georgia, we can be hopeful that the US may now want to do more itself to regulate the technology companies, but our responsibility is to the UK, and Amendment 23 would make it impossible for the UK to sign away through trade deals the protections that we in this Parliament are putting in place for children.

I know that the Department for International Trade wants a free hand in negotiation. I imagine that there is a good old row across Whitehall over this issue with DCMS. This House should be on the right side of the argument and back Digital Ministers and, in doing so, safeguard our children by, as the noble Baroness, Lady Kidron, said in opening this debate, taking them off the table.

Photo of Baroness Noakes Baroness Noakes Conservative 4:30 pm, 6th January 2021

My Lords, it is a pleasure to follow the noble Lord, Lord Knight, who clearly has a much more exciting life on Twitter than I do.

In respect of the substance of the amendment moved by the noble Baroness, Lady Kidron, I again say that your Lordships’ House does not need to—and, indeed, should not—seek to write on to the face of legislation that to which the Government are already committed.

The noble Baroness and other noble Lords who have supported this amendment are aware that the Government have recently published their response to the online harms consultation and have announced that they will create a new regulatory framework, overseen by Ofcom, which will apply internationally. Once that is legislated for, it will be the law of the land, as is the Data Protection Act 2018, and cannot be overridden by any international trade agreement. The only way that the law can be overridden is if Parliament chooses to change it. I am sure that my noble friend Lord Grimstone of Boscobel will provide further reassurances in respect of the Government’s position.

I should like to concentrate my remarks on the drafting of the amendment. We all know that amendments for Committee can be somewhat rough and ready because they are often used as probing amendments and are rarely divided on—at least, that is the modern practice, although it was not like that when I first joined your Lordships’ House—but I hope that the House will agree that it is incumbent on those moving amendments at later stages of a Bill, including Report, to ensure that they are well drafted. With that background, I wish to offer three comments on Amendment 23.

First, subsection (1) of the proposed new clause has a misplaced modifier. The word “only” is incorrectly attached to becoming a signatory to trade agreements. I believe that the noble Baroness intended to say that the UK may become a signatory only if certain conditions are met, rather than that the only thing that the UK can do if the conditions are met is become a signatory to a trade agreement.

Secondly, subsection (1) refers to

“the conditions in subsection (2)”,

but subsection (2) is not drafted as conditions to be satisfied; rather, it is just one statement—that trade agreements must be “consistent with” three things. I also remind the noble Baroness, Lady Kidron, that her concerns are not addressed by whether or not international trade agreements are consistent, because trade agreements do not, and cannot, change UK law, as I have already said. If they were inconsistent, they would have no effect unless and until changes were made to UK law, which would of course require the agreement of Parliament.

Thirdly, proposed new subsection (2)(a) refers to consistency with the domestic law of England and Wales, which rather begs a question about Scotland and Northern Ireland. They may or may not have their own relevant child protection legislation at the moment—I am not an expert on that—but, even if they do not have relevant legislation now, they presumably could have in the future. I am mystified by why paragraph (a) is restricted to English and Welsh law.

I hope that the noble Baroness, Lady Kidron, will reflect on those points.

Photo of The Bishop of St Albans The Bishop of St Albans Bishop

My Lords, I will speak briefly in support of Amendment 23. The Government’s proposed online harms Bill will provide a welcome framework to protect the most vulnerable from exposure to dangerous content by placing the burden of responsibility on social media companies. This crucial legislation will better equip Britain to deal with the digital age.

Much has been made of our new-found freedoms now that we have left the EU, and some people might wish to use those freedoms in a race to the bottom. However, some of us are hoping that they can be used to give a very strong lead in the world as to the ways in which nations can seek to protect the most vulnerable from all sorts of harms that can come their way when they are online.

Concerns have been raised about the prospect of protections for big tech firms being forced into future trade deals, particularly those between the UK and the US, which might undermine our national efforts to hold tech firms accountable for the content on their platforms. The recent trade deal between the EU and the UK should serve as a reminder of the gap that exists between rhetoric and reality. For all the Government’s talk of a fishing renaissance, the trade deal with the EU achieved only a marginal improvement in quotas, much to the dismay of many. As such, there is, rightly, a fear that, without strong legal provision within trade agreements to protect children online, this will simply become another area up for negotiation—a concession that could be traded away to secure a deal.

The collective efforts of the Government and this Parliament to protect children from exposure to dark and sordid material, which in some cases can lead to serious mental health problems—even, exceptionally, to suicide—cannot and must not be sacrificed on the altar of material gain. The amendment would guarantee the safety of children online and ensure that these protections could not be negotiated away, and I hope that your Lordships’ House will support it.

Photo of Baroness Ritchie of Downpatrick Baroness Ritchie of Downpatrick Non-affiliated

My Lords, I am delighted to follow the right reverend Prelate the Bishop of St Albans, and I take this opportunity to congratulate the noble Baroness, Lady Kidron, on bringing back this revised amendment on Report. I was happy to support it in Committee and am now very happy to do so on Report.

There is a concern that the upcoming UK-US trade deal will put at risk the UK’s progress in providing a safe digital world for children. I hope that, on the side of the United States, President-elect Biden and his colleagues can address that issue. There is a fear that the US tech lobby has forced domestic protections for big tech firms into US trade deals with Japan, Korea, Mexico and Canada, and, according to informed research, is trying to do the same with the UK-US deal. What update does the Minister have on that issue? There is no doubt that it would undermine both existing UK law that protects children online and the impact of the much anticipated online harms Bill.

It is important to ensure that future trade deals carve out our domestic legislation so that the UK can continue to be a leader in child protection online. Amendment 23 would clearly require all future trade deals to respect and protect the progress that has been made in the UK, including through the online harms Bill, the ICO’s age-appropriate design code and the Data Protection Act 2018, of which the code is part, and make it impossible for the UK to sign deals that put these protections at risk. It would stop children’s safety being compromised by US trade interests and, in doing so, maintain the leadership in children’s online safety. I am happy to support the amendment.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, I support this amendment, which has been brilliantly introduced by the noble Baroness, Lady Kidron, and we have heard some very strong and emotional speeches in favour of it. It is quite obvious that the internet is a most incredible thing. I cannot imagine what the past year would have been like—and, of course, this year and all years into the future—without the connectivity that the internet has given us when life could have been extremely lonely.

At the same time, the internet can be a very dangerous place because the dominant companies have the most incredible amount of power. This small but crucial amendment would go a long way towards protecting our children. With the USA, it is obviously even more important that we have these sorts of protections, not just because those companies think that anyone over 13 is not a child any more but because they have a strategic interest in disassembling regulations from other countries, which is to maintain their dominance in this area.

This Government like to use moral panic to justify all sorts of legislation—repressive legislation, I would call it—using censorship and spying to further their aims. They cannot have that in only one direction. The same logic must support this amendment, to protect children from the darkest corners of the internet.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, I too support this revised amendment. Like everyone else, I pay tribute to the work of the noble Baroness, Lady Kidron, who is a true reforming pioneer. Her ground-breaking work both domestically and internationally in seeking protective regulation for children really goes before her. She has been combating the hugely damaging impact of social media on children’s lives and has been at the forefront in creating a code of standards for child-sensitive design in technology and so on. Here is an area where, because of her persuasive skills, the UK really is leading the world. I hope that it will continue to do so and be at the vanguard of protecting children.

There is increasing recognition of the addictive nature of social media; probably most of us suffer from it in relation to our constant need to check our emails and our inability to function without our iPhones, so we know the nature of this particular development. For young people at an important stage in their psychological development, the harm can have very long-term effects and be especially damaging. I sit on the human rights advisory council for one of the big American tech companies, and not one of the people who lead those companies would let their children have the kind of access to the internet that so many of our young have. They put restrictions on their children having phones; they do not allow them usually until they are well into their teens; they put limits on their app use once they are 15 and 16, and they demand a handover of the phone in the evenings after supper so that they do not take it to bed and stay up all night linked in to other people.

You have to ask yourself why that is, and the answer is because they know the truth. They know that, in order to monetise their inventions, which feed the human desire for connection with others, they have had to have something to sell. You have to ask yourself: if your children are not paying for a product such as Facebook, Snapchat or Twitter, where is the profit? The answer, as we now know, is that the way it is monetised is that the children become the product. Shoshana Zuboff, the Harvard professor who has written a powerful book on surveillance capitalism, says that getting children addicted to phone usage is like trading in pork belly futures. They are being manipulated into being the ultimate consumer.

One of the designers that I have met spoke of his guilt about creating “likes” on these apps, because, of course, for advertisers pushing a commodity or for those promoting a particular political position, it is a vital indicator of interest and propensity. For the young, it feeds into, unfortunately, unmanageable emotions of uncertainty and feelings as to whether they really are likeable or attractive, and it can often lead to self-loathing. Recent research in the United States has shown that there is a frightening escalation of anxiety among the young—and it is certainty true here too—leading to self-harming, depressive illness, hospitalisations and suicide because of the kind of stuff that they find on the internet. It is not only among the older groupings of people in their teens; it goes right down to pre-teens of 10, 11 and 12.

I recently received a letter from a mother, Catherine Liddell, pleading for something to be done by Parliament because of the conflict this issue creates inside homes. Having a phone becomes a rite of passage for children when they go to secondary school, and sometimes they even have them at the end of their period in primary school—children of 10, 11 and 12. Children face ridicule if they do not have one. Platforms are designed to get them to spend as much time as possible on a company’s page, and it is made possible because each child is uniquely targeted by algorithms and supercomputers, which know and build up a profile of their every preference.

I know that the Government’s position is that they do not want the hands of its trade negotiators to be tied. Well, I am afraid that I do want them to be tied because, when it comes to the values that inform our trade negotiators, they really have to have some clarity when it comes to things as important as the well-being of our children. While we may feel slightly more optimistic today about the fact that a Democrat-led Administration in the United States will come to future negotiations for trade with perhaps a different set of values from those of the Trump Administration, we should not underestimate the real power and influence of the tech companies, as has been said by others. They are going to put the press on the Democrats as much as Republicans. We have to recognise that our trade negotiators will really be put under the cosh by the big internet companies. That is why this amendment is so important. Some things have to take precedence over commercial interests.

I urge the Government to support the amendment and display their commitment to leading the world on this important issue of online harms to our children.

Photo of Lord McNally Lord McNally Liberal Democrat 4:45 pm, 6th January 2021

My Lords, as ever, it is a pleasure to follow the noble Baroness, Lady Kennedy. I also want to speak in support of the amendment. My intervention is based on a long-term commitment to seeing age-appropriate design embedded—as it was in the Data Protection Act 2018—activated and written into future legislation. That commitment owes much to the efforts and persistence of the noble Baroness, Lady Kidron, as has been noted by my noble friend Lord Clement-Jones and others.

My fears for the future of that commitment have not been helped by awaiting the implementation of the long promised internet harms Bill. The harms identified by the 2018 Act are real and present now, and delay leaves ongoing harms unchecked. For over a year I have been working with the Carnegie UK Trust on a paving Bill intended to ease the passage of the online harms Bill. In its briefing for this Bill, the Carnegie team had this to say:

“At Carnegie we remain concerned about the opaque nature of the discussions on the UK/US Trade Agreements and the risks that the wholesale imports of provisions relating to section 230 of relevant US legislation”— that is, the legislation referred to earlier in the debate—

“may significantly restrict the ability of the UK to enact the systemic online harms regulation it intends”.

My concerns were further increased by the briefing from the 5Rights Foundation, which warns that the US tech lobby is working to ensure that US domestic legislation protects big tech companies from liability, and that that is written into all US trade agreements—a warning that Lord Sheikh emphasised.

If such clauses were to appear in a future UK-US trade deal, they would have a chilling effect on all the advances the UK has made to protect children online. So I believe that this amendment is necessary to protect safeguards already in law or proposed in future law, but which could be voided by clauses written into trade treaties.

I believe the good intentions expressed by the Minister, but we are only six days into our new liberties, so claiming that there are no problems is a little premature. I am a little worried about the self-styled buccaneers in his party, whose idea of behaving in accordance with commitments to the law may be equal to that of the old buccaneers.

Although the amendment would be a valuable addition to the Bill, we must also address the wider issue of the use of the royal prerogative in making treaties. There is an urgent need to review how Parliament deals with trade and other treaties. The 2010 Constitutional Reform and Governance Act—the CRaG Act—is now not fit for purpose. It was drawn up when we had already spent 30 years in the EU, which then had responsibility for our trade treaties. The CRaG Act is out of date, but so too is the concept of the royal prerogative, which is a useful fig leaf for giving Ministers power and preventing Parliament from having power.

A Government who came to power promising to return power to Parliament, not to the Executive, should really examine the CRaG Act, the royal prerogative, and how we handle trade treaties. As has been said, there are lots of Governments, chiefly the US Congress, who have powers to scrutinise. American Ministers, and other Ministers in the same situation, simply have to live with that kind of scrutiny. Let us pass this amendment, but let us then put down a firm marker that there is other work to be done before Parliament can regain sovereignty over treaties.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

My Lords, it is a pleasure to follow my noble friend Lady Jones of Moulsecoomb in thanking the noble Baroness, Lady Kidron, for tabling Amendment 23. My noble friend and I do not usually speak on the same amendment, but there is a particular range of issues that I want to speak to on this one—issues that no other noble Lords have addressed. I am talking about controlling advertising, a fast-rising area of concern.

When I talk about advertising I also mean some of the broader online issues such as product placement and payments to influencers, which are effectively indirect forms of advertising. This is where I agree with a comment made by the noble Lord, Lord Vaizey, yesterday, which may surprise the House. He expressed concern about differential controls on advertising for broadcasters in the UK, which do not apply online. Yet we know that consumption of media is very much blending now; indeed, the divisions between broadcast and online material, from consumers’ point of view, are pretty artificial these days.

In some areas we already have quite tight controls in the UK for broadcasters and others—on smoking advertising, for example, as well as some controls on gambling advertising, and limited controls on alcohol advertising. We have also seen, particularly in the London underground, controls on the advertising of unhealthy food. As we start to face up to our role as chair of COP26, and face the climate emergency and the nature crisis, a broader concern about advertising is rising, in relation to its place in driving consumption, and driving the destruction of our planet.

The amendment is about children in particular. It is Green Party policy that all advertising directed at primary school age pupils, who psychologists tell us cannot distinguish between advertising and programmes, or editorial content, should be banned. In the online context, it should be possible to create a situation in which we can protect children up to a certain age from online advertising.

I note that just before Christmas, on a question about gambling advertising, the noble Baroness, Lady Barran, speaking for the Government, said:

“We very much welcome moves by the major platforms that give individuals greater control”.—[Official Report, 14/12/20; col. 1518.]

over gambling advertising. Should a future Government decide to enforce even the rights of users to block advertising, I suggest that we do not want to see trade Bills stopping that happening.

I conclude by referring to what the noble Baroness, Lady Kennedy of The Shaws, said. What we are talking about here is giving guidance and democratic control—sovereign control—to our trade negotiators in future trade deals.

Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Opposition Whip (Lords), Shadow Spokesperson (Digital, Culture, Media and Sport), Shadow Spokesperson (Business, Energy and Industrial Strategy and International Trade)

My Lords, I thank all speakers for their contributions to this rather important debate. I was happy to sign up to Amendment 23, tabled by the noble Baroness, Lady Kidron, because surely ensuring online safety for children and otherwise vulnerable people is one of the key issues of our time. Secondly, while the age-appropriate design amendments your Lordships’ House made to the Data Protection Act 2018 have made a start in ensuring that the UK is a safe place for children to be online, much still hangs on the progress of the as yet unpublished online harms Bill. Sadly, there is still rather a long way to go before that become law. If, and when, the online harms Bill, assuming it retains its present ambitions, becomes law, it may provide a bulwark against any tendency the Government may have in future to trade away current or future protections for our children and other vulnerable users. But we are not there yet.

The points made by my noble friends Lord Knight and Lord McNally about the way in which the US tech giant lobby has been forcing changes on recent trade deals are, frankly, chilling. This is not the time to weaken current protections for children online. We must ensure that future trade deals protect our current, and prospective, domestic legislation, and we can do that by taking this issue off the negotiating table.

Photo of Lord Grimstone of Boscobel Lord Grimstone of Boscobel The Minister of State, Department for International Trade, The Minister of State, Department for Business, Energy and Industrial Strategy

My Lords, Amendment 23, tabled by the noble Baroness, Lady Kidron, and the noble Lords, Lord Stevenson of Balmacara, Lord Clement-Jones and Lord Sheikh, would preclude the Government from signing an international trade agreement that is not compliant with existing domestic and international obligations relating to the protection of children on the internet, including under the Data Protection Act.

I thank noble Lords, particularly the noble Baroness, Lady Kidron, for meeting me and discussing this in more depth. Nobody can doubt the passion and resolve she brings to this issue, and I can assure her that the Government share her concerns, and those of other noble Lords who have spoken so powerfully in the debate. I personally fully share those concerns.

That is why I am pleased to confirm that our trade agreements are already fully compliant with existing domestic and international policies protecting children on the internet. We are already committed to making the UK the safest place in the world to be online. We carefully consider any interaction between trade policy and impacts on user protection in trade agreements.

I am pleased that we have now published the full government response to the Online Harms White Paper consultation, setting out the new expectations on companies to keep their users safe online. Our proposals mean that companies must tackle illegal content on their platforms and protect children from harmful content and activity online. The full government response will be followed by legislation, which we are working on at pace, and which will be ready this year. As my noble friend Lady Noakes emphasised, no FTA, no matter who it is with, will be able to overturn this legislation. I hope all noble Lords agree that it is absolutely inconceivable and, frankly, verging on the insulting to suggest that any Government of any persuasion would ever seek to trade away children’s safety for a trade advantage.

The major platforms will need to set out clearly what legal content is acceptable on their platform and stick to it. I am very pleased that these laws will close the gap between what companies say they do and what they will actually do. We are also confirming the decision to appoint Ofcom as the regulator, and we will give it a range of enforcement powers, including substantial fines. Our proposals will set out how the proposed legal duty of care on online companies will work in practice; they will protect children, with the strongest possible protections for children and young people from harmful or inappropriate content.

Social media, websites, apps and other services which host user-generated content or allow people to talk to others online will have a duty to remove and limit the spread of illegal content such as child sexual abuse, terrorist material and suicide content. They will need to do far more to protect children from being exposed to harmful content or activities such as grooming, bullying, pornography and the encouragement or promotion of self-harm and eating disorders. Further still, the most popular social media sites will need to go further by setting and enforcing clear terms and conditions which explicitly state how they will handle content that is legal but could cause significant physical or psychological harm to adults.

As I have previously stated, online harms protections belong in online harms legislation, and the legislation that the DCMS will be bringing forward is the appropriate vehicle to address the matters raised by the noble Baroness. Through the Trade Bill, we are seeking in part simply to provide continuity in trading relationships with existing partners. As I have mentioned, the FTAs that we have brought into effect with 63 countries are all consistent with obligations relating to the protection of children on the internet, including those found in the Data Protection Act. We have replicated existing EU agreements, which are themselves fully compliant with such obligations.

I also emphasise that there are no powers in this legislation to implement a future FTA with the USA—whether mini, moderate or max—and I direct the noble Baroness’s attention to the negotiating objectives we have published for the US negotiations, which give far more information on our vision in this area.

I am pleased that we are entering a new age of accountability for tech, to protect children and vulnerable users and to restore much-needed trust in this industry. As such, I ask the noble Baroness to withdraw this amendment.

Photo of Baroness Kidron Baroness Kidron Crossbench 5:00 pm, 6th January 2021

Well, I am somewhat surprised. I want to say at the outset that I do not doubt the passion of the Minister himself for protecting children, just as he does not doubt my passion. But this is not about passion; it is about insurance. I am surprised that, even though he set out at great length the online harms legislation—and I indeed agree with him that that is where we will ensure that all the protections that we wish for children exist—he does not see that, as others have said, this amendment seeks to protect such legislation and existing legislation.

I also have to say—and we have such recent evidence that I do not want to extrapolate—that trading objectives and trading results are two very different things. As many noble Lords have set out, the tech lobby is probably the most powerful lobby in the world now and its ability to get into trade agreements has been eye-watering.

I thank all noble Lords who spoke. If I had not been in favour of this amendment in the beginning, I would have been as a result of noble Lords’ words. They were very powerful and persuasive speeches. I would really just like to say this: many people have said in the course of this debate that it is about using the freedoms we have, setting out the priorities we have and ensuring that children are taken off the table. These are things that we must all agree with. I am actually saddened that the Government, while promising so much to parents and children about online safety, have not adopted this amendment or, indeed, a better-drafted amendment that would satisfy the noble Baroness, Lady Noakes—or, indeed, found another route, which, as I think the Minister will remember, I did offer.

I always take the line that I would prefer to work with government rather than against it to protect children online, because it is an area in which the Government have some cause to be proud. However, in the absence of that possibility, I have no option but to test the opinion of the House.

Ayes 340, Noes 248.

Division number 2 Trade Bill - Report (3rd Day) — Amendment 23

Aye: 340 Members of the House of Lords

No: 248 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

Division conducted remotely on Amendment 23

Amendment 23 agreed.

Photo of Baroness Watkins of Tavistock Baroness Watkins of Tavistock Deputy Chairman of Committees 5:21 pm, 6th January 2021

We now come to the group consisting of Amendment 24. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to a Division must make that clear in the debate.