Amendment 25

Online Safety Bill - Committee (4th Day) – in the House of Lords at 6:00 pm on 2 May 2023.

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Lord Russell of Liverpool:

Moved by Lord Russell of Liverpool

25: Clause 11, page 10, line 13, at end insert—“(c) uphold children’s rights per the United Kingdom’s obligations as a signatory of the United Nations Convention on the Rights of the Child (UNCRC), with reference to General Comment No. 25 (2021) from the Committee on the Rights of the Child on children’s rights in relation to the digital environment.”Member’s explanatory statementThis amendment would mean regulated services would have to have regard for the UN Convention on the Rights of the Child to ensure children are treated according to their evolving capacities, in their best interests, in consideration of their wellbeing and are not locked out of spaces that they have a right to participate in and to access.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

My Lords, I am sorry that it is me again—a bit like a worn 78. In moving Amendment 25, I will speak also to Amendments 78, 187 and 196, all of which speak to the principle of children’s rights as set out in the UN Convention on the Rights of the Child and, more specifically, how those rights are applied to the digital world as covered in the United Nations’ general comment No. 25, which was produced in 2021 and ratified by the UK Government. What we are suggesting and asking for is that the principles in this general comment are reflected in the Bill. I thank the noble Baronesses, Lady Harding, Lady Kennedy and Lady Bennett, and the noble Lord, Lord Alton—who is not with us—for adding their names to these amendments and for their support.

The general comment No. 25 that I mentioned recognises that children’s rights are applicable in the digital world as well as the real world. These amendments try to establish in the Bill the rights of children. Believe it or not, in this rather lengthy Bill there is not a single reference—as far as we can discern—specifically to children’s rights. There are a lot of other words, but that specific phrase is not used, amazingly enough. These amendments are an attempt to get children’s rights specifically into the Bill. Amendments 30 and 105 in the names of the noble Lords, Lord Clement-Jones and Lord Knight, also seek to preserve the well-being of children. Our aims are very similar, but we will try to argue that the convention would achieve them in a particularly effective and concise way.

The online world is not optional for children, given what we know—not least from some of the detailed and harrowing experiences related by various of your Lordships in the course of the Bill. The fact that the online world is not optional for children may be worrying to some adults. We have all heard about parents, grandparents and others who have direct experience of their beloved coming to harm. By contrast, it is also fascinating to note how many senior executives, and indeed founders, of digital companies forbid their own children from possessing and using mobile phones, typically until they are 12 or 14. That is telling us something. If they themselves do not allow their children to have access to some of the online world we are talking about so much, that should give us pause for reflection.

Despite the many harms online, there is undoubted good that all children can benefit from, including in terms of their cognitive and skills development, social development and relationships. There are some brilliant things which come from being online. It is also beneficial because having age-appropriate experiences when they are online is part of their fundamental rights. That, essentially, is what these amendments are about.

Throughout the many years that the Bill has been in gestation, we have heard a lot about freedom of speech and how it must be preserved. Indeed, in contrast to children’s rights not being mentioned once in the Bill, “freedom of expression” appears no less than 49 times. I venture to suggest to your Lordships that there is a degree of imbalance there which should cause us to pause and reflect on whether we have that balance quite right.

I will not go into detail, but the UNCRC is the most widely ratified human rights treaty in history, and it is legally binding on the states which are party to it. The UK is a signatory to this convention, yet if we do not get this right in the Bill, we are in danger of falling behind some of our global counterparts. Although I recognise that saying the name of this organisation may bring some members of the governing party out in a rather painful rash, the EU is incorporating the UNCRC into its forthcoming AI Act. Sweden has already incorporated it into law at a different level, and Canada, New Zealand and South Africa are all doing the same. It is not anything to be worried about. Even Wales incorporated it into its domestic law in 2004, and Scotland did so in 2021. This appears to be something that the English have a particular problem with.

These amendments would ensure that, very importantly, those reading the Bill absolutely know that they must give due consideration to children’s rights. It would not be optional. Amendments 25 and 78 would require services to uphold children’s rights when implementing safety measures. Amendment 187 would reflect children’s rights in Ofcom’s duties, and Amendment 196 would ensure that Ofcom takes into consideration children’s rights when it is making its assessments of risks.

In particular, we have tabled these amendments because one of the possible unintended consequences of the well-meaning and serious attempts by all of us to protect children better is that some of these companies and platforms may decide that having children access some of their services is too much bother. They may decide that it would be simpler to find means to exclude them completely because it would be too much trouble, money or regulatory hassle to try to build a platform or service which they know children will access, as that will impose a serious obligation on them for which they can be held legally accountable. That would be an unintended consequence. We do not want children locked out of services which are essential to their development, education and self-expression. That said, I have probably said enough. I beg to move.

Photo of Lord Weir of Ballyholme Lord Weir of Ballyholme DUP 6:15, 2 May 2023

My Lords, I rise on this group of amendments, particularly with reference to Amendments 25, 78, 187 and 196, to inject a slight note of caution—I hope in a constructive manner—and to suggest that it would be the wrong step to try to incorporate them into this legislation. I say at the outset that I think the intention behind these amendments is perfectly correct; I do not query the intention of the noble Lord, Lord Russell, and others. Indeed, one thing that has struck me as we have discussed the Bill is the commonality of approach across the Chamber. There is a strong common desire to provide a level of protection for children’s rights, but I question whether these amendments are the right vehicle by which to do that.

It is undoubtedly the case that the spirit of the UNCRC is very strongly reflected within the Bill, and I think it moves in a complementary fashion to the Bill. Therefore, again, I do not query the UNCRC in particular. It can act as a very strong guide to government as to the route it needs to take, and I think it has had a level of influence on the Bill. I speak not simply as someone observing the Bill but as someone who, in a previous existence, served as an Education Minister in Northern Ireland and had direct responsibility for children’s rights. The guidance we received from the UNCRC was, at times, very useful to Ministers, so I do not question any of that.

For three reasons, I express a level of concern about these amendments. I mentioned that the purpose of the UNCRC is to act as a guide—a yardstick—for government as to what should be there in terms of domestic protections. That is its intention. The UNCRC itself was never written as a piece of legislation, and I do not think it was the original intention to have it directly incorporated and implemented as part of law. The UNCRC is aspirational in nature, which is very worth while. However, it is not written in a legislative form. At times, it can be a little vague, particularly if we are looking at the roles that companies will play. At times, it sets out very important principles, but ones which, if left for interpretation by the companies themselves, could create a level of tension.

To give an example, there is within the UNCRC a right to information and a right to privacy. That can sometimes create a tension for companies. If we are to take the purpose of the UNCRC, it is to provide that level of guidance to government, to ensure that it gets it right rather than trying to graft UNCRC directly on to domestic law.

Secondly, the effect of these amendments would be to shift the interpretation and implementation of what is required of companies from government to the companies themselves. They would be left to try to determine this, whereas I think that the UNCRC is principally a device that tries to make government accountable for children’s rights. As such, it is appropriate that government has the level of responsibility to draft the regulations, in conjunction with key experts within the field, and to try to ensure that what we have in these regulations is fit for purpose and bespoke to the kind of regulations that we want to see.

To give a very good example, there are different commissioners across the United Kingdom. One of the key groups that the Government should clearly be consulting with to make sure they get it right is the Children’s Commissioners of the different jurisdictions in the United Kingdom. Through that process, but with that level of ownership still lying with government and Ofcom, we can create regulations that provide the level of protection for our children that we all desire to see; whereas, if the onus is effectively shifted on to companies simply to comply with what is a slightly vague, aspirational purpose in these regulations, that is going to lead to difficulties as regards interpretation and application.

Thirdly, there is a reference to having due regard to what is in the UNCRC. From my experience, both within government and even seeing the way in which government departments do that—and I appreciate that “due regard” has case law behind it—even different government departments have tended to interpret that differently and in different pieces of legislation. At one extreme, on some occasions that effectively means that lip service has been paid to that by government departments and, in effect, it has been largely ignored. Others have seen it as a very rigorous duty. If we see that level of disparity between government departments within the same Government, and if this is to be interpreted as a direct instruction to and requirement of companies of varying sizes—and perhaps with various attitudes and feelings of responsibility on this subject—that creates a level of difficulty in and of itself.

My final concern in relation to this has been mentioned in a number of debates on various groups of amendments. Where a lot of Peers would see either a weakness in the legislation or something else that needs to be improved, we need to have as much consistency and clarity as possible in both interpretation and implementation. As such, the more we move away from direct regulations, which could then be put in place, to relying on the companies themselves interpreting and implementing, perhaps in different fashions, with many being challenged by the courts at times, the more we create a level of uncertainty and confusion, both for the companies themselves and for users, particularly the children we are looking to protect.

While I have a lot of sympathy for the intention of the noble Lord, Lord Russell, and while we need to find a way to incorporate into the Bill in some form how we can drive children’s rights more centrally within this, the formulation of the direct grafting of the UNCRC on to this legislation, even through due regard, is the wrong vehicle for doing it. It is inappropriate. As such, it is important that we take time to try to find a better vehicle for the sort of intention that the noble Lord, Lord Russell, and others are putting forward. Therefore, I urge the noble Lord not to press his amendments. If he does, I believe that the Committee should oppose the amendments as drafted. Let us see if, collectively, we can find a better and more appropriate way to achieve what we all desire: to try to provide the maximum protection in a very changing world for our children as regards online safety.

Photo of Baroness Harding of Winscombe Baroness Harding of Winscombe Conservative

My Lords, I support these amendments. We are in the process of having a very important debate, both in the previous group and in this one. I came to this really important subject of online safety 13 years ago, because I was the chief executive of a telecoms company. Just to remind noble Lords, 13 years ago neither Snap, TikTok nor Instagram—the three biggest platforms that children use today—existed, and telecoms companies were viewed as the bad guys in this space. I arrived, new to the telecoms sector, facing huge pressure—along with all of us running telecoms companies—from Governments to block content.

I often felt that the debate 13 years ago too quickly turned into what was bad about the internet. I was spending the vast majority of my working day trying to encourage families to buy broadband and to access this thing that you could see was creating huge value in people’s lives, both personal and professional. Sitting on these Benches, I fundamentally want to see a society with the minimum amount of regulation, so I was concerned that regulating internet safety would constrain innovation; I wanted to believe that self-regulation would work. In fact, I spent many hours in workshops with the noble Baroness, Lady Kidron, and many others in this Chamber, as we tried to persuade and encourage the tech giants—as everyone started to see that it was not the telecoms companies that were the issue; it was the emerging platforms—to self-regulate. It is absolutely clear that that has failed. I say that with quite a heavy heart; it has genuinely failed, and that is why the Bill is so important: to enshrine in law some hard regulatory requirements to protect children.

That does not change the underlying concern that I and many others—and everyone in this Chamber—have, that the internet is also potentially a force for good. All technology is morally neutral: it is the human beings who make it good or bad. We want our children to genuinely have access to the digital world, so in a Bill that is enshrining hard gates for children, it is really important that it is also really clear about the rights that children have to access that technology. When you are put under enormous pressure, it is too easy—I say this as someone who faced it 13 years ago, and I was not even facing legislation—to try to do what you think your Government want to do, and then end up causing harm to the individuals you are actually trying to protect. We need this counterbalance in this Bill. It is a shame that my noble friend Lord Moylan is not in his place, because, for the first time in this Committee, I find myself agreeing with him. It is hugely important that we remember that this is also about freedom and giving children the freedom to access this amazing technology.

Some parts of the Bill are genuinely ground-breaking, where we in this country are trying to work out how to put the legal scaffolding in place to regulate the internet. Documenting children’s rights is not something where we need to start from scratch. That is why I put my name to this amendment: I think we should take a leaf from the UN Convention on the Rights of the Child. I recognise that the noble Lord, Lord Weir of Ballyholme, made some very thought-provoking comments about how we have to be careful about the ambiguity that we might be creating for companies, but I am afraid that ambiguity is there whether we like it or not. These are not just decisions for government: the tension between offering services that will brighten the lives of children but risking them as well are exactly behind the decisions that technology companies take every day. As the Bill enshrines some obligations on them to protect children from the harms, I firmly believe it should also enshrine obligations on them to offer the beauty and the wonder of the internet, and in doing that enshrine their right to this technology.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green 6:30, 2 May 2023

My Lords, I have attached my name to Amendment 25 in the name of the noble Lord, Lord Russell, and I rise to speak primarily to that. It is a great pleasure to follow the noble Baroness, Lady Harding, and agree with every word she has just said. I will draw on two elements of my personal history that she reminded me of. As a journalist in country Australia in the early 1990s—pre-internet days—I worked the night shift, and at least once a week we would get a frantic phone call from a parent calling on behalf of a child along the lines of, “Do you know anything about dolphins?” A school project had just been discovered that needed to be done by the next morning, and the source of information that the parent thought of was, “The local newspaper—they might be able to tell us something!” I am slightly ashamed to say that we had a newspaper to get out and we very quickly told them to go away, so we were not a good source of information in that case. Most people in your Lordships’ House will remember—but most young people will have no recollection of—a time when there was little access to information outside the hours when the library was open or you could go to a bookshop. There were literally no other sources available. We have to consider this amendment in the light of that.

I also want to slightly disagree with the comments of the noble Lord, Lord Bethell, on the previous group. He suggested that it was only with the arrival of phones that the internet became primarily or significantly a children’s thing. The best I can date it is that either in 1979 or 1980 I was playing “Lemonade Stand” on one of the early Apples. This might have been considered to be a harmful game from some political perspectives, given that it very much encouraged a capitalist mindset, profit taking and indeed the Americanisation of culture—but none the less that was back in 1980, if not 1979, and children were there. If we look back over the history of the internet, we see that some of the companies started out with young people, under the age of 18 in some cases, who have been at the forefront of innovation and development of what we now think of as our social media or internet world. This is the children’s world as much as it is the adults’ world, and that is the reality.

I will pick up the points made by the noble Lord, Lord Weir of Ballyholme, who suggested that the UN Convention on the Rights of the Child was only a guide to government and not law. It is a great pity that the noble Baroness, Lady Kennedy of The Shaws, is not in her place, because she is far better equipped to deal with this angle than I am. But I will give it a go. Children’s rights are humans’ rights. The UN Convention on the Rights of the Child is the most backed and most ratified rights convention—

Photo of Lord Weir of Ballyholme Lord Weir of Ballyholme DUP

I appreciate what the noble Baroness is saying, but I made a slightly different point. I am suggesting not that what is there was not meant to be law but that it was not written in a form which should be simply directly put in as legislation. It was not drafted in that format on that basis, which is why a direct graft on to a domestic piece of legislation is not quite the way to do it. It is about using that as guidance as to what should be in the law, rather than simply a direct incorporation.

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

I thank the noble Lord for his clarification, although, speaking not as a lawyer, my understanding is that a human right is a legal right; it is a law—a most fundamental right. In addition, every country in the world has ratified this except for the United States—which is another issue. I also point out that it is particularly important that we include reference to children’s rights in this Bill, given the fact that we as a country currently treat our children very badly. There is a huge range of issues, and we should have a demonstration in this and every Bill that the rights of children are respected across all aspects of British society.

I will not get diverted into a whole range of those, but I point noble Lords to a report to the United Nations from the Equality and Human Rights Commission in February this year that highlighted a number of ways in which children’s rights are not being lived up to in the UK. The most relevant part of this letter that the EHRC sent to the UN stresses that it is crucial to preserve children’s rights to accessible information and digital connectivity. That comes from our EHRC.

I think it was the noble Lord, Lord Russell, who referred to the fact that we live in a global environment, and of course our social media and the internet is very much a global world. I urge everyone who has not done so to look at a big report done by UNICEF in 2019, Global Kids Online, which, crucially, involved a huge amount of surveys, consultation and consideration by young people. Later we will get to an amendment of mine which says that we should have the direct voice of young people overseeing the implementation of the Bill. I am talking not about the NGOs that represent them but specifically about children: we need to listen to the children and young people.

The UNICEF report said that it was quite easy to defend access to information and to reputable sources, but showed that accessing entertainment activities—some of the things that perhaps some grandparents in this Chamber might have trouble with—was associated with the positive development of digital skills. Furthermore, the report says:

“When parents restrict children’s internet use”—

of course, this could also apply to the Government restricting their internet use—

“this has a negative effect on children’s information-seeking and privacy skills”.

So, if you do not give children the chance to develop these skills to learn how to navigate the internet, and they suddenly go to it at age 18 and a whole lot of stuff is out there that they have not developed any skills to deal with, you are setting yourself up for a real problem. So UNICEF stresses the real need to have children’s access.

Interestingly, this report—which was a global report from UNICEF—said that

“fewer than one third of children had been exposed to” something they had found uncomfortable or upsetting in the preceding year. That is on the global scale. Perhaps that is an important balance to some of the other debates we have had in your Lordships’ House on the Bill.

Other figures from this report that I think are worth noting—this is from 2019, so these figures will undoubtedly have gone up—include the finding that

“one in three children globally is … an internet user and …. one in three internet users is a child”.

We have been talking about this as though the internet is “the grown-ups’ thing”, but that is not the global reality. It was co-created, established and in some cases invented by people under the age of 18. I am afraid to say that your Lordships’ House is not particularly well equipped to deal with this, but we need to understand this as best we possibly can. I note that the report also said, looking at the sustainable development goals on quality of education, good jobs and reducing inequality, that internet access for children was crucial.

I will make one final point. I apologise; I am aware that I have been speaking for a while, but I am passionate about these issues. Children and young people have agency and the ability to act and engage in politics. In several nations on these islands, 16 and 17 year-olds have the vote. I very much hope that that will soon also be the case in England, and indeed I hope that soon children even younger than that that will have the vote. I was talking about that with a great audience of year nines at the Queen’s School in Bushey on Friday with Learn with the Lords. Those children would have a great opportunity—

Photo of Lord Harlech Lord Harlech Lord in Waiting (HM Household) (Whip)

My Lords, we have a very full order of business to get through, so I encourage the noble Baroness to remain on topic.

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

I think that is on topic. If 16 and 17 year-olds are voting, they have a right to access internet information about voting. I suggest that that is on topic.

My final point—for the pleasure of the noble Lord—is that historically we have seen examples where blocks and filters have denied children and young people who identify as LGBTQI+ access to crucial information for them. That is an example of the risk if we do not allow them right of access. On the most basic children’s right of all, we have also seen examples of blocks and filters that have stopped access to breastfeeding information on the internet. Access is a crucial issue, and what could be a more obvious way to allow it than by writing in the United Nations Declaration on the Rights of the Child?

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

My Lords, I welcome many of these amendments. I found reading them slightly more refreshing than the more dystopian images we have had previously. It is quite exciting, actually, because the noble Baroness, Lady Harding, sounded quite upbeat, which is in contrast to previous contributions on what the online world is like.

I want to defend the noble Baroness, Lady Bennett of Manor Castle, from the intervention that suggested that she was going off topic, because the truth is that these amendments are calling for children’s rights to be introduced into legislation via this Bill. I disagree with that, but we should at least talk about it if it is in the amendments.

Whereas I like the spirit of the amendments, it seems to me that children’s rights, which I consider to have huge constitutional implications, require a proper Bill to bring them in and not to be latched on to this one. My concern is that children’s rights can be used to undermine adult authority and are regularly cited as a way of undermining parents’ rights, and that children under 18 cannot enact political rights. Whether they have agency or capacity, they are not legally able to exercise their political rights, and therefore someone has to act on their behalf as an intermediary—as a third party—which is why it can become such a difficult, politicised area.

I say that because it would be a fascinating discussion to have. I do not think this is the Bill to have it on, but the spirit of the amendments raises issues that we should bear in mind for the rest of our discussion. During lockdown, we as a society stopped young people having any social interaction at all. They were isolated, and a lot of new reports suggest that young people’s mental health has suffered because they were on their own. They went online and, in many instances, it kept them sane. That is probably true not just of young people but of the rest of us, by the way, but I am making the point that it was not all bad.

Over recent years, as we have been concerned about children’s safety and protecting them, we have discouraged them from roaming far from home. They do not go out on their bikes or run around all the time; they are told, “Come back home, you’ll be safe”. Of course, they have gone into their room and gone online, and now we say, “That’s not safe either”.

I want to acknowledge that the online world has helped young people overcome the problems of isolation and lack of community that the adult world has sometimes denied them developing. That is important: it can be a source of support and solidarity. Children need spaces to talk, engage and interact with friends, mates, colleagues and so on where they can push boundaries, and all sorts of things, without grown-ups interfering. That is what we have always understood from child development. It is why you do not have spies wandering around all the time following them.

The main thing is that we know the difference between a four year-old and a 14 year-old. In the Bill, we call a child anyone under 18, but I was glad that the amendments acknowledge that distinction in terms of appropriateness is important. When young people are online, or if they are involved in encrypted messages, such as WhatsApp, that does not mean they are all planning to join county lines or are being groomed—it is not all dodgy. Appropriateness in terms of child age and not always imagining that the worst is happening are an important counter that these amendments bring to some of the pessimism that we have heard until now.

The noble Lord, Lord Russell, said that children’s rights are not mentioned in the Bill but freedom of expression has been mentioned 49 times. First, it is not a Bill about children’s rights, but when he says that freedom of expression has been mentioned 49 times, I assure him that quantity is not quality and the mention of it means nothing.

Photo of Baroness Harding of Winscombe Baroness Harding of Winscombe Conservative 6:45, 2 May 2023

I want to challenge the noble Baroness’s assertion that the Bill is not about children’s rights. Anyone who has a teenage child knows that their right to access the internet is keenly held and fought out in every household in the country.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

The quip works, but political rights are not quips. Political rights have responsibilities, and so on. If we gave children rights, they would not be dependent on adults and adult society. Therefore, it is a debate; it is a row about what our rights are. Guess what. It is a philosophical row that has been going on all around the world. I am just suggesting that this is not the place—

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

I am sorry, but I must point out that 16 and 17 year-olds in Scotland and Wales have the vote. That is a political right.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

And it has been highly contentious whether the right to vote gives them independence. For example, you would still be accused of child exploitation if you did anything to a person under 18 in Scotland or Wales. In fact, if you were to tap someone and it was seen as slapping in Scotland and they were 17, you would be in trouble. Anyway, it should not be in this Bill. That is my point.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, perhaps I may intervene briefly, because Scotland and Wales have already been mentioned. My perception of the Bill is that we are trying to build something fit for the future, and therefore we need some broad underlying principles. I remind the Committee that the Well-being of Future Generations Act (Wales) Act set a tone, and that tone has run through all aspects of society even more extensively than people imagined in protecting the next generation. As I have read them, these amendments set a tone to which I find it difficult to understand why anyone would object, given that that is a core principle, as I understood it, behind building in future-proofing that will protect children, among others.

Photo of Baroness Healy of Primrose Hill Baroness Healy of Primrose Hill Deputy Chairman of Committees

My Lords, I support the amendments in the name of the noble Lord, Lord Russell, to require regulated services to have regard to the UN Convention on the Rights of the Child. As we continue to attempt to strengthen the Bill by ensuring that the UK will be the safest place for children to be online, there is a danger that platforms may take the easy way out in complying with the new legislation and just block children entirely from their sites. Services must not shut children out of digital spaces altogether to avoid compliance with the child safety duties, rather than designing services with their safety in mind. Children have rights and, as the UN convention makes clear, they must be treated according to their evolving capacities and in their best interests in consideration of their well-being.

Being online is now an essential right, not an option, to access education, entertainment and friendship, but we must try to ensure that it is a safe space. As the 5Rights Foundation points out, the Bill risks infringing children’s rights online, including their rights to information and participation in the digital world, by mandating that services prevent children from encountering harmful content, rather than ensuring services are made age appropriate for children and safe by design, as we discussed earlier. As risk assessments for adults have been stripped from the Bill, this has had the unintended consequence of rendering a child user relative to an adult user even more costly, as services will have substantial safety duties to comply with to protect children. 5Rights Foundation warns that this will lead services to determine that it is not worth designing services with children’s safety in mind but that it could be more cost effective to lock them out entirely.

Ofcom must have a duty to have regard for the UNCRC in its risk assessments. Amendment 196 would ensure that children’s rights are reflected in Ofcom’s assessment of risks, so that Ofcom must have regard for children’s rights in balancing their rights to be safe against their rights to access age-appropriate digital spaces. This would ensure compliance with general comment No. 25, as the noble Lord, Lord Russell, mentioned, passed in 2021, to protect children’s rights to freedom of expression and privacy. I urge the Ministers to accept these amendments to ensure that the UK will be not only the safest place for children to be online but the best place too, by respecting and protecting their rights.

Photo of Baroness Kidron Baroness Kidron Crossbench

My Lords, I support all the amendments in this group, and will make two very brief points. Before I do, I believe that those who are arguing for safety by design and to put harms in the Bill are not trying to restrict the freedom of children to access the internet but to give the tech sector slightly less freedom to access children and exploit them.

My first point is a point of principle, and here I must declare an interest. It was my very great privilege to chair the international group that drafted general comment No. 25 on children’s rights in relation to the digital environment. We did so on behalf of the Committee on the Rights of the Child and, as my noble friend Lord Russell said, it was adopted formally in 2021. To that end, a great deal of work has gone into balancing the sorts of issues that have been raised in this debate. I think it would interest noble Lords to know that the process took three years, with 150 submissions, many by nation states. Over 700 children in 28 countries were consulted in workshops of at least three hours. They had a good shout and, unlike many of the other general comments, this one is littered with their actual comments. I recommend it to the Committee as a very concise and forceful gesture of what it might be to exercise children’s rights in a balancing way across all the issues that we are discussing. I cannot remember who, but somebody said that the online world is not optional for children: it is where they grow up; it is where they spend their time; it is their education; it is their friendships; it is their entertainment; it is their information. Therefore, if it is not optional, then as a signatory to the UNCRC we have a duty to respect their rights in that environment.

My second point is rather more practical. During the passage of the age-appropriate design code, of which we have heard much, the argument was made that children were covered by the amendment itself, which said they must be kept in mind and so on. I anticipate that argument being made here—that we are aligning with children’s rights, apart from the fact that they are indivisible and must be done in their entirety. In that case, the Government happily accepted that it should be explicit, and it was put in the Data Protection Act. It was one of the most important things that happened in relation to the age-appropriate design code. We might hope that, when this Bill is an Act, it will all be over—our job will be done and we can move on. However, after the Data Protection Act, the most enormous influx of lobbying happened, saying, “Please take the age down from 18 to 13”. The Government, and in that case the ICO, shrugged their shoulders and said, “We can’t; it’s on the face of the Bill”, because Article 1 of the UNCRC says that a child is anyone under the age of 18.

The evolving capacities of children are central to the UNCRC, so the concerns of the noble Baroness, Lady Fox, which I very much share, that a four year-old and a 14 year-old are not the same, are embodied in that document and in the general comment, and therefore it is useful.

These amendments are asking for that same commitment here—to children and to their rights, and to their rights to protection, which is at the heart of so much of what we are debating, and their well-being. We need their participation; we need a digital world with children in it. Although I agreed very much with the noble Baroness, Lady Bennett, and her fierce defending of children’s rights, there are 1 billion children online. If two-thirds of them have not seen anything upsetting in the last year, that rather means that one-third of 1 billion children have—and that is too many.

Photo of Baroness Foster of Aghadrumsee Baroness Foster of Aghadrumsee Non-affiliated

My Lords, I did not intend to speak in this debate but I have been inspired by it.

I was here for the encryption debate last week, which I did not speak in. One of the contributions was around unintended consequences of the legislation, and I am concerned about unintended consequences here.

I absolutely agree with the comments of the noble Baroness, Lady Bennett, around the need for children to engage on the internet. Due to a confidence and supply agreement with the then Government back in 2017, I ensured that children and adults alike in Northern Ireland have the best access to the internet in the United Kingdom, and I am very proud of that. Digital literacy is covered in a later amendment, Amendment 91, which I will be strongly supporting. It is something that everybody needs to be involved in, not least our young people—and here I declare an interest as the mother of a 16 year-old.

I have two concerns. The first was raised by my friend the noble Lord, Lord Weir, around private companies being legally accountable for upholding an international human rights treaty. I am much more comfortable with Amendments 187 and 196, which refer to Ofcom. I think that is where the duty should be. I have an issue not with the convention but with private companies being held responsible for it; Ofcom should be the body responsible.

Secondly, I listened very carefully to what the noble Baroness, Lady Kidron, said about general comment No. 25. If what I say is incorrect, I hope she will say so. Is general comment No. 25 a binding document on the Government? I understood that it was not.

Photo of Baroness Kidron Baroness Kidron Crossbench

We need to see the UNCRC included in the Bill. The convention is never opened up again, and how it makes itself relevant to the modern world is through the general comments; that is how the Committee on the Rights of the Child would interpret it.

Photo of Baroness Foster of Aghadrumsee Baroness Foster of Aghadrumsee Non-affiliated

So it is an interpretive document. The unintended consequences piece was around general comment No. 25 specifically having reference to children being able to seek out content. That is certainly something that I would be concerned about. I am sure that we will discuss it further in the next group of amendments, which are on pornography. If young people were able to seek out harmful content, that would concern me greatly.

I support Amendments 187 and 196, but I have some concerns about the unintended consequences of Amendment 25.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat Lords Spokesperson (Science, Innovation and Technology)

My Lords, I think this may have been a brief interlude of positivity. I am not entirely convinced, in view of some of the points that have been made, but certainly I think that it was intended to be.

I will speak first to Amendments 30 and 105. I do not know what the proprieties are, but I needed very little prompting from the LEGO Group to put forward amendments that, in the online world, seek to raise the expectation that regulated services must go beyond purely the avoidance of risk of harm and consider the positive benefits that technology has for children’s development and their rights and overall well-being. It has been extremely interesting to hear that aspect of today’s debate.

It recognises that through the play experience of children, both offline and online, it has an impact on the lives of millions of children that it engages with around the world, and it recognises the responsibility to ensure that, wherever it engages with them, the impact is positive and that it protects and upholds the rights of children and fosters their well-being as part of its mission.

We have heard about UN general comment 25 on children’s rights in the digital environment. The Government’s response to the drafting process recognised the collective responsibility of all Governments and stakeholders to ensure

“that children can benefit from digital opportunities, and protecting them from online harms”.

In line with this, the Bill now offers the opportunity to require regulated services to not only mitigate and manage risk in their service design but to consider the benefits of the service to children’s rights and well-being. I am extending it rather further than some of the earlier discussions.

I agree that it is important to include reference to both rights and well-being in the Bill. An individual child may have low well-being even if all their rights are respected. For example, if a child does not feel socially connected or empowered in a positive online environment, they may experience low well-being even if their right to participate online is being respected. As drafted, the Bill instructs regulated services to have regard

“to the importance of protecting the rights of users and interested persons” and give due consideration to benefits such as freedom of expression

“when deciding on, and implementing, safety measures and policies” to comply with the regime.

I believe that, if the Bill is to fully deliver for children, it needs to ensure that there is consideration of the benefits of the service to children’s rights and well-being. Without this inclusion, there is a risk that the design of online services will disproportionately restrict children’s rights to participate in the online environment and the benefit it brings to their well-being. By instructing service providers to design for the benefits that technology can bring to children’s rights and well-being alongside the mitigation of risk, which we have heard so much about, we have a real opportunity in the Bill to create a blueprint for the online environment that can both protect and nurture children’s potential by supporting and empowering them, unleashing their creativity and helping them learn. We have heard many positive comments around the House on that. I hope the Minister will understand the clear intention here and take on board the positive intent of these amendments.

Briefly, many noble Lords have emphasised the importance of the UN Convention on the Rights of the Child. I am not going to add greatly to that debate, but children have a right to be safe and to privacy. They also have rights to information and participation in free speech, both online and offline. It was very interesting to hear, in particular from the noble Baroness, Lady Healy, and the noble Lord, Lord Russell, about their view that services may shut children out of digital spaces altogether to avoid compliance with the child safety duties, rather than designing services with their safety in mind. That is because the Bill focuses on content moderation rather than system design: we are back, in a sense, into that loop.

I believe that the reference to the UNCRC general comment 25 would be very useful. I understand the points made by the noble Lord, Lord Weir, and certainly the spirit in which he made them, but I cannot see why “having regard to” the UNCRC could not be in the Bill. I do not see that that is unduly prescriptive or difficult to interpret in those circumstances, or overly vague. So, on these Benches, we support those amendments.

Photo of Lord Knight of Weymouth Lord Knight of Weymouth Labour 7:00, 2 May 2023

My Lords, we too support the spirit of these amendments very much and pay tribute to the noble Lord, Lord Russell, for tabling them.

In many ways, I do not need to say very much. I think the noble Baroness, Lady Kidron, made a really powerful case, alongside the way the group was introduced in respect of the importance of these things. We do want the positivity that the noble Baroness, Lady Harding, talked about in respect of the potential and opportunity of technology for young people. We want them to have the right to freedom of expression, privacy and reliable information, and to be protected from exploitation by the media. Those happen to be direct quotes from the UN Convention on the Rights of the Child, as some of the rights they would enjoy. Amendments 30 and 105, which the noble Lord, Lord Clement-Jones, tabled—I attached my name to Amendment 30—are very much in that spirit of trying to promote well-being and trying to say that there is something positive that we want to see here.

In particular, I would like to see that in respect of Ofcom. Amendment 187 is, in some ways, the more significant amendment and the one I most want the Minister to reflect on. That is the one that applies to Ofcom: that it should have reference to the UN Convention on the Rights of the Child. I think even the noble Lord, Lord Weir, could possibly agree. I understand his thoughtful comments around whether or not it is right to encumber business with adherence to the UN convention, but Ofcom is a public body in how it carries out its duties as a regulator. There are choices for regulation. Regulation can just be about minimum standards, but it can also be about promoting something better. What we are seeking here in trying to have reference to the UN convention is for Ofcom to regulate for something more positive and better, as well as police minimum standards. On that basis, we support the amendments.

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Parliamentary Under Secretary of State (Department for Culture, Media and Sport)

My Lords, I will start in the optimistic spirit of the debate we have just had. There are many benefits to young people from the internet: social, educational and many other ways that noble Lords have mentioned today. That is why the Government’s top priority for this legislation has always been to protect children and to ensure that they can enjoy those benefits by going online safely.

Once again, I find myself sympathetic to these amendments, but in a position of seeking to reassure your Lordships that the Bill already delivers on their objectives. Amendments 25, 78, 187 and 196 seek to add references to the United Nations Convention on the Rights of the Child and general comment 25 on children’s rights in relation to the digital environment to the duties on providers and Ofcom in the Bill.

As I have said many times before, children’s rights are at the heart of this legislation, even if the phrase itself is not mentioned in terms. The Bill already reflects the principles of the UN convention and the general comment. Clause 207, for instance, is clear that a “child” means a person under the age of 18, which is in line with the convention. All providers in scope of the Bill need to take robust steps to protect users, including children, from illegal content or activity on their services and to protect children from content which is harmful to them. They will need to ensure that children have a safe, age-appropriate experience on services designed for them.

Both Ofcom and service providers will also have duties in relation to users’ rights to freedom of expression and privacy. The safety objectives will require Ofcom to ensure that services protect children to a higher standard than adults, while also making sure that these services account for the different needs of children at different ages, among other things. Ofcom must also consult bodies with expertise in equality and human rights, including those representing the interests of children, for instance the Children’s Commissioner. While the Government fully support the UN convention and its continued implementation in the UK, it would not be appropriate to place obligations on regulated services to uphold an international treaty between state parties. We agree with the reservations that were expressed by the noble Lord, Lord Weir of Ballyholme, in his speech, and his noble friend Lady Foster.

The convention’s implementation is a matter for the Government, not for private businesses or voluntary organisations. Similarly, the general comment acts as guidance for state parties and it would not be appropriate to refer to that in relation to private entities. The general comment is not binding and it is for individual states to determine how to implement the convention. I hope that the noble Lord, Lord Russell, will feel reassured that children’s rights are baked into the Bill in more ways than a first glance may suggest, and that he will be content to withdraw his amendment.

The noble Lord, Lord Clement-Jones, in his Amendments 30 and 105, seeks to require platforms and Ofcom to consider a service’s benefits to children’s rights and well-being when considering what is proportionate to fulfil the child safety duties of the Bill. They also add children’s rights and well-being to the online safety objectives for user-to-user services. The Bill as drafted is focused on reducing the risk of harm to children precisely so that they can better enjoy the many benefits of being online. It already requires companies to take a risk-based and proportionate approach to delivering the child safety duties. Providers will need to address only content that poses a risk of harm to children, not that which is beneficial or neutral. The Bill does not require providers to exclude children or restrict access to content or services that may be beneficial for them.

Children’s rights and well-being are already a central feature of the existing safety objectives for user-to-user services in Schedule 4 to the Bill. These require Ofcom to ensure that services protect children to a higher standard than adults, while making sure that these services account for the different needs of children at different ages, among other things. On this basis, while I am sympathetic to the aims of the amendments the noble Lord has brought forward, I respectfully say that I do not think they are needed.

More pertinently, Amendment 30 could have unintended consequences. By introducing a broad balancing exercise between the harms and benefits that children may experience online, it would make it more difficult for Ofcom to follow up instances of non-compliance. For example, service providers could take less effective safety measures to protect children, arguing that, as their service is broadly beneficial to children’s well-being or rights, the extent to which they need to protect children from harm is reduced. This could mean that children are more exposed to more harmful content, which would reduce the benefits of going online. I hope that this reassures the noble Lord, Lord Russell, of the work the Bill does in the areas he has highlighted, and that it explains why I cannot accept his amendments. I invite him to withdraw Amendment 25.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

My Lords, I thank all noble Lords for taking part in this discussion. I thank the noble Lord, Lord Weir, although I would say to him that his third point—that, in his experience, the UNCRC is open to different interpretations by different departments—is my experience of normal government. Name me something that has not been interpreted differently by different departments, as it suits them.

Photo of Lord Weir of Ballyholme Lord Weir of Ballyholme DUP

I entirely take that point. I was making the slightly wider point—not specifically with regard to the UNCRC—that, whenever legislative provision has been made that a particular department has to have due regard to something, while there is case law, “due regard” has tended to be treated very differently by different departments. So, if even departments within the same Government treat that differently, how much more differently would private companies treat it?

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

I would simply make the point that it would probably be more accurate to say that the departments treat it with “due disregard”;

This has been a wide ranging debate and I am not going to go through all the different bits and pieces. I recommend that noble Lords read United Nations general comment 25 as it goes, in great detail, right to the heart of the issues we are talking about. For example —this is very pertinent to the next group of amendments—it explicitly protects children from pornography, so I absolutely recommend that it be mentioned in the next group of amendments.

As I expected, the Minister said, “We are very sympathetic but this is not really necessary”. He said that children’s rights are effectively baked into the Bill already. But what is baked into something that children—for whom this is particularly relevant—or even adults might decide to consume is not always immediately obvious. There are problems with an approach whereby one says, “It’s fine because, if you really understood this rather complicated legislation, it would become completely clear to you what it means”. That is a very accurate and compelling demonstration of exactly why some of us have concerns about this well-intentioned Bill. We fear that it will become a sort of feast, enabling company lawyers and regulators to engage in occasionally rather arcane discourse at great expense, demonstrating that what the Government claim is clearly baked in is not so clearly baked in.

A common theme in many of these amendments on children’s rights is that it is important that these rights are not implicitly covered in the Bill, as they are in myriad cases, but that it should be stated more clearly in key places in the Bill that it explicitly is about helping children and protecting their rights. It should be about protecting their right to be online, but also their right not to be abused or suffer harm online. That is at the heart of what we are trying to do. I suspect there is rich room for further discussion to see if we can make some of this slightly less “baked in” and find some form of legislative icing, with hundreds and thousands, which makes it completely clear which children’s rights are being protected and how they will be protected. With that, I beg leave to withdraw the amendment.

Amendment 25 withdrawn.

Amendments 26 and 27 not moved.