Lord Parkinson of Whitley Bay:

Moved by Lord Parkinson of Whitley Bay

236A: After Clause 194, insert the following new Clause—

“Power to regulate app stores

(1) Subject to the following provisions of this section and section (Power to regulate app stores: supplementary), the Secretary of State may by regulations amend any provision of this Act to make provision for or in connection with the regulation of internet services that are app stores.

(2) Regulations under this section may not be made before OFCOM have published a report under section (OFCOM’s report about use of app stores by children)(report about use of app stores by children).

(3) Regulations under this section may be made only if the Secretary of State, having considered that report, considers that there is a material risk of significant harm to an appreciable number of children presented by either of the following, or by both taken together—

(a) harmful content present on app stores, or

(b) harmful content encountered by means of regulated apps available in app stores.

(4) Before making regulations under this section the Secretary of State must consult—

(a) persons who appear to the Secretary of State to represent providers of app stores,

(b) persons who appear to the Secretary of State to represent the interests of children (generally or with particular reference to online safety matters),

(c) OFCOM,

(d) the Information Commissioner,

(e) the Children’s Commissioner, and

(f) such other persons as the Secretary of State considers appropriate.

(5) In this section and in section (Power to regulate app stores: supplementary)—

“amend” includes repeal and apply (with or without modifications);

“app” includes an app for use on any kind of device, and “app store” is to be read accordingly;

“content that is harmful to children” has the same meaning as in Part 3 (see section 54);

“harmful content” means—

(a) content that is harmful to children,

(b) search content that is harmful to children, and

(c) regulated provider pornographic content;

“regulated app” means an app for a regulated service;

“regulated provider pornographic content” has the same meaning as in Part 5 (see section 70);

“search content” has the same meaning as in Part 3 (see section 51).

(6) In this section and in section (Power to regulate app stores: supplementary) references to children are to children in the United Kingdom.”

Member’s explanatory statement

This amendment provides that the Secretary of State may make regulations amending this Bill so as to bring app stores within its scope. The regulations may not be made until OFCOM have published their report about the use of app stores by children (see the new Clause proposed to be inserted after Clause 147 in my name).

My Lords, we have had some productive discussions on application stores, commonly known as “app stores”, and their role as a gateway for children accessing online services. I am grateful in particular to my noble friend Lady Harding of Winscombe for her detailed scrutiny of this area and the collaborative approach she has taken in relation to it and to her amendments, to which I will turn in a moment. These share the same goals as the amendments tabled in my name in seeking to add evidence-based duties on app stores to protect children.

The amendments in my name will do two things. First, they will establish an evidence base on the use of app stores by children and the role that app stores play in children encountering harmful content online. Secondly, following consideration of this evidence base, the amendments also confer a power on the Secretary of State to bring app stores into scope of the Bill should there be a material risk of significant harm to children on or through them.

On the evidence base, Amendment 272A places a duty on Ofcom to publish a report on the role of app stores in children accessing harmful content on the applications of regulated services. To help build a greater evidence base about the types of harm available on and through different kinds of app stores, the report will consider a broad range of these stores, which could include those available on various devices, such as smartphones, gaming devices and smart televisions. The report will also assess the use and effectiveness of age assurance on app stores and consider whether the greater use of age assurance or other measures could protect children further.

Publication of the report must be two to three years after the child safety duties come into force so as not to interfere with the Bill’s implementation timelines. This timing will also enable the report to take into account the impact of the regulatory framework that the Bill establishes.

Amendment 274A is a consequential amendment to include this report in the Bill’s broader confidentiality provisions, meaning that Ofcom will need to exclude confidential matters—for example, commercially sensitive information—from the report’s publication.

Government Amendments 236A, 236B and 237D provide the Secretary of State with a delegated power to bring app stores into the scope of regulation following consideration of Ofcom’s report. The power will allow the Secretary of State to make regulations putting duties on app stores to reduce the risks of harm presented to children from harmful content on or via app stores. The specific requirements in these regulations will be informed by the outcome of the Ofcom report I have mentioned.

As well as setting out the rules for app stores, the regulations may also make provisions regarding the duties and functions of Ofcom in regulating app stores. This may include information-gathering and enforcement powers, as well as any obligations to produce guidance or codes of practice for app store providers.

By making these amendments, our intention is to build a robust evidence base on the potential risks of app stores for children without affecting the Bill’s implementation more broadly. Should it be found that duties are required, the Secretary of State will have the ability to make robust and comprehensive duties, which will provide further layers of protection for children. I beg to move.

My Lords, before speaking to my Amendment 239A, I thank my noble friend the Minister, the Secretary of State and the teams in both the department and Ofcom for their collaborative approach in working to bring forward this group of amendments. I also thank my cosignatories. My noble friend Lady Stowell cannot be in her place tonight but she has been hugely helpful in guiding me through the procedure, as have been the noble Lords, Lord Stevenson, Lord Clement-Jones and Lord Knight, not to mention the noble Baroness, Lady Kidron. It has been a proper cross-House team effort. Even the noble Lord, Lord Allan, who started out quite sceptical, has been extremely helpful in shaping the discussion.

I also thank the NSPCC and Barnardo’s for their invaluable advice and support, as well as Snap and Match—two companies which have been willing to stick their heads above the parapet and challenge suppliers and providers on which they are completely dependent in the shape of the current app store owners, Apple and Google.

I reassure my noble friend the Minister—and everyone else—that I have no intention of dividing the House on my amendment, in case noble Lords were worried. I am simply seeking some reassurance on a number of points where my amendments differ from those tabled by the Government—but, first, I will highlight the similarities.

As my noble friend the Minister has referred to, I am delighted that we have two packages of amendments that in both cases recognise that this was a really significant gap in the Bill as drafted. Ignoring the elements of the ecosystem that sell access to regulated services, decide age guidelines and have the ability to do age assurance was a substantial gap in the framing of the Bill. But we have also recognised together that it is very important that this is an “and” not an “or”—it is not instead of regulating user-to-user services or search but in addition to. It is an additional layer that we can bring to protect children online, and it is very important that we recognise that—and both packages do.

Finally, considerable work needs to be done to do this properly—to properly research how we should regulate app stores and other app store-like things, and to do the full package, which I am pleased to say that both groups of amendments do. They instruct Ofcom to do the research but also give the Secretary of State the powers to enact any recommendations that come from that research.

However, there are four differences that I will briefly tease out. I live in hope, but I suspect that two we will continue to disagree on—but on two I hope my noble friend can give us some reassurance that we are in fact aligned. I shall take the two that I fear we will disagree on first. First, on timing, the Government’s amendments require Ofcom to conduct the work two to three years after Sections 11 and 25 come into force. I suspect that that means that we are talking about four to five years away, which is a very long time in the history of the digital world; whereas my amendments require 12 months after the first element of Sections 11 and 25 coming into being, so probably about two years. We are looking for an air gap between the implementation of user-to-user regulation, search regulation and app store regulation—but I would argue that the government amendment is too big an air gap. I ask my noble friend the Minister to consider whether it is possible to reduce the length of time to a digital speed rather than an analogue one.

On my second point, on which I am not so hopeful—but I am certain that we will come back to it again on Wednesday—the Government’s amendments require Ofcom to consider whether app stores cover harmful content. Once again, we have an amendment that focuses on content rather than functionality, systems and processes, and the non-content harms that a number of us are most worried about. It is a real shame that, in this new amendment, the Government have chosen to use the very language that is causing us so much concern in other parts of the Bill; whereas my amendments ask Ofcom to look at the objectives of Part 3 of the Bill, which I think is a much neater way. I genuinely believe that the Government want to capture the non-content harms, and I ask the Minister to consider whether it is possible to tidy up their amendment at Third Reading.

In two areas, I hope that the Minister can give me reassurance. First, on transparency, the government amendments are clear that Ofcom needs to publish the output of its research—its report to the Secretary of State—but they are not clear that the Secretary of State needs to publish if they choose not to implement Ofcom’s recommendations. Possibly I am just a novice in parliamentary procedure and they just would not be able to get away with that, and one of us will remember the point in time to ask the right question and it will come up in a ballot at the right time, but can my noble friend the Minister assure me that, in fact, the Secretary of State will publish, even if they choose not to implement any further regulation of app stores?

Finally, on scope, my amendments talk about app stores and “other access means”, to make sure that this is future-proofed. Today 99% of all user-to-user services are reached through the Apple App Store and Google Play. We all hope that that will change and that there will be competition in the stores that we use and the means and mechanisms that we use; hence the group of amendments that I have tabled refer to app stores and “other access means”.

The government amendments do not really define what an app store is and I notice that my noble friend the Minister did not either. Can he give us some assurance that he is confident that the wording in the government amendments is future-proof and not prone to the rebranding of app stores into something else and/or replatforming among these enormous tech companies so that we access them through some other form of technology, and that they will still be caught by the Ofcom review?

These are my four questions. Fundamentally, I am extremely grateful for the collaborative way in which the Government and all of us in this House have developed this. We have been able to move this forward constructively, and I am very pleased and grateful.

My Lords, I pay tribute to the noble Baroness, Lady Harding, for her role in bringing this issue forward. I too welcome the government amendments. It is important to underline that adding the potential role of app stores to the Bill is neither an opportunity for other companies to fail to comply and wait for the gatekeepers to do the job nor a one-stop shop in itself. It is worth reminding ourselves that digital journeys rarely start and finish in one place. In spite of the incredible war for our attention, in which products and services attempt to keep us rapt on a single platform, it is quite important for everyone in the ecosystem to play their part.

I have two minor points. First, I was not entirely sure why the government amendment requires the Secretary of State to consult as opposed to Ofcom. Can the Minister reassure me that, whoever undertakes the consultation, it will include children and children’s organisations as well as tech companies? Secondly, like the noble Baroness, Lady Harding, I was a little surprised that the amendment does not define an app store but uses the term “the ordinary meaning of”. That seems like it may have the possibility for change. If there is a good reason for that—I am sure there is—then it must be stated that app stores cannot suddenly rebrand to something else and that that gatekeeper function will be kept absolutely front and centre.

Notwithstanding those comments, and associating myself with the idea that nothing should wait until 2025-26, I am very grateful to the Government for bringing this forward.

My Lords, I will make a brief contribution because I was the misery guts when this was proposed first time round. I congratulate the noble Baroness, Lady Harding, not just on working with colleagues to come up with a really good solution but on seeking me out. If I heard someone be as miserable as I was, I might try to avoid them. She did not; she came and asked me, “Why are you miserable? What is the problem here?”, and took steps to address it. Through her work with the Government, their amendments address my main concerns.

My first concern, as we discussed in Committee, was that we would be asking large companies to regulate their competitors, because the app stores are run by large tech companies. She certainly understood that concern. The second was that I felt we had not necessarily yet clearly defined the problem. There are lots of problems. Before you can come up with a solution, you need a real consensus on what problem you are trying to address. The government amendment will very much help in saying, “Let’s get really crunchy about the actual problem that we need app stores to address”.

Finally, I am a glass-half-full kind of guy as well as a misery guts—there is a contradiction there—and so I genuinely think that these large tech businesses will start to change their behaviour and address some of the concerns, such as getting age ratings correct, just by virtue of our having this regulatory framework in place. Even if today the app stores are technically outside, the fact that the sector is inside and that this amendment tells them that they are on notice will, I think and hope, have a hugely positive effect and we will get the benefits much more quickly than the timescale envisaged in the Bill. That feels like a true backstop. I sincerely hope that the people in those companies, who I am sure will be glued to our debate, will be thinking that they need to get their act together much more quickly. It is better for them to do it themselves than wait for someone to do it to them.

My Lords, I add my congratulations to the noble Baroness, Lady Harding, on her tenacity, and to the Minister on his flexibility. I believe that where we have reached is pretty much the right balance. There are the questions that the noble Baroness, Lady Harding, and others have asked of the Minister, and I hope he will answer those, but this is a game-changer, quite frankly. Rightly, the noble Baroness has paid tribute to the companies which have put their head above the parapet. That was not that easy for them to do when you consider that those are the platforms they have to depend on for their services to reach the public.

Unlike the research report, they have reserved powers that the Secretary of State can use if the report is positive, which I hope it will be. I believe this could be a turning point. The digital markets and consumers Bill is coming down the track this autumn and that is going to give greater powers to make sure that the app stores can be tackled—after all, there are only two of them and they are an oligopoly. They are the essence of big tech, and they need to function in a much more competitive way.

The noble Baroness talked about timing, and it needs to be digital timing, not analogue. Four years does seem a heck of a long time. I hope the Minister will address that.

Then there is the really important aspect of harmful content. In the last group, the Minister reassured us about systems and processes and the illegality threshold. Throughout, he has tried to reassure us that this is all about systems and processes and not so much about content. However, every time we look, we see that content is there almost by default, unless the subject is raised. We do not yet have a Bill that is actually fit for purpose in that sense. I hope the Minister will use his summer break wisely and read through the Bill to make sure that it meets its purpose, and then come back at Third Reading with a whole bunch of amendments that add functionalities. How about that for a suggestion? It is said in the spirit of good will and summer friendship.

The noble Baroness raised a point about transparency when it comes to Ofcom publishing its review. I hope the Minister can give that assurance as well.

The noble Baroness, Lady Kidron, asked about the definition of app store. That is the gatekeeper function, and we need to be sure that that is what we are talking about.

I end by congratulating once again the noble Baroness and the Minister on where we have got to so far.

My Lords, I will start with the final point of the noble Lord, Lord Clement-Jones. I remind him that, beyond the world of the smartphone, there is a small company called Microsoft that also has a store for software—it is not just Google and Apple.

Principally, I say well done to the noble Baroness, Lady Harding, in deploying all of her “winsome” qualities to corral those of us who have been behind her on this and then persuade the Minister of the merits of her arguments. She also managed to persuade the noble Lord, Lord Allan of Misery Guts, that this was a good idea. The sequence of research, report, regulation and regulate is a good one, and as the noble Lord, Lord Clement-Jones, reminded us it is being deployed elsewhere in the Bill. I agree with the noble Baroness about the timing: I much prefer two years to four years. I hope that at least Ofcom would have the power to accelerate this if it wanted to do so.

I was reminded of the importance of this in an article I read in the Guardian last week, headed:

“More than 850 people referred to clinic for video game addicts”.

This was in reference to the NHS-funded clinic, the National Centre for Gaming Disorders. A third of gamers receiving treatment there were spending money on loot boxes in games such as “Fortnite”, “FIFA”, “Minecraft”, “Call of Duty” and “Roblox”—all games routinely accessed by children. Over a quarter of those being treated by the centre were children.

The article reported that Apple’s and Google’s app stores are

“increasingly offering games with gambling-style mechanics”— systems addictive by design rather than safe by design. Leon Xiao, a loot box expert and PhD fellow at the IT University of Copenhagen, reports that

“there were informal standards for these games—such as a requirement to publish information about the probability of winning on a slot machine spin—but even these were not being adhered to”.

He is quoted as saying:

“Apple says if you want to upload your game to the Apple Store, you need to make disclosures about the probability of randomised features”.

He continued:

“We checked in 2021 and a third of companies were not doing it. Existing regulation is not being enforced”.

I gather that the Minister’s department has a working group to examine loot boxes. An update on that now, or in writing if he would prefer, would be helpful. The main point of raising this is apparent: app stores are an important pinch point in the digital user journey. We need to ensure that Ofcom has a proper look at whether including them helps it deliver the aims of the Bill. We should include the powers for it to be able to do that, in addition to the other safeguards that we are putting in the Bill to protect children. We strongly support these amendments.

My Lords, I am very grateful for the strength of support and echo the tributes that have been paid to my noble friend Lady Harding—the winsome Baroness from Winscombe —for raising this issue and working with us so collaboratively on it. I am particularly glad that we were able to bring these amendments on Report; as she knows, it involved some speedy work by the Bill team and some speedy drafting by the Office of the Parliamentary Counsel, but I am glad that we were able to do it on Report, so that I can take it off my list of things to do over the summer, which was kindly written for me by the noble Lord, Lord Clement-Jones.

My noble friend’s amendments were laid before the Government’s, so she rightly asked a couple of questions on where they slightly differ. Her amendment seeks to ensure that other websites or online marketplaces that allow users to download apps are also caught by these duties. I reassure her that the Government’s amendments would capture these types of services. We have intentionally not provided detail about what constitutes an app store to ensure that the Bill remains future-proof. I will say a bit more about that in a moment. Regulations made by the Secretary of State under this power will be able to specify thresholds for which app stores are in scope, giving clarity to providers and users about the application of the duties.

On questions of definition, we are intentionally choosing not to define app stores in these amendments. The term is generally understood as meaning a service that makes applications available, which means that the Secretary of State will be able to impose duties on any such service. Any platform that enables apps to be downloaded can therefore be considered an app store for the purpose of this duty, regardless of whether or not it calls itself one. Regulations will clearly set out which providers are in scope of the duties. The ability to set threshold conditions will also ensure that any duties capture only those that pose the greatest risk of children accessing harmful content.

We touched on the long-running debate about content and functionality. We have made our position on that clear; it will be caught by references to content. I am conscious that we will return to this on Wednesday, when we will have a chance to debate it further.

On timing, as I said, I am glad that we were able to bring these amendments forward at this stage. The publication date for Ofcom’s report is to ensure that Ofcom can prioritise the implementation of the child safety duties and put in place the Bill’s vital protections for children before turning to its research on app stores.

That timing also allows the Secretary of State to base his or her decision on commencement on the effectiveness of the existing framework and to use the research of Ofcom’s report to set out a more granular approach to issues such as risk assessment and safety duties. It is necessary to await the findings of Ofcom’s report before those duties are commenced.

To the questions posed by the noble Baroness, Lady Kidron, and others about the consultation for that report by Ofcom, we expect Ofcom to consult widely and with all relevant parties when producing its report. We do not believe that there is a need for a specific list of consultees given Ofcom’s experience and expertise in this area as well as the great experience it will have through its existing enforcement and wider consultation requirements. In addition, the Secretary of State, before making regulations, will be required to consult a range of key parties, such as the Children’s Commissioner and the Information Commissioner, and those who represent the interests of children, as well as providers of app stores. That can include children themselves.

On the questions asked by the noble Lord, Lord Knight, on loot boxes, he is right that this piece of work is being led by my department. We want to see the games industry take the lead in strengthening protections for children and adults to mitigate the risk of harms. We are pursuing that through a DCMS-led technical working group, and we will publish an update on progress in the coming months. I again express my gratitude to my noble friend Lady Harding and other noble Lords who have expressed their support.

Amendment 236A agreed.