Amendment 1

Online Safety Bill - Third Reading – in the House of Lords at 3:39 pm on 6 September 2023.

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Lord Parkinson of Whitley Bay:

Moved by Lord Parkinson of Whitley Bay

1: Clause 44, page 45, line 30, leave out from “must” to end of line 31 and insert “, as soon as reasonably practicable, be published and laid before Parliament.”Member’s explanatory statementThis amendment provides that, in addition to publishing a direction under this Clause, the Secretary of State must also lay it before Parliament. Additionally the Secretary of State is required to do these things as soon as reasonably practicable. There is an exemption in certain circumstances (as to which see the next amendment to this Clause in my name).

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, His Majesty’s Government have listened carefully to the views expressed in Committee and on Report and have tabled amendments to the Bill to address concerns raised by noble Lords. Let me first again express my gratitude to my noble friend Lady Stowell of Beeston for her constructive engagement on the Secretary of State’s powers of direction. As I said during our previous debate on this topic, I am happy to support her Amendments139 and 140 from Report. The Government are therefore bringing forward two amendments to that effect today.

Noble Lords will recall that, whenever directing Ofcom about a code, the Secretary of State must publish that direction. Amendment 1 means that, alongside this, in most cases a direction will now need to be laid before Parliament. There may be some cases where it is appropriate for the Secretary of State to withhold information from a laid direction: for example, if she thinks that publishing it would be against the interests of national security. In these cases, Amendment 2 will instead require the Secretary of State to lay a statement before Parliament setting out that a direction has been given, the kind of code to which the direction relates and the reasons for not publishing it. Taken together, these amendments will ensure that your Lordships and Members of another place are always made aware as soon as a direction has been made and, wherever possible, understand the contents of that direction. I hope noble Lords will agree that, after the series of debates we have had, we have reached a sensible and proportionate position on these clauses and one which satisfies your Lordships’ House.

I am also grateful to the noble Baroness, Lady Kennedy of The Shaws, for her determined and collaborative work on the issue of threatening communications. Following the commitment I made to her on Report, I have tabled an amendment to make it explicit that the threatening communications offence captures threats where the recipient fears that someone other than the person sending the message will carry out the threat. I want to make it clear that the threatening communications offence, like other existing offences related to threats, already captures threats that could be carried out by third parties. This amendment does not change the scope of the offence, but the Government understand the desire of the noble Baroness and others to make this explicit in the Bill, and I am grateful to her for her collaboration.

Regarding Ofcom’s power of remote access, I am grateful to noble Lords, Lord Knight of Weymouth and Lord Allan of Hallam, my noble friend Lord Moylan and the noble Baroness, Lady Fox of Buckley, who unavoidably cannot be with us today, for raising their concerns about the perceived breadth of the power and the desire for further safeguards to ensure that it is used appropriately by the regulator.

I am also grateful to technology companies for the constructive engagement they have had with officials over the summer. As I set out on Report, the intention of our policy is to ensure clarity about Ofcom’s ability to observe empirical tests, which are a standard method for understanding algorithms and consequently for assessing companies’ compliance with the duties in the Bill. They involve taking a test data set, running it through an algorithmic system and observing the output.

Under the Clause 101 information-gathering power before it was amended, Ofcom would clearly have been able to require providers to carry out such tests and then submit the requested information to it. However, it was not explicit that Ofcom could observe tests itself, which in many cases would be significantly more efficient. I am pleased to announce that, to ensure that the drafting meets the Government’s policy intention, and in recognition of these concerns, the Government have tabled amendments to change Ofcom’s power of “remote access” to a power to “view information remotely”. This clarifies that Ofcom cannot use the power to require companies to give access to its systems, addressing concerns which noble Lords raised that the power was too broad and could be used in a way that might create security risks.

Furthermore, we have tabled amendments which would limit the scope of this power so that, rather than being able to use it to view remotely any information necessary to carry out its online safety functions, Ofcom may view remotely only specific types of information in relation to the operation of systems, processes or features, including algorithms, or to observe tests or demonstrations remotely. We have also listened to the calls for additional safeguards and have tabled amendments which would ensure that the power to view information remotely could be exercised only by persons authorised by Ofcom. Moreover, Ofcom will be required to issue a seven-day notice before exercising this power.

These further protections and limitations are in addition to the existing safeguards in the Bill, which include Ofcom’s legal duty to exercise this power in a way that is proportionate, ensuring that undue burdens are not placed on businesses. The proportionality safeguard would extend to issues of security and privacy, as well as the duration of any tests. In observing algorithmic assessments, Ofcom would generally expect to require a service to use a test data set. There may be circumstances where Ofcom asks a service to execute a test using data it holds—for example, in testing how content moderation systems respond to certain types of content on a service as part of an assessment of the systems and processes. In this scenario, Ofcom may need to use a provider’s own test data set containing content which has previously violated its own terms of service. However, Ofcom can process users’ personal data only in a way compatible with UK data protection law and must take into account a platform’s own obligations under relevant data protection legislation. I hope that these amendments address the concerns noble Lords raised during our previous debate, while ensuring that Ofcom has the information-gathering powers it needs to regulate effectively—in particular, to hold providers to account for their use of algorithms.

The Government have also tabled a number of minor and technical amendments to improve the drafting of the Bill. These include an amendment to Clause 52(3), which is about Ofcom’s duties to produce guidance. This amendment updates a cross-reference in this clause. We are also making technical amendments to include the relevant information powers and offences in Clause 121, which is about the admissibility of statements in criminal proceedings, and we are making an amendment to Clause 162 which defines age assurance as

“age verification or age estimation”.

I beg to move.

Photo of Lord Rooker Lord Rooker Labour 3:45, 6 September 2023

I am very surprised that the Minister’s speech did not accede to the recommendations from the Delegated Powers and Regulatory Reform Committee, published last week, in the report we made after we were forced to meet during the Recess because of the Government’s failure with this Bill. From his private office, we want answers to what is set out in paragraphs 6 and 7:

“We urge the Minister to take the opportunity during the remaining stages of the Bill”— which is today—

“to explain to the House”—

I will not read out the rest because it is quite clear. There are two issues—Henry VIII powers and skeleton legislation—and we require the Minister to accede to this report from a committee of the House.

I think that every member of the committee was present at the meeting on 29 August, the day after the bank holiday. We were forced to do that because the Government published amendments to Clauses 216 and 217 on 5 July, but they did not provide a delegated powers memorandum until 17 July, the date they were debated in this House. That prevented a committee of the House being able to report to the House on the issue of delegated powers. We are not interested in policy; all we are looking at is the delegated powers. We agreed that one of us would be here—as it is not a policy issue—to seek that the Minister responds to the recommendations of this committee of the House. I am very surprised that he has not done that.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Chair, Communications and Digital Committee, Chair, Communications and Digital Committee

My Lords, I am very concerned to hear the contribution from the noble Lord, Lord Rooker. I certainly look forward to hearing what the Minister says in reply. I confess that I was not aware of the Delegated Powers and Regulatory Powers Committee’s report to which he referred, and I wish to make myself familiar with it. I hope that he gets a suitable response from the Minister when he comes to wind up.

I am very grateful to the Minister for the amendments he tabled to Clause 44—Amendments 1 and 2. As he said, they ensure that there is transparency in the way that the Secretary of State exercises her power to issue a direction to Ofcom over its codes of practice. I remind the House—I will not detain your Lordships for very long—that the Communications and Digital Select Committee, which I have the privilege to chair, was concerned with the original Clause 39 for three main reasons: first, as it stood, the Bill handed the Secretary of State unprecedented powers to direct the regulator on pretty much anything; secondly, those directions could be made without Parliament knowing; and, thirdly, the process of direction could involve a form of ping-pong between government and regulator that could go on indefinitely.

However, over the course of the Bill’s passage, and as a result of our debates, I am pleased to say that, taken as a package, the various amendments tabled by the Government—not just today but at earlier stages, including on Report—mean that our concerns have been met. The areas where the Secretary of State can issue a direction now follow the precedent set by the Communications Act 2003, and the test for issuing them is much higher. As of today, via these amendments, the directions must be published and laid before Parliament. That is critical and is what we asked for on Report. Also, via these amendments, if the Secretary of State has good reason not to publish—namely, if it could present a risk to national security—she will still be required to inform Parliament that the direction has been made and of the reasons for not publishing. Once the code is finalised and laid before Parliament for approval, Ofcom must publish what has changed as a result of the directions. I would have liked to have seen a further amendment limiting the number of exchanges, so that there is no danger of infinite ping-pong between government and regulator, but I am satisfied that, taken together, these amendments make the likelihood of that much lower, and the transparency we have achieved means that Parliament can intervene.

Finally, at the moment, the platforms and social media companies have a huge amount of unaccountable power. As I have said many times, for me, the Bill is about ensuring greater accountability to the public, but that cannot be achieved by simply shifting power from the platforms to a regulator. Proper accountability to the public means ensuring a proper balance of power between the corporations, the regulator, government and Parliament. The changes we have made to the Bill ensure the balance is now much better between government and the regulator. Where I still think we have work to do is on parliamentary oversight of the regulator, in which so much power is being invested. Parliamentary oversight is not a matter for legislation, but it is something we will need to return to. In the meantime, I once again thank the Minister and his officials for their engagement and for the amendments that have been made.

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

My Lords, I, too, thank the Minister for his engagement and for the amendments he has tabled at various stages throughout the passage of the Bill.

Amendment 15 provides a definition:

““age assurance” means age verification or age estimation”.

When the Minister winds up, could he provide details of the framework or timetable for its implementation? While we all respect that implementation must be delivered quickly, age verification provisions will be worthless unless there is swift enforcement action against those who transgress the Bill’s provisions. Will the Minister comment on enforcement and an implementation framework with direct reference to Amendment 15?

Photo of Lord Allan of Hallam Lord Allan of Hallam Liberal Democrat Lords Spokesperson (Health)

My Lords, as this is a new stage of the Bill, I need to refer again to my entry in the register of interests. I have no current financial interest in any of the regulated companies for which I used to work, in one of which I held a senior role for a decade.

I welcome Amendment 7 and those following from it which change the remote access provision. The change from “remote access” to “view remotely” is quite significant. I appreciate the Minister’s willingness to consider it and particularly the Bill team’s creativity in coming up with this new phrasing. It is much simpler and clearer than the phrasing we had before. We all understand what “view remotely” means. “Access” could have been argued over endlessly. I congratulate the Minister and the team for simplifying the Bill. It again demonstrates the value of some of the scrutiny we carried out on Report.

It is certainly rational to enable some form of viewing in some circumstances, not least where the operations of the regulated entities are outside the United Kingdom and where Ofcom has a legitimate interest in observing tests that are being carried out. The remote access, or the remote viewing facility as it now is, will mean it can do this without necessarily sending teams overseas. This is more efficient, as the Minister said. As this entire regime is going to be paid for by the regulated entities, they have an interest in finding cheaper and more efficient methods of carrying out the supervision than teams going from London to potentially lots of overseas destinations. Agreement between the provider and Ofcom that this form of remote viewing is the most efficient will be welcomed by everybody. It is certainly better than the other option of taking data off-site. I am glad to see that, through the provisions we have in place, we will minimise the instances where Ofcom feels it needs data from providers to be taken off-site to some other facility, which is where a lot of the privacy risks come from.

Can the Minister give some additional assurances at some stage either in his closing remarks or through any follow-up correspondence? First, the notion of proportionality is implicit, but it would help for it to be made explicit. Whenever Ofcom is using the information notices, it should always use the least intrusive method. Yes, it may need to view some tests remotely, but only where the information could not have been provided in written form, for example, or sent as a document. We should not immediately escalate to remote viewing if we have not tried less intrusive methods. I hope that notion of proportionality and least intrusion is implicit within it.

Secondly, concerns remain around live user data. I heard the Minister say that the intention is to use test data sets. That needs to be really clear. It is natural for people to be concerned that their live user data might be exposed to anyone, be it a regulator or otherwise. Of course, we expect Ofcom staff to behave with propriety, but there have sadly been instances where individuals have taken data that they have observed, whether they were working for the police, the NHS or any other entity, and abused it. The safest safeguard is for there to be no access to live user data. I hope the Minister will go as far as he can in saying that that is not the intention.

Thirdly, Ofcom should carry out some kind of privacy impact assessment before requiring access. Again, that is standard practice in data protection terms and is a helpful discipline. If somebody at Ofcom is thinking, “Look, I’d really like to view one of these tests remotely”, there should be some kind of internal process where someone says, “I’m just going to look at the privacy impact of that and, if there are concerns, I’m going to work through them”. Doing this before the test is better than finding out after the test that there was an issue; I speak from experience, having worked at a company that did all sorts of things that turned out to be serious mistakes from a privacy point of view. I do not want Ofcom to fall into the same trap.

Fourthly, I would like reassurance that these things will be time-limited. Again, this is not explicit in the Bill, but I hope the Minister will be able to say that the intention is that, when Ofcom asks to view things remotely, those are not going to be open-ended asks but will be a case of saying, “I want to view X remotely for this period of time”—a week, a month, whatever is required—and that there will not be continual viewing, which is where it potentially becomes problematic.

Finally, I want to make a suggestion in this area: that the Government encourage Ofcom, which will be the independent regulator once we have finished with this Bill, to maintain a public register of all the information notices that it issues—without sensitive information, obviously. The fact that Ofcom has sought access to, requested information from and been viewing data at a particular platform is a matter of public interest. It would provide huge reassurance to people in the United Kingdom using these services if they knew that any information requests will be made public and that there will be no secrecy involved in the process. That is my final request, particularly around remote viewing requests. Otherwise, people will create conspiracy theories around what remote viewing entails; the best way to prevent this is simply to have a register saying, “Look, if Ofcom asked company X for this kind of remote viewing, that will never be secret. There will always be an easy way for a citizen to found out that that happened”.

Having said that, we certainly welcome these changes. They are an improvement as a result of our debate and scrutiny on Report.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour 4:00, 6 September 2023

My Lords, I, too, join noble Lords in thanking the Minister for the way in which he has addressed my concerns about aspects of the Bill and has wanted to enhance particularly the protection of women and girls from the kind of threats that they experience online. I really feel that the Minister has been exemplary in the way in which he has interacted with everyone in this House who has wanted to improve the Bill and has come to him with good will. He has listened and his team have been absolutely outstanding in the work that they have done. I express my gratitude to him.

Photo of Viscount Colville of Culross Viscount Colville of Culross Deputy Chairman of Committees

My Lords, I, too, thank the Minister for the great improvements that the Government have made to the Secretary of State’s powers in the Bill during its passage through this House. I rise to speak briefly today to praise the Government’s new Amendments 1 and 2 to Clause 44. As a journalist, I was worried by the lack of transparency around these powers in the clause; I am glad that the lessons of Section 94 of the Telecommunications Act 1984, which had to be rescinded, have been learned. In a world of conspiracy theories that can be damaging to public trust and governmental and regulatory process, it has never been more important that Parliament and the public are informed about the actions of government when giving directions to Ofcom about the draft codes of practice. So I am glad that these new amendments resolve those concerns.

Photo of Baroness Morgan of Cotes Baroness Morgan of Cotes Conservative

My Lords, I welcome Amendments 5 and 6, as well as the amendments that reflect the work done and comments made in earlier stages of this debate by the noble Baroness, Lady Kennedy. Of course, we are not quite there yet with this Bill, but we are well on the way as this is the Bill’s last formal stage in this Chamber before it goes back to the House of Commons.

Amendments 5 and 6 relate to the categorisation of platforms. I do not want to steal my noble friend’s thunder, but I echo the comments made about the engagement both from my noble friend the Minister and from the Secretary of State. I am delighted that the indications I have received are that they will accept the amendment to Schedule 11, which this House voted on just before the Recess; that is a significant and extremely welcome change.

When commentators outside talk about the work of a revising Chamber, I hope that this Bill will be used as a model for cross-party, non-partisan engagement in how we make a Bill as good as it possibly can be—particularly when it is as ground-breaking and novel as this one is. My noble friend the Minister said in a letter to all of us that this Bill had been strengthened in this Chamber, and I think that is absolutely right.

I also want to echo thanks to the Bill team, some of whom I was working with four years ago when we were talking about this Bill. They have stuck with the Bill through thick and thin. Also, I thank noble Lords across the House for their support for the amendments but also all of those outside this House who have committed such time, effort, support and expertise to making sure this Bill is as good as possible. I wish it well with its final stages. I think we all look forward to both Royal Assent and also the next big challenge, which is implementation.

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

My Lords, I thank the Minister for his introduction today and also for his letter which set out the reasons and the very welcome amendments that he has tabled today. First, I must congratulate the noble Baroness, Lady Stowell, for her persistence in pushing amendments of this kind to Clause 45, which will considerably increase the transparency of the Secretary of State’s directions if they are to take place. They are extremely welcome as amendments to Clause 45.

Of course, there is always a “but”—by the way, I am delighted that the Minister took the advice of the House and clearly spent his summer reading through the Bill in great deal, or we would not have seen these amendments, I am sure—but I am just sorry that he did not take the opportunity also to address Clause 176 in terms of the threshold for powers to direct Ofcom in special circumstances, and of course the rather burdensome powers in relation to the Secretary of State’s guidance on Ofcom’s exercise of its functions under the Bill as a whole. No doubt we will see how that works out in practice and whether they are going to be used on a frequent basis.

My noble friend Lord Allan—and I must congratulate both him and the noble Lord, Lord Knight, for their addressing this very important issue—has set out five assurances that he is seeking from the Minister. I very much hope that the Minister can give those today, if possible.

Congratulations are also due to the noble Baroness, Lady Kennedy, for finding a real loophole in the offence, which has now been amended. We are all delighted to see that the point has been well taken.

Finally, on the point raised by the noble Lord, Lord Rooker, clearly it is up to the Minister to respond to the points made by the committee. All of us would have preferred to see a comprehensive scheme in the primary legislation, but we are where we are. We wanted to see action on apps; they have some circumscribing within the terms of the Bill. The terms of the Bill—as we have discussed—particularly with the taking out of “legal but harmful”, do not give a huge amount of leeway, so this is not perhaps as skeleton a provision as one might otherwise have thought. Those are my reflections on what the committee has said.

Photo of Lord Knight of Weymouth Lord Knight of Weymouth Labour

My Lords, I do not know how everyone has spent their summer, but this feels a bit like we have been working on a mammoth jigsaw puzzle and we are now putting in the final pieces. At times, through the course of this Bill, it has felt like doing a puzzle in the metaverse, where we have been trying to control an unreliable avatar that is actually assembling the jigsaw—but that would be an unfair description of the Minister. He has done really well in reflecting on what we have said, influencing his ministerial colleagues in a masterclass of managing upwards, and coming up with reasonable resolutions to previously intractable issues.

We are trusting that some of the outcome of that work will be attended to in the Commons, as the noble Baroness, Lady Morgan, has said, particularly the issues that she raised on risk, that the noble Baroness, Lady Kidron, raised on children’s safety by design, and that my noble friend Lady Merron raised on animal cruelty. We are delighted at where we think these issues have got to.

For today, I am pleased that the concerns of the noble Baroness, Lady Stowell, on Secretary of State powers, which we supported, have been addressed. I also associate myself with her comments on parliamentary scrutiny of the work of the regulator. Equally, we are delighted that the Minister has answered the concerns of my noble friend Lady Kennedy and that he has secured the legislative consent orders which he informed us of at the outset today. We would be grateful if the Minister could write to us answering the points of my noble friend Lord Rooker, which were well made by him and by the Delegated Powers Committee.

I am especially pleased to see that the issues which we raised at Report on remote access have been addressed. I feel smug, as I had to press quite hard for the Minister to leave the door open to come back at this stage on this. I am delighted that he is now walking through the door. Like the noble Lord, Lord Allan, I have just a few things that I would like clarification on—the proportional use of the powers, Ofcom taking into account user privacy, especially regarding live user data, and that the duration of the powers be time- limited.

Finally, I thank parliamentarians on all sides for an exemplary team effort. With so much seemingly falling apart around us, it is encouraging that, when we have common purpose, we can achieve a lot, as we have with this Bill.

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, let me first address the points made by the noble Lord, Lord Rooker. I am afraid that, like my noble friend Lady Stowell of Beeston, I was not aware of the report of your Lordships’ committee. Unlike her, I should have been. I have checked with my private office and we have not received a letter from the committee, but I will ask them to contact the clerk to the committee immediately and will respond to this today. I am very sorry that this was not brought to my attention, particularly since the members of the committee met during the Recess to look at this issue. I have corresponded with my noble friend Lord McLoughlin, who chairs the committee, on each of its previous reports. Where we have disagreed, we have done so explicitly and set out our reasons. We have agreed with most of its previous recommendations. I am very sorry that I was not aware of this report and have not had the opportunity to provide answers for your Lordships’ House ahead of the debate.

Photo of Lord Rooker Lord Rooker Labour

The report was published on 31 August. It so happens that the committee has been forced to meet in an emergency session tomorrow morning because of government amendments that have been tabled to the levelling-up Bill, which will be debated next Wednesday, that require a report on the delegated powers, so we will have the opportunity to see what the Minister has said. I am very grateful for his approach.

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

The committee will have a reply from me before it meets tomorrow. Again, I apologise. It should not be up to the committee to let the Minister know; I ought to have known about it.

I am very grateful to noble Lords for their support of the amendments that we have tabled in this group, which reflect the collaborative nature of the work that we have done and the thought which has been put into this by my ministerial colleagues and me, and by the Bill team, over the summer. I will have a bit more to say on that when I move that the Bill do now pass in a moment, but I am very grateful to those noble Lords who have spoken at this stage for highlighting the model of collaborative working that the Bill has shown.

The noble Baroness, Lady Ritchie of Downpatrick, asked for an update on timetables. Some of the implementation timetables which Ofcom has assessed depend a little on issues which may still change when the Bill moves to another place. If she will permit it, once they have been resolved I will write with the latest assessments from Ofcom, and, if appropriate, from us, on the implementation timelines. They are being recalculated in the light of amendments that have been made to the Bill and which may yet further change. However, everybody shares the desire to implement the Bill as swiftly as possible, and I am grateful that your Lordships’ work has helped us do our scrutiny with that in mind.

The noble Lord, Lord Allan, asked some questions about the remote viewing power. On proportionality, Ofcom will have a legal duty to exercise its power to view information remotely in a way that is proportionate, ensuring, as I said, that undue burdens are not placed on businesses. In assessing proportionality in line with this requirement, Ofcom would need to consider the size and resource capacity of a service when choosing the most appropriate way of gathering information. To comply with this requirement, Ofcom would also need to consider whether there was a less onerous method of obtaining the necessary information.

On the points regarding that and intrusion, Ofcom expects to engage with providers as appropriate about how to obtain the information it needs to carry out its functions. Because of the requirement on Ofcom to exercise its information-gathering powers proportionately, it would need to consider less onerous methods. As I said, that might include an audit or a skilled persons report, but we anticipate that, for smaller services in particular, those options could be more burdensome than Ofcom remotely viewing information.

On live user data, Ofcom would generally expect to require a service to use a test dataset, as I said in opening this debate. Additionally, Ofcom can process users’ data only in a way that is compatible with UK data protection law, and the extent to which steps would require Ofcom to view personal data is also relevant to its proportionality assessment.

We agree with my noble friend Lady Stowell and the noble Lord, Lord Knight, that ongoing parliamentary scrutiny of the regime will be crucial in helping to reassure everybody that the Bill has done what we hope it will. The creation of the new Department for Science, Innovation and Technology means there is another departmental Select Committee in another place which will provide an enhanced opportunity for cross-party scrutiny of the new regime and digital regulation more broadly. Your Lordships’ Communications and Digital Committee will of course continue to play a vital role in the scrutiny in this House. As I set out at Report, to support this, the Government will ensure that the relevant committees in both Houses have every chance to play a part in government consultations by informing them when they are open. While we do not want the implementation process to be delayed, we will, where possible, share draft statutory instruments directly with the relevant committees before the formal laying process. That will be on a case-by-case basis, considering what is appropriate and reasonably practical. Of course, it will be up to the committees to decide how they wish to engage, but it will not create an additional approval process, to avoid delaying implementation.

A number of noble Lords mentioned press coverage about encryption, which I am aware of. Let me be clear: there is no intention by the Government to weaken the encryption technology used by platforms, and we have built strong safeguards into the Bill to ensure that users’ privacy is protected.

While the safety duties apply regardless of design, the Bill is clear that Ofcom cannot require companies to use proactive technology on private communications in order to comply with these duties. Ofcom can require the use of a technology by a private communication service only by issuing a notice to tackle child sexual exploitation and abuse content under Clause 122. A notice can be issued only where technically feasible and where technology has been accredited as meeting minimum standards of accuracy in detecting only child sexual abuse and exploitation content. Ofcom is also required to comply with existing data protection legislation when issuing a notice under Clause 122 and, as a public body, is bound by the Human Rights Act 1998 and the European Convention on Human Rights.

When deciding whether to issue a notice, Ofcom will work closely with the service to help identify reasonable, technically feasible solutions to address child sexual exploitation and abuse risk, including drawing on evidence from a skilled persons report. If appropriate technology which meets these requirements does not exist, Ofcom cannot require its use. That is why the powers include the ability for Ofcom to require companies to make best endeavours to develop or source a new solution. It is right that Ofcom should be able to require technology companies to use their considerable resources and expertise to develop the best possible protections for children in encrypted environments. That has been our long-standing policy position.

Our stance on tackling child sexual abuse online remains firm, and we have always been clear that the Bill takes a measured, evidence-based approach to do this. I hope that is useful clarification for those who still had questions on that point.

Photo of Lord Moylan Lord Moylan Chair, Built Environment Committee, Chair, Built Environment Committee 4:15, 6 September 2023

Will my noble friend draw attention to the part of Clause 122 that says that Ofcom cannot issue a requirement which is not technically feasible, as he has just said? That does not appear in the text of the clause, and it creates a potential conflict. Even if the requirement is not technically feasible—or, at least, if the platform claims that it is not—Ofcom’s power to require it is not mitigated by the clause. It still has the power, which it can exercise, and it can presumably take some form of enforcement action if it decides that the company is not being wholly open or honest. The technical feasibility is not built into the clause, but my noble friend has just added it, as with quite a lot of other stuff in the Bill.

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

It has to meet minimum standards of accuracy and must have privacy safeguards in place. The clause talks about those in a positive sense, which sets out the expectation. I am happy to make clear, as I have, what that means: if the appropriate technology does not exist that meets these requirements, then Ofcom will not be able to use Clause 122 to require its use. I hope that that satisfies my noble friend.

Amendment 1 agreed.