Online Safety Bill

Public Bill Committee, 21 June 2022.

(Morning).

Christina Rees (Labour/Co-operative, Neath)

We are now sitting in public and proceedings are being broadcast. Please switch electronic devices to silent. Tea and coffee are not allowed during the sitting. I understand the Government wish to move a motion to amend the programme order agreed by the Committee, so that the Committee’s session at 2pm on Thursday will not take place.

Steve Double (Conservative, St Austell and Newquay)

I beg to move,

That the Order of the Committee of 24 May 2022, as amended on 26 May 2022, be further amended, in paragraph (1)(h), by leaving out “and 2.00pm”.

In the light of the rail strike on Thursday, I am grateful to the Opposition Front Bench for agreeing to the suggestion that the Committee does not sit that afternoon.

Christina Rees (Labour/Co-operative, Neath)

Because this motion has not been agreed by the programming sub-committee, it may only be proceeded with if everyone is content. Does anyone object to the motion?

Clause 118 - Penalty for failure to comply with confirmation decision

Christina Rees (Labour/Co-operative, Neath)

We now come to amendment 135 to clause 118, with which it will be convenient to discuss amendments 136 to 138. All these amendments have been tabled by Carla Lockhart, who is not a member of the Committee. Would any Member like to move the amendment? I see no Member wishing to do that.

Christina Rees (Labour/Co-operative, Neath)

With this it will be convenient to discuss the following:

Clause 119 stand part.

Government amendments 154 to 157.

Clauses 120 and 121 stand part.

Alex Davies-Jones (Labour, Pontypridd)

Bore da, Ms Rees. It is, as ever, a pleasure to serve under your chairship. I rise to speak to clauses 118 to 121 and Government amendments 154 to 157.

As we all know, clause 118 is important and allows Ofcom to impose a financial penalty on a person who fails to complete steps that have been required by Ofcom in a confirmation decision. This is absolutely vital if we are to guarantee that regulated platforms take seriously their responsibilities in keeping us all safe online. We support the use of fines. They are key to overall behavioural change, particularly in the context of personal liability. We welcome clause 118, which outlines the steps Ofcom can take in what we hope will become a powerful deterrent.

Labour also welcomes clause 119. It is vital that Ofcom has these important powers to impose a financial penalty on a person who fails to comply with a notice that requires technology to be implemented to identify and deal with content relating to terrorism and child sexual exploitation and abuse on their service. These are priority harms and the more that can be done to protect us on these two points the better.

Government amendments 155 and 157 ensure that Ofcom has the power to impose a monetary penalty on a provider of a service who fails to pay a fee that it is required to pay under new schedule 2. We see these amendments as crucial in giving Ofcom the important powers it needs to be an effective regulator, which is something we all require. We have some specific observations around new schedule 2, but I will save those until we consider that schedule. For now, we support these amendments and I look forward to outlining our thoughts shortly.

We support clause 120, which allows Ofcom to give a penalty notice to a provider of a regulated service who does not pay the fee due to Ofcom in full. This a vital provision that also ensures that Ofcom’s process to impose a penalty can progress only when it has given due notice to the provider and once the provider has had fair opportunity to make fair representations to Ofcom. This is a fair approach and is central to the Bill, which is why we have not sought to amend.

Finally, we support clause 121, which ensures that Ofcom must state the reasons why it is imposing a penalty, the amount of the penalty and any aggravating or mitigating factors. Ofcom must also state when the penalty must be paid. It is imperative that when issuing a notice Ofcom is incentivised to publish information about the amount, aggravating or mitigating factors and when the penalty must be paid. We support this important clause and have not sought to amend.

Chris Philp (Conservative, Croydon South)

It is a pleasure to serve under your chairmanship once again, Ms Rees, and I congratulate Committee members on evading this morning’s strike action.

I am delighted that the shadow Minister supports the intent behind these clauses, and I will not speak at great length given the unanimity on this topic. As she said, clause 118 allows Ofcom to impose a financial penalty for failure to take specified steps by a deadline set by Ofcom. The maximum penalty that can be imposed is the greater of £18 million or 10% of qualifying worldwide revenue. In the case of large companies, it is likely to be a much larger amount than £18 million.

Clause 119 enables Ofcom to impose financial penalties if the recipient of a section 103 notice does not comply by the deadline. It is very important to ensure that section 103 has proper teeth. Government amendments 154 to 157 make changes that allow Ofcom to recover not only the cost of running the service once the Bill comes into force and into the future but also the preparatory cost of setting up for the Bill to come into force.

As previously discussed, £88 million of funding is being provided to Ofcom in this financial year and next. We believe that something like £20 million of costs that predate these financial years have been funded as well. That adds up to around £108 million. However, the amount that Ofcom recovers will be the actual cost incurred. The figure I provided is simply an indicative estimate. The actual figure would be based on the real costs, which Ofcom would be able to recoup under these measures. That means that the taxpayer—our constituents —will not bear any of the costs, including the set-up and preparatory cost. This is an equitable and fair change to the Bill.

Clause 120 sets out that some regulated providers will be required to pay a regulatory fee to Ofcom, as set out in clause 71. Clause 120 allows Ofcom to impose a financial penalty if a regulated provider does not pay its fee by the deadline it sets. Finally, clause 121 sets out the information that needs to be included in these penalty notices issued by Ofcom.

Kirsty Blackman (Scottish National Party, Aberdeen North)

I have questions about the management of the fees and the recovery of the preparatory cost. Does the Minister expect that the initial fees will be higher as a result of having to recoup the preparatory cost and will then reduce? How quickly will the preparatory cost be recovered? Will Ofcom recover it quickly or over a longer period of time?

Chris Philp (Conservative, Croydon South)

The Bill provides a power for Ofcom to recover those costs. It does not specify over what time period. I do not think they will be recouped over a period of years. Ofcom can simply recoup the costs in a single hit. I would imagine that Ofcom would seek to recover these costs pretty quickly after receiving these powers. The £108 million is an estimate. The actual figure may be different once the reconciliation and accounting is done. It sounds like a lot of money, but it is spread among a number of very large social media firms. It is not a large amount of money for them in the context of their income, so I would expect that recouping to be done on an expeditious basis—not spread over a number of years. That is my expectation.

Clause 120 - Non-payment of fee

Clause 122 - Amount of penalties etc

Christina Rees (Labour/Co-operative, Neath)

With this it will be convenient to discuss:

Government amendment 158.

That schedule 12 be the Twelfth schedule to the Bill.

Alex Davies-Jones (Labour, Pontypridd)

Labour supports clause 122 and schedule 12, which set out in detail the financial penalties that Ofcom may impose, including the maximum penalty that can be imposed. Labour has long supported financial penalties for those failing to comply with the duties in the Bill. We firmly believe that tough action is needed on online safety, but we feel the sanctions should go further and that there should be criminal liability for offences beyond just information-related failures. We welcome clause 122 and schedule 12. It is vital that Ofcom is also required to produce guidelines around how it will determine penalty amounts. Consistency across the board is vital, so we feel this is a positive step forward and have not sought to amend the clause.

Paragraph 8 of schedule 12 requires monetary penalties to be paid into the consolidated fund. There is no change to that requirement, but it now appears in new clause 43, together with the requirement to pay fees charged under new schedule 2 into the consolidated fund. We therefore support the amendments.

Chris Philp (Conservative, Croydon South)

I have nothing further to add on these amendments. The shadow Minister has covered them, so I will not detain the Committee further.

Schedule 12 - Penalties imposed by OFCOM under Chapter 6 of Part 7

Clause 123 - Service restriction orders

Alex Davies-Jones (Labour, Pontypridd)

I beg to move amendment 50, in clause 123, page 106, line 36, at end insert—

“(9A) OFCOM may apply to the court for service restriction orders against multiple regulated services with one application, through the use of a schedule of relevant services which includes all the information required by subsection (5).”

This amendment would give Ofcom the ability to take action against a schedule of non-compliant sites, while still preserving the right of those sites to oppose the application for, and/or appeal through the courts against any, orders to block access or support services.

Christina Rees (Labour/Co-operative, Neath)

With this it will be convenient to discuss amendment 51, in clause 125, page 110, line 20, at end insert—

“(7A) OFCOM may apply to the court for service restriction orders against multiple regulated services with one application, through the use of a schedule of relevant services which includes all the information required by subsection (6).”

This amendment would give Ofcom the ability to take action against a schedule of non-compliant sites, while still preserving the right of those sites to oppose the application for, and/or appeal through the courts against any, orders to block access or support services.

Alex Davies-Jones (Labour, Pontypridd)

With your permission, Ms Rees, I will speak to clause stand part and clauses 124 to 127 at the same time. Labour supports clause 123, which outlines the powers that Ofcom will have when applying to the court for business disruption measures. Business disruption measures are court orders that require third parties to withdraw services or block access to non-compliant regulated services. It is right that Ofcom has these tools at its disposal, particularly if it is going to be able to regulate effectively against the most serious instances of user harm. However, the Bill will be an ineffective regime if Ofcom is forced to apply for separate court orders when trying to protect people across the board from the same harms. We have already waited too long for change. Labour is committed to giving Ofcom the powers to take action, where necessary, as quickly as possible. That is why we have tabled amendments 50 and 51, which we feel will go some way in tackling these issues.

Amendment 50 would give Ofcom the ability to take action against a schedule of non-compliant sites, while still preserving the right of those sites to oppose the application for—and/or appeal through the courts against any—orders to block access or support services. The Bill currently requires Ofcom to seek a separate court order for each service against which it wishes to take enforcement action in the form of blocking access or services. That is the only effective mechanism for overseas websites. UK-based services will be subject to enforcement notices and financial penalties that can be enforced without having to go to court. That creates a disadvantage for UK sites, which can be more easily enforced against.

Given that there are 4 million to 5 million pornographic websites, for example, the requirement for separate court orders will prevent Ofcom from taking action at scale and creating a level playing field for all adult sites. Under the Bill, Ofcom must take action against each offending website or social media company individually. While we acknowledge that the Government have stated that enforcement action can be taken against multiple offending content providers, in our opinion that is not made clear in the Bill.

Moreover, we are concerned that some pornography websites would seek to avoid the Bill’s requirements by changing their domain name—domain hopping. That was threatened last year when Germany moved to issue a blocking order against major providers of internet pornography. That is why Ofcom must be granted clear enforcement powers to take swift action against multiple websites and content providers in one court action or order.

This group of amendments would also provide clarity and ease of enforcement for internet service providers, which will be expected to enforce court orders. Labour wants the Bill to be genuinely effective, and amendments 50 and 51 could ensure that Ofcom has the tools available to it to take action at pace. We urge the Minister to accept these small concessions, which could have a hugely positive impact.

Amendment 51 would give Ofcom the ability to take action against a schedule of non-compliant sites, while preserving the right of those sites to oppose an application for an order to block access or support services, or to appeal through the courts against any such order.

It will come as no surprise that Labour supports clause 124, which sets out the circumstances in which Ofcom may apply to the courts for an interim service restriction order. We particularly support the need for Ofcom to be able to take action when time is not on its side, or where, put plainly, the level of harm being caused means that it would be inappropriate to wait for a definite failure before taking action.

However, we hope that caution is exercised if Ofcom ever needs to consider such an interim order; we must, of course, get the balance right in our approach to internet regulation more widely. I would therefore be grateful if the Minister could outline his understanding of the specifics of when these orders may be applied. More broadly, Labour agrees that Ofcom should be given the power to act when time demands it, so we have not sought to amend clause 124 at this stage.

Labour also supports the need for Ofcom to have the power to apply to the courts for an access restriction order, as outlined in clause 125. It is vital that Ofcom is given the power to prevent, restrict or deter individuals in the UK from accessing a service from a non-compliant provider. We welcome the specific provisions on access via internet service providers and app stores. We all know from Frances Haugen’s testimony that harmful material can often be easily buried, so it is right and proper that those are considered as “access facilities” under the clause. Ultimately, we support the intentions of clause 125 and, again, have not sought to amend it at this stage.

We also support clause 126, which sets out the circumstances in which Ofcom may apply to the courts for an interim access restriction order. I will not repeat myself: for the reasons I have already outlined, it is key that Ofcom has sufficient powers to act, particularly on occasions when it is inappropriate to wait for a failure to be established.

We welcome clause 127, which clarifies how Ofcom’s enforcement powers can interact. We particularly welcome clarification that, where Ofcom exercises its power to apply to the courts for a business disruption order under clauses 123 to 126, it is not precluded from taking action under its other enforcement powers. As we have repeatedly reiterated, we welcome Ofcom’s having sufficient power to reasonably bring about positive change and increase safety measures online. That is why we have not sought to amend clause 127.

Kirsty Blackman (Scottish National Party, Aberdeen North)

Thank you for chairing this morning’s sitting, Ms Rees.

I agree with the hon. Member for Pontypridd that these clauses are necessary and important, but I also agree that the amendments are important. It seems like this is a kind of tidying-up exercise, to give Ofcom the ability to act in a way that will make its operation smoother. We all want this legislation to work. This is not an attempt to break this legislation—to be fair, none of our amendments have been—but an attempt to make things work better.

Amendments 50 and 51 are fairly similar to the one that the National Society for the Prevention of Cruelty to Children proposed to clause 103. They would ensure that Ofcom could take action against a group of sites, particularly if they were facing the same kind of issues, they had the same kind of functionality, or the same kind of concerns were being raised about them.

If the Minister does not intend to accept amendments 50 and 51, will he at least ensure that if Ofcom comes to the Secretary of State and says, “Look, we’re really struggling because we’ve got to do all of these applications individually,” there is some power or ability for the Secretary of State or Parliament to amend this legislation to ensure that Ofcom’s ability to act is not hampered? This is not about Ofcom bringing cases against people who should not have cases brought against them; it is just about making the paperwork easier for Ofcom. These clauses may not allow delegated powers, but will the Minister commit to considering the issue at a future stage? Obviously, the Bill will go to the other place afterwards. If the Minister were to consider including the provision at a future point, that would make the legislation better, and it would make it easier for Ofcom to operate. We do not want Ofcom to spend money and time unnecessarily; we want it to focus on making a big difference. If it is mired in unnecessary extra paperwork, its ability to do so will be hampered.

Christina Rees (Labour/Co-operative, Neath)

If no other Members wish to speak to amendments 50 and 51 and clauses 123 to 127, I will call the Minister to respond.

Chris Philp (Conservative, Croydon South)

Let me start with amendments 50 and 51, which were introduced by the shadow Minister and supported by the SNP spokesperson. The Government recognise the valid intent behind the amendments, namely to make sure that applications can be streamlined and done quickly, and that Ofcom can make bulk applications if large numbers of service providers violate the new duties to the extent that interim service restriction orders or access restriction orders become necessary.

We want a streamlined process, and we want Ofcom to deal efficiently with it, including, if necessary, by making bulk applications to the court. Thankfully, however, procedures under the existing civil procedure rules already allow so-called multi-party claims to be made. Those claims permit any number of claimants, any number of defendants or respondents and any number of claims to be covered in a single form. The overriding objective of the CPR is that cases are dealt with justly and proportionately. Under the existing civil procedure rules, Ofcom can already make bulk applications to deal with very large numbers of non-compliant websites and service providers in one go. We completely agree with the intent behind the amendments, but their content is already covered by the CPR.

It is worth saying that the business disruption measures—the access restriction orders and the service restriction orders—are intended to be a last resort. They effectively amount to unplugging the websites from the internet so that people in the United Kingdom cannot access them and so that supporting services, such as payment services, do not support them. The measures are quite drastic, although necessary and important, because we do not want companies and social media firms ignoring our legislation. It is important that we have strong measures, but they are last resorts. We would expect Ofcom to use them only when it has taken reasonable steps to enforce compliance using other means.

If a provider outside the UK ignores letters and fines, these measures are the only option available. As the shadow Minister, the hon. Member for Pontypridd, mentioned, some pornography providers probably have no intention of even attempting to comply with our regulations; they are probably not based in the UK, they are never going to pay the fine and they are probably incorporated in some obscure, offshore jurisdiction. Ofcom will need to use these powers in such circumstances, possibly on a bulk scale—I am interested in her comment that that is what the German authorities had to do—but the powers already exist in the CPR.

It is also worth saying that in its application to the courts, Ofcom must set out the information required in clauses 123(5) and 125(3), so evidence that backs up the claim can be submitted, but that does not stop Ofcom doing this on a bulk basis and hitting multiple different companies in one go. Because the matter is already covered in the CPR, I ask the shadow Minister to withdraw the amendment.

Alex Davies-Jones (Labour, Pontypridd)

I am interested to know whether the Minister has anything to add about the other clauses. I am happy to give way to him.

Chris Philp (Conservative, Croydon South)

I thank the shadow Minister for giving way. I do not have too much to say on the other clauses, because she has introduced them, but in my enthusiasm for explaining the civil procedure rules I neglected to respond to her question about the interim orders in clauses 124 and 126.

The hon. Lady asked what criteria have to be met for these interim orders to be made. The conditions for clause 124 are set out in subsections (3) and (4) of that clause, which states, first, that it has to be

“likely that the…service is failing to comply with an enforceable requirement”—

so it is likely that there has been a breach—and, secondly, that

“the level of risk of harm to individuals in the United Kingdom…and the nature and severity of that harm, are such that it would not be appropriate to wait to establish the failure before applying for the order.”

Similar language in clause 124(4) applies to breaches of section 103.

Essentially, if it is likely that there has been a breach, and if the resulting harm is urgent and severe—for example, if children are at risk—we would expect these interim orders to be used as emergency measures to prevent very severe harm. I hope that answers the shadow Minister’s question. She is very kind, as is the Chair, to allow such a long intervention.

Christina Rees (Labour/Co-operative, Neath)

In a Bill Committee, a Member can speak more than once. However, your intervention resolved the situation amicably, Minister.

Alex Davies-Jones (Labour, Pontypridd)

I welcome the Minister’s comments about clauses 124 and 126 in answer to my questions, and also his comments about amendments 50 and 51, clarifying the CPR. If the legislation is truly to have any impact, it must fundamentally give clarity to service users, providers and regulators. That is why we seek to remove any ambiguity and to put these important measures in the Bill, and it is why I will press amendment 50 to a Division.

Clause 125 - Access restriction orders

Clause 128 - Publication of details of enforcement action

Alex Davies-Jones (Labour, Pontypridd)

The Minister and his Back Benchers will, I am sure, be tired of our calls for more transparency, but I will be kind to him and confirm that Labour welcomes the provisions in clause 128.

We believe that it is vital that, once Ofcom has followed the process outlined in clause 110 when issuing a confirmation decision outlining its final decision, that is made public. We particularly welcome provisions to ensure that when a confirmation decision is issued, Ofcom will be obliged to publish the identity of the person to whom the decision was sent, details of the failure to which the decision relates, and details relating to Ofcom’s response.

Indeed, the transparency goes further, as Ofcom will be obliged to publish details of when a penalty notice has been issued in many more areas: when a person fails to comply with a confirmation decision; when a person fails to comply with a notice to deal with terrorism content or child sexual exploitation and abuse content, or both; and when there has been a failure to pay a fee in full. That is welcome indeed. Labour just wishes that the Minister had committed to the same level of transparency on the duties in the Bill to keep us safe in the first place. That said, transparency on enforcement is a positive step forward, so we have not sought to amend the clause at this stage.

Chris Philp (Conservative, Croydon South)

I am grateful for the shadow Minister’s support. I have nothing substantive to add, other than to point to the transparency reporting obligation in clause 64, which we have debated.

Clause 129 - OFCOM’s guidance about enforcement action

Chris Philp (Conservative, Croydon South)

I beg to move amendment 7, in clause 129, page 114, line 3, at end insert—

“(aa) the Information Commissioner, and”.

This amendment ensures that before Ofcom produce guidance about their exercise of their enforcement powers, they must consult the Information Commissioner.

If I may, in the interest of speed and convenience, I will speak to clause stand part as well.

The clause requires Ofcom to issue guidance setting out how it will use its enforcement powers in the round. That guidance will ensure that the enforcement process is transparent, it will cover the general principles and processes of the enforcement regime, and it is intended to help regulated providers and other stakeholders to understand how Ofcom will exercise its powers.

Government amendment 7 seeks to make it mandatory for Ofcom to consult the Information Commissioner’s Office before producing guidance on how Ofcom will exercise its enforcement powers in relation to the enforceable requirements in the Bill. That is important because the Information Commissioner’s Office has a significant interest in matters of data protection and privacy, and we want to make sure its opinion is properly taken into account before changes are made. We therefore think it is appropriate that the Information Commissioner’s Office is consulted in such circumstances.

Dan Carden (Labour, Liverpool, Walton)

Clause 129(4) states that the Secretary of State will be consulted in the process. What would be the Secretary of State’s powers in relation to that? Would she be able to overrule Ofcom in the writing of its guidance?

Chris Philp (Conservative, Croydon South)

The hon. Member asks for my assistance in interpreting legislative language. Generally speaking, “consult” means what it suggests. Ofcom will consult the Secretary of State, as it will consult the ICO, to ascertain the Secretary of State’s opinion, but Ofcom is not bound by that opinion. Unlike the power in a previous clause—I believe it was clause 40—where the Secretary of State could issue a direct instruction to Ofcom on certain matters, here we are talking simply about consulting. When the Secretary of State expresses an opinion in response to the consultation, it is just that—an opinion. I would not expect it to be binding on Ofcom, but I would expect Ofcom to pay proper attention to the views of important stakeholders, which in this case include both the Secretary of State and the ICO. I hope that gives the hon. Member the clarification he was seeking.

Alex Davies-Jones (Labour, Pontypridd)

As we know, clause 129 requires Ofcom to publish guidance about how it will use its enforcement powers. It is right that regulated providers and other stakeholders have a full understanding of how, and in what circumstances, Ofcom will have the legislative power to exercise this suite of enforcement powers. We also welcome Government amendment 7, which will ensure that the Information Commissioner—a key and, importantly, independent authority—is included in the consultation before guidance is produced.

As we have just heard, however, the clause sets out that Secretary of State must be consulted before Ofcom produces guidance, including revised or replacement guidance, about how it will use its enforcement powers. We feel that that involves the Secretary of State far too closely in the enforcement of the regime. The Government should be several steps away from being involved, and the clause seriously undermines Ofcom’s independence—the importance of which we have been keen to stress as the Bill progresses, and on which Conservative Back Benchers have shared our view—so we cannot support the clause.

Chris Philp (Conservative, Croydon South)

I repeat the point I made to the hon. Member for Liverpool, Walton a moment ago. This is simply an obligation to consult. The clause gives the Secretary of State an opportunity to offer an opinion, but it is just that—an opinion. It is not binding on Ofcom, which may take that opinion into account or not at its discretion. This provision sits alongside the requirement to consult the Information Commissioner’s Office. I respectfully disagree with the suggestion that it represents unwarranted and inappropriate interference in the operation of a regulator. Consultation between organs of state is appropriate and sensible, but in this case it does not fetter Ofcom’s ability to act at its own discretion. I respectfully do not agree with the shadow Minister’s analysis.

Kirsty Blackman (Scottish National Party, Aberdeen North)

Apologies, Ms Rees, for coming in a bit late on this, but I was not aware of the intention to vote against the clause. I want to make clear what the Scottish National party intends to do, and the logic behind it. The inclusion of Government amendment 7 is sensible, and I am glad that the Minister has tabled it. Clause 129 is incredibly important, and the requirement to publish guidance will ensure that there is a level of transparency, which we and the Labour Front Benchers have been asking for.

The Minister has been clear about the requirement for Ofcom to consult the Secretary of State, rather than to be directed by them. As a whole, this Bill gives the Secretary of State far too much power, and far too much ability to intervene in the workings of Ofcom. In this case, however, I do not have an issue with the Secretary of State being consulted, so I intend to support the inclusion of this clause, as amended by Government amendment 7.

Clause 130 - Advisory committee on disinformation and misinformationClause 130

Alex Davies-Jones (Labour, Pontypridd)

I beg to move amendment 57, in clause 130, page 115, line 4, leave out “18” and insert “6”

This amendment changes the period by which the advisory committee must report from 18 months to 6.

Christina Rees (Labour/Co-operative, Neath)

With this, it will be convenient to discuss the following: amendment 58, in clause 130, page 115, line 5, at end insert—

‘(6) Following the publication of the report, OFCOM must produce a code of practice setting out the steps services should take to reduce disinformation across their systems.”

This amendment requires Ofcom to produce a code of practice on system-level disinformation.

Clause stand part.

Alex Davies-Jones (Labour, Pontypridd)

Clause 130 sets up a committee to advise Ofcom on misinformation and disinformation, which is the only direct reference to misinformation and disinformation in the entire Online Safety Bill. However, the Bill gives the committee no identifiable powers or active role in tackling harmful misinformation and disinformation, meaning that it has limited practical purpose. It is also unclear how the advisory committee will fit with Ofcom’s wider regulatory functions.

The remaining provisions in the Bill are limited and do not properly address harmful misinformation and disinformation. If tackling harmful misinformation and disinformation is left to this clause, the Bill will fail both to tackle harm properly, and to keep children and adults safe.

The clause risks giving a misleading impression that action is being taken. If the Government and Ofcom proceed with creating the committee, we need to see that its remit is strengthened and clarified, so that it more effectively tackles harmful disinformation and misinformation. That should include advising on Ofcom’s research, reporting on drivers of harmful misinformation and disinformation, and proportionate responses to them. There should also be a duty on Ofcom to consult the committee when drafting relevant codes of practice.

That is why we have tabled amendment 57. It would change the period by which the advisory committee must report from 18 months to six. This is a simple amendment that encourages scrutiny. Once again, the Minister surely has little reason not to accept it, especially as we have discussed at length the importance of the advisory committee having the tools that it needs to succeed.

Increasing the regularity of these reports from the advisory committee is vital, particularly given the ever-changing nature of the internet. Labour has already raised concerns about the lack of futureproofing in the Bill more widely, and we feel that the advisory committee has an important role and function to play in areas where the Bill itself is lacking. We are not alone in this view; the Minister has heard from his Back Benchers about just how important this committee is.

Amendment 58 would require Ofcom to produce a code of practice on system-level disinformation. Again, this amendment will come as no surprise to the Minister, given the concerns that Labour has repeatedly raised about the lack of provisions relating to disinformation in the Bill. It seems like an obvious omission that the Bill has failed to consider a specific code of practice around reducing disinformation, and the amendment would be a simple way to ensure that Ofcom actively encourages services to reduce disinformation across their platforms. The Minister knows that this would be a welcome step, and I urge him to consider supporting the amendment.

Kirsty Blackman (Scottish National Party, Aberdeen North)

I want to briefly agree with the sentiments of the Opposition Front Bench, especially about the strength of the committee and the lack of teeth that it currently has. Given that the Government have been clear that they are very concerned about misinformation and disinformation, it seems odd that they are covered in the Bill in such a wishy-washy way.

The reduction of the time from 18 months to six months would also make sense. We would expect the initial report the committee publish in six months to not be as full as the ones it would publish after that. I do not see any issue with it being required to produce a report as soon as possible to assess how the Act is bedding in and beginning to work, rather than having to wait to assess—potentially once the Act is properly working. We want to be able to pick up any teething problems that the Act might have.

We want the committee to be able to say, “Actually, this is not working quite as we expected. We suggest that Ofcom operates in a slightly different way or that the interaction with providers happens in a slightly different way.” I would rather that problems with the Act were tackled as early as possible. We will not know about problems with the Act, because there is no proper review mechanism. There is no agreement on the committee, for example, to look at how the Act is operating. This is one of the few parts of the Bill where we have got an agreement to a review, and it would make sense that it happen as early as possible.

We agree that misinformation and disinformation are very important matters that really need to be tackled, but there is just not enough clout in the Bill to allow Ofcom to properly tackle these issues that are causing untold harm.

Dan Carden (Labour, Liverpool, Walton)

When I spoke at the very beginning of the Committee’s proceedings, I said that the legislation was necessary, that it was a starting point and that it would no doubt change and develop over time. However, I have been surprised at how little, considering all of the rhetoric we have heard from the Secretary of State and other Ministers, the Bill actually deals with the general societal harm that comes from the internet. This is perhaps the only place in the Bill where it is covered.

I am thinking of the echo chambers that are created around disinformation and the algorithms that companies use. I really want to hear from the Minister where he sees this developing and why it is so weak and wishy-washy. While I welcome that much of the Bill seeks to deal with the criminality of individuals and the harm and abuse that can be carried out over the internet, overall it misses a great opportunity to deal with the harmful impact the internet can have on society.

Chris Philp (Conservative, Croydon South)

Let me start by speaking on the issue of disinformation more widely, which clearly is the target of the two amendments and the topic of clause 130. First, it is worth reminding the Committee that non-legislatively—operationally—the Government are taking action on the disinformation problem via the counter-disinformation unit of the Department for Digital, Culture, Media and Sport, which we have discussed previously.

The unit has been established to monitor social media firms and sites for disinformation and then to take action and work with social media firms to take it down. For the first couple of years of its operation, it understandably focused on disinformation connected to covid. In the last two or three months, it has focused on disinformation relating to the Russia-Ukraine conflict —in particular propaganda being spread by the Russian Government, which, disgracefully, has included denying responsibility for various atrocities, including those committed at Bucha. In fact, in cases in which the counter-disinformation unit has not got an appropriate response from social media firms, those issues have been escalated to me, and I have raised them directly with those firms, including Twitter, which has tolerated all kinds of disinformation from overt Russian state outlets and channels, including from Russian embassy Twitter accounts, which are of particular concern to me. Non-legislative action is being taken via the CDU.

I would also point to the legislative action that is currently in train. The Committee will be aware that the National Security Bill had its Second Reading a week or two ago. Colleagues who have studied that Bill—as I am sure they have—will have noticed that clause 13 creates a new foreign interference offence, and that cross-refers to clause 24 in that Bill. I may be over-reaching by trying to memorise two Bills rather than one, but I think those references are right.

That new foreign interference offence, which is being criminalised separately from this Bill, makes it a criminal offence for a foreign state-backed organisation to propagate disinformation, and it specifies the circumstances or conditions that have to be met. I observe in passing that once the National Security Bill has received Royal Assent, it will be possible to add that offence to the Online Safety Bill as a priority offence under schedule 7, so levers will be available.

In addition, for certain kinds of disinformation and misinformation that cause adults harm, it will be possible for that harm to be designated in secondary legislation as a priority category of harm. We may discuss that further in due course.

Kim Leadbeater (Labour, Batley and Spen)

It is fantastic to hear that those other things are happening—that is all well and good—but surely we should explicitly call out disinformation and misinformation in the Online Safety Bill. The package of other measures that the Minister mentions is fantastic, but I think they have to be in the Bill.

Chris Philp (Conservative, Croydon South)

The hon. Lady says that those measures should be in the Bill—more than they already are—but as I have pointed out, the way in which the legal architecture of the Bill works means that the mechanisms to do that would be adding a criminal offence to schedule 7 as a priority offence, for example, or using a statutory instrument to designate the relevant kind of harm as a priority harm, which we plan to do in due course for a number of harms. The Bill can cover disinformation with the use of those mechanisms.

We have not put the harmful to adults content in the Bill; it will be set out in statutory instruments. The National Security Bill is still progressing through Parliament, and we cannot have in schedule 7 of this Bill an offence that has not yet been passed by Parliament. I hope that that explains the legal architecture and mechanisms that could be used under the Bill to give force to those matters.

On amendment 57, the Government feel that six months is a very short time within which to reach clear conclusions, and that 18 months is a more appropriate timeframe in which to understand how the Bill is bedding in and operating. Amendment 58 would require Ofcom to produce a code of practice on system-level disinformation. To be clear, the Bill already requires Ofcom to produce codes of practice that set out the steps that providers will take to tackle illegal content— I mentioned the new National Security Bill, which is going through Parliament—and harmful content, which may, in some circumstances, include disinformation.

Disinformation that is illegal or harmful to individuals is in scope of the duties set out in the Bill. Ofcom’s codes of practice will, as part of those duties, have to set out the steps that providers should take to reduce harm to users that arises from such disinformation. Those steps could include content-neutral design choices or interventions of other kinds. We would like Ofcom to have a certain amount of flexibility in how it develops those codes of practice, including by being able to combine or disaggregate those codes in ways that are most helpful to the general public and the services that have to pay regard to them. That is why we have constructed them in the way we have. I hope that provides clarity about the way that disinformation can be brought into the scope of the Bill and how that measure then flows through to the codes of practice. I gently resist amendments 57 and 58 while supporting the clause standing part of the Bill.

Clause 131 - Functions of the Content Board

Chris Philp (Conservative, Croydon South)

The clause allows Ofcom to confer functions on the content board in relation to content-related functions under the Bill, but does not require it to do so. We take the view that how Ofcom manages its responsibilities internally is a matter for Ofcom. That may change over time. The clause simply provides that Ofcom may, if Ofcom wishes, ask its content board to consider online safety matters alongside its existing responsibilities. I trust that the Committee considers that a reasonable measure.

Alex Davies-Jones (Labour, Pontypridd)

Labour welcomes the clause, which, as the Minister has said, sets out some important clarifications with respect to the Communications Act 2003. We welcome the clarification that the content board will have delegated and advisory responsibilities, and look forward to the Minister’s confirmation of exactly what those are and how this will work in practice. It is important that the content board and the advisory committee on disinformation and misinformation are compelled to communicate, too, so we look forward to an update from the Minister on what provisions in the Bill will ensure that that happens.

Chris Philp (Conservative, Croydon South)

The shadow Minister has asked how this will work in practice, but as I said, the internal operation of Ofcom obviously is a matter for Ofcom. As Members have said in the recent past—indeed, in the last hour—they do not welcome undue Government interference in the operation of Ofcom, so it is right that we leave this as a matter for Ofcom. We are providing Ofcom with the power, but we are not compelling it to use that power. We are respecting Ofcom’s operational independence—a point that shadow Ministers and Opposition Members have made very recently.

Clause 132 - Research about users’ experiences of regulated services

Christina Rees (Labour/Co-operative, Neath)

With this it will be convenient to discuss clause 133 stand part.

Alex Davies-Jones (Labour, Pontypridd)

We support clause 132, which ensures that Ofcom is required to understand and measure public opinion concerning providers of regulated services, as well as the experiences and interests of those using the regulated services in question. The Bill in its entirety is very much a learning curve for us all, and I am sure we all agree that, as previously maintained, the world really is watching as we seek to develop and implement the legislation. That is why it is vital that Ofcom is compelled to conduct and arrange its own research to ensure that we are getting an accurate picture of how our regulatory framework is affecting people. I stress to the Minister that it is imperative that Ofcom consults all service providers—big and small—which the CBI stressed to me in recent meetings.

We also welcome the provisions outlined in subsection (2) that confirm that Ofcom must include a statement of its research in its annual report to the Secretary of State and the devolved Administrations. It is important that Ofcom, as a regulator, takes a research-led approach, and Labour is pleased to see these provisions included in the Bill.

We welcome the inclusion of clause 133, which extends the communication panel’s remit to include online safety. This will mean that the panel is able to give advice on matters relating to different types of online content under the Bill, and on the impacts of online content on UK users of regulated services. It is a welcome step forward, so we have not sought to amend the clause.

Maria Miller (Conservative, Basingstoke)

I want to make one short comment about clauses 132 and 133, which are really important. There is no intention to interfere with or fetter the way that Ofcom operates, but there is an obligation on this Committee, and on Parliament, to indicate what we would expect to see from Ofcom by way of the clauses, because they are an essential part of the transparency that we are trying to inject into the sector.

Research about users’ experiences is hugely important, and such reports contain important insights into how platforms are used, and the levels of misinformation and disinformation that people are exposed to. Ofcom already produces highly authoritative reports on various aspects of the online world, including the fact that three in four adults do not think about whether the online information that they see is truthful. Indeed, one in three adults believes that all or most information that they find online is truthful. We know that there is a significant gap between consumers perception and reality, so it is important to ensure that research has good exposure among those using the internet.

We do not often hear about the problems of how the online world works, and the level of disinformation and inaccuracy is not well known, so will the Minister elaborate on how he expects Ofcom to ensure that people are aware of the reality of the online world? Platforms will presumably be required to have regard to the content of Ofcom reports, but will Ofcom be required to publicise its reports? It is not clear that such a duty is in the Bill at the moment, so does the Minister expect Ofcom to have a role in educating people, especially children, about the problem of inaccurate data or other aspects of the online world?

We know that a number of platforms spend a great deal of money on going into schools and talking about their products, which may or may not entail accurate information. Does Ofcom not have an important role to play in this area? Educating users about the changes in the Bill would be another potential role for Ofcom in order to recalibrate users’ expectations as to what they might reasonably expect platforms to offer as a result of the legislation. It is important that we have robust regulatory frameworks in place, and this Bill clearly does that. However, it also requires users to be aware of the changes that have been made so that they can report the problems they experience in a timely manner.

Dan Carden (Labour, Liverpool, Walton)

I agree with the right hon. Member for Basingstoke that these are important clauses. I want to put them into the context of what we heard from Frances Haugen, who, when she spoke to Congress, said that Facebook consistently chose to maximise its growth rather than implement safeguards on its platforms. She said:

“During my time at Facebook, I came to realise a devastating truth: Almost no one outside of Facebook knows what happens inside Facebook. “The company intentionally hides vital information from the public, from the U.S. government, and from governments around the world.”

When we consider users’ experiences, I do not think it is good enough just to look at how the user engages with information. We need far more transparency about how the companies themselves are run. I would like to hear the Minister’s views on how this clause, which looks at users’ experiences, can go further in dealing with the harms at source, with the companies, and making sure a light is shone on their practices.

Chris Philp (Conservative, Croydon South)

I welcome the support of the hon. Member for Pontypridd for these clauses. I will turn to the questions raised by my right hon. Friend the Member for Basingstoke. First, she asked whether Ofcom has to publish these reports so that the public, media and Parliament can see what they say. I am pleased to confirm that Ofcom does have to publish the reports; section 15 of the Communications Act 2003 imposes a duty on Ofcom to publish reports of this kind.

Secondly, my right hon. Friend asked about educating the public on issues pertinent to these reports, which is what we would call a media literacy duty. Again, I confirm that, under the Communications Act, Ofcom has a statutory duty to promote media literacy, which would include matters that flow from these reports. In fact, Ofcom published an expanded and updated set of policies in that area at the end of last year, which is why the old clause 103 in the original version of this Bill was removed—Ofcom had already gone further than that clause required.

Thirdly, my right hon. Friend asked about the changes that might happen in response to the findings of these reports. Of course, it is open to Ofcom—indeed, I think this Committee would expect it—to update its codes of practice, which it can do from time to time, in response to the findings of these reports. That is a good example of why it is important for those codes of practice to be written by Ofcom, rather than being set out in primary legislation. It means that when some new fact or circumstance arises or some new bit of research, such as the information required in this clause, comes out, those codes of practice can be changed. I hope that addresses the questions my right hon. Friend asked.

Clause 134 - OFCOM’s statement about freedom of expression and privacy

Alex Davies-Jones (Labour, Pontypridd)

As we all know, the clause requires Ofcom to publish annual reports on the steps it has taken, when carrying out online safety functions, to uphold users’ rights under articles 8 and 10 of the convention, as required by section 6 of the Human Rights Act 1998. It will come as no surprise to the Minister that Labour entirely supports this clause.

Upholding users’ rights is a central part of this Bill, and it is a topic we have debated repeatedly in our proceedings. I know that the Minister faces challenges of his own, as the Opposition do, regarding the complicated balance between freedom of speech and safety online. It is only right and proper, therefore, for Ofcom to have a specific duty to publish reports about what steps it is taking to ensure that the online space is fair and equal for all.

That being said, we know that we can and should go further. My hon. Friend the Member for Batley and Spen will shortly address an important new clause tabled in her name—I believe it is new clause 25—so I will do my best not to repeat her comments, but it is important to say that Ofcom must be compelled to publish reports on how its overall regulatory operating function is working. Although Labour welcomes clause 134 and especially its commitment to upholding users’ rights, we believe that when many feel excluded in the existing online space, Ofcom can do more in its annual reporting. For now, however, we support clause 134.

Chris Philp (Conservative, Croydon South)

I welcome the shadow Minister’s continuing support for these clauses. Clause 134 sets out the requirement on Ofcom to publish reports setting out how it has complied with articles 8 and 10 of the European convention on human rights.

I will pause for a second, because my hon. Friend the Member for Don Valley and others have raised concerns about the implications of the Bill for freedom of speech. In response to a question he asked last week, I set out in some detail the reasons why I think the Bill improves the position for free speech online compared with the very unsatisfactory status quo. This clause further strengthens that case, because it requires this report and reminds us that Ofcom must discharge its duties in a manner compatible with articles 8 and 10 of the ECHR.

From memory, article 8 enshrines the right to a family life, and article 10 enshrines the right to free speech, backed up by quite an extensive body of case law. The clause reminds us that the powers that the Bill confers on Ofcom must be exercised—indeed, can only be exercised—in conformity with the article 10 duties on free speech. I hope that that gives my hon. Friend additional assurance about the strength of free speech protection inherent in the Bill. I apologise for speaking at a little length on a short clause, but I think that was an important point to make.

Clause 135 - OFCOM’s transparency reports

Alex Davies-Jones (Labour, Pontypridd)

Again, Labour welcomes clause 135, which places a duty on Ofcom to produce its own reports based on information from the transparency reports that providers are required to publish. However, the Minister will know that Labour feels the Bill has much more work to do on transparency more widely, as we have repeatedly outlined through our debates. The Minister rejected our calls for increased transparency when we were addressing, I believe, clause 61. We are not alone in feeling that transparency reports should go further. The sector and his own Back Benchers are calling for it, yet so far his Department has failed to act.

It is a welcome step that Ofcom must produce its own reports based on information from the provider’s transparency reports, but the ultimate motivation for the reports to provide a truly accurate depiction of the situation online is for them to be made public. I know the Minister has concerns around security, but of course no one wants to see users put at harm unnecessarily. That is not what we are asking for here. I will refrain from repeating debates we have already had at length, but I wish to again put on the record our concerns around the transparency reporting process as it stands.

That being said, we support clause 135. It is right that Ofcom is compelled to produce its own reports; we just wish they were made public. With the transparency reports coming from the providers, we only wish they would go further.

Chris Philp (Conservative, Croydon South)

I have spoken to these points previously, so I do not want to tax the Committee’s patience by repeating what I have said.

Clause 136 - OFCOM’s report about researchers’ access to information

Alex Davies-Jones (Labour, Pontypridd)

Again, Labour welcomes clause 136, which is a positive step towards a transparent approach to online safety, given that it requires Ofcom to publish a report about the access that independent researchers have, or could have, to matters relating to the online safety of regulated services. As my hon. Friend the Member for Worsley and Eccles South rightly outlined in an earlier sitting, Labour strongly believes that the transparency measures in the Bill do not go far enough.

Independent researchers already play a vital role in regulating online safety. Indeed, there are far too many to list, but many have supported me, and I am sure the Minister, in our research on the Bill. That is why we have tabled a number of amendments on this point, as we sincerely feel there is more work to be done. I know the Minister says he understands and is taking on board our comments, but thus far we have seen little movement on transparency.

Chris Philp (Conservative, Croydon South)

In this clause we are specifically talking about access to information for researchers. Obviously, the transparency matters were covered in clauses 64 and 135. There is consensus across both parties that access to information for bona fide academic researchers is important. The clause lays out a path to take us in the direction of providing that access by requiring Ofcom to produce a report. We debated the matter earlier. The hon. Member for Worsley and Eccles South—I hope I got the pronunciation right this time—

Barbara Keeley (Labour, Worsley and Eccles South)

You did.

Chris Philp (Conservative, Croydon South)

The hon. Lady made some points about the matter in an earlier sitting, as the shadow Minister just said. It is an area we are giving some careful thought to, because it is important that it is properly academically researched. Although Ofcom is being well resourced, as we have discussed, with lots of money and the ability to levy fees, we understand that it does not have a monopoly on wisdom—as good a regulator as it is. It may well be that a number of academics could add a great deal to the debate by looking at some of the material held inside social media firms. The Government recognise the importance of the matter, and some thought is being given to these questions, but at least we can agree that clause 136 as drafted sets out a path that leads us in this important direction.

Clause 137 - OFCOM’s reports

Alex Davies-Jones (Labour, Pontypridd)

Briefly, before I hand over to my hon. Friend the Member for Worsley and Eccles South, I should say that Labour welcomes clause 137, which gives Ofcom a discretionary power to publish reports about certain online safety measures and matters. Clearly, it is important to give Ofcom the power to redact or exclude confidential matters where needs be, and I hope that there will be a certain level of common sense and public awareness, should information of this nature be excluded. As I have previously mentioned—I sound a bit like a broken record—Labour echoes the calls for more transparency, which my hon. Friend the Member for Batley and Spen will come on to in her new clause. However, broadly, we support this important clause.

I would like to press the Minister briefly on how exactly the exclusion of material from Ofcom reports will work in practice. Can he outline any specific contexts or examples, beyond commercial sensitivity and perhaps matters of national security, where he can envision this power being used?

Chris Philp (Conservative, Croydon South)

I welcome the shadow Minister’s support for the clause, once again. The clause provides Ofcom with the power to publish relevant reports about online safety matters to keep users, the public and Parliament well informed. Again, clearly, it is up to Ofcom to decide how it publishes those reports; we will not compel it.

On the question about confidential material that might be withheld, the relevant language in clause 137 looks, to me, to precisely echo the language we saw previously in clause—where was it? Anyway, we have come across this in a previous clause. When it comes to publishing material that can be excluded, the language is just the same.

I would like to make it clear that, while, obviously, this decision is a matter for Ofcom, I would expect that exclusion to be used on a pretty rare basis. Obviously, one would expect matters that are acutely commercially sensitive to be excluded—or redacted—to address that. If there was very sensitive intellectual property, where it would prejudice a company’s commercial interest to have all of that intellectual property exposed, I would expect Ofcom to exercise the exclusion or at least redact what it publishes.

Clause 138 - Appeals against OFCOM decisions relating to the register under section 81

Christina Rees (Labour/Co-operative, Neath)

With this, it will be convenient to consider clause 139 stand part.

Barbara Keeley (Labour, Worsley and Eccles South)

Good morning, Ms Rees. It is a pleasure to serve on the Committee with you in the Chair. Clause 138 allows companies to make appeals against Ofcom’s decisions regarding the categorisation of services within categories 1, 2A or 2B.

We have argued, many times, that we believe the Government’s size-based approach to categorisation is flawed. Our preference for an approach based on risk is backed up by the views of multiple stakeholders and the Joint Committee. It was encouraging to hear last week of the Minister’s intention to look again at the issues of categorisation, and I hope we will see movement on that on Report.

Clause 138 sets out that where a regulated provider has filed an appeal, they are exempt from carrying out the duties in the Bill that normally apply to services designated as category 1, 2A or 2B. That is concerning, given that there is no timeframe in which the appeals process must be concluded.

While the right to appeal is important, it is feasible that many platforms will raise appeals about their categorisation to delay the start of their duties under the Bill. I understand that the platforms will still have to comply with the duties that apply to all regulated services, but for a service that has been classified by Ofcom as high risk, it is potentially dangerous that none of the risk assessments on measures to assess harm will be completed while the appeal is taking place. Does the Minister agree that the appeals process must be concluded as quickly as possible to minimise the risk? Will he consider putting a timeframe on that?

Clause 139 allows for appeals against decisions by Ofcom to issue notices about dealing with terrorism and child sexual abuse material, as well as a confirmation decision or a penalty notice. As I have said, in general the right to appeal is important. However, would an appeals system work if, for example, a company were appealing to a notice under clause 103? In what circumstances does the Minister imagine that a platform would appeal a notice by Ofcom requiring the platform to use accredited technology to identify child sexual abuse content and swiftly take down that content? It is vital that appeals processes are concluded as rapidly as possible, so that we do not risk people being exposed to harmful or dangerous content.

Chris Philp (Conservative, Croydon South)

The shadow Minister has set out the purpose of the clauses, which provide for, in clause 138 appeal rights for decisions relating to registration under clause 81, and in clause 139 appeals against Ofcom notices.

I agree that it is important that judicial decisions in this area get made quickly. I note that the appeals are directly to the relevant upper tribunal, which is a higher tier of the tribunal system and tends to be a little less congested than the first-tier tribunal, which often gets used for some first-instance matters. I hope that appeals going to the upper tribunal, directly to that more senior level, provides some comfort.

On putting in a time limit, the general principle is that matters concerning listing are reserved to the judiciary. I recall from my time as a Minister in the Ministry of Justice, that the judiciary guards its independence fiercely. Whether it is the Senior President of Tribunals or the Lord Chief Justice, they consider listing matters to be the preserve of the judiciary, not the Executive or the legislature. Compelling the judiciary to hear a case in a certain time might well be considered to infringe on such principles.

We can agree, however—I hope the people making those listing decisions hear that we believe, that Parliament believes—that it is important to do this quickly, in particular where there is a risk of harm to individuals. Where there is risk to individuals, especially children, but more widely as well, those cases should be heard very expeditiously indeed.

The hon. Member for Worsley and Eccles South also asked about the basis on which appeals might be made and decided. I think that is made fairly clear. For example, clause 139(3) makes it clear that, in deciding an appeal, the upper tribunal will use the same principles as would be applied by the High Court to an application for judicial review—so, standard JR terms—which in the context of notices served or decisions made under clause 103 might include whether the power had been exercised in conformity with statute. If the power were exercised or purported to be exercised in a manner not authorised by statute, that would be one grounds for appeal, or if a decision were considered so grossly unreasonable that no reasonable decision maker could make it, that might be a grounds for appeal as well.

I caution the Committee, however: I am not a lawyer and my interpretation of judicial review principles should not be taken as definitive. Lawyers will advise their clients when they come to apply the clause in practice and they will not take my words in Committee as definitive when it comes to determining “standard judicial review principles”—those are well established in law, regardless of my words just now.

Barbara Keeley (Labour, Worsley and Eccles South)

There is a concern that platforms might raise appeals about their categorisation in order to delay the start of their duties under the Bill. How would the Minister act if that happened—if a large number of appeals were pending and the duties under the Bill therefore did not commence?

Chris Philp (Conservative, Croydon South)

Clearly, resourcing of the upper tribunal is a matter decided jointly by the Lord Chancellor and the Secretary of State for Justice, in consultation with the Lord Chief Justice, and, in this case, the Senior President of Tribunals. Parliament would expect the resourcing of that part of the upper tribunal to be such that cases could be heard in an expedited matter. Particularly where cases concern the safety of the public—and particularly of children—we expect that to be done as quickly as it can.

Clause 140 - Power to make super-complaints

Kirsty Blackman (Scottish National Party, Aberdeen North)

I beg to move amendment 143, in clause 140, page 121, line 1, after “services” insert “, consumers”.

Christina Rees (Labour/Co-operative, Neath)

With this it will be convenient to discuss the following:

Amendment 144, in clause 140, page 121, line 2, after “users” insert “, consumers”.

Amendment 145, in clause 140, page 121, line 4, after “services” insert “, consumers”.

Amendment 146, in clause 140, page 121, line 5, after “users” insert “, consumers”.

Amendment 147, in clause 140, page 121, line 6, at end insert “, consumers”.

Amendment 148, in clause 140, page 121, line 7, after “users” insert “, consumers”.

Amendment 149, in clause 140, page 121, line 14, after “service” insert “, consumers”.

Amendment 150, in clause 140, page 121, line 18, at end insert “, consumers”.

Amendment 151, in clause 140, page 121, line 19, after “users” insert “, consumers”.

Amendment 152, in clause 140, page 121, line 25, at end insert—

“‘consumers’” means individuals in the United Kingdom acting for purposes that are wholly or mainly outside the trade, business, craft or profession of the individuals concerned.”

Kirsty Blackman (Scottish National Party, Aberdeen North)

The Committee has been flexible about grouping clauses should it make sense to do so. I ask that the Committee allow me to speak to this set of amendments alone. It does not make sense for me to discuss these amendments and amendment 77 at the same time. If I could separately discuss amendment 77, as it says on the Order Paper, then I would appreciate that.

This group of amendments specifically relate to consumer protection. It is the case that online fraud facilitated through social media platforms and search engines is one of the most prevalent forms of crime today. Reported incidents increased significantly during the pandemic, and often resulted in victims losing life-changing amounts of money. In addition to the financial impact of being scammed, there is the emotional and physical impact. We know it has a significant effect on people’s mental health. I am glad that the Government listened to the Joint Committee and the Culture, Media and Sport Committee, and changed the legislation to include fraud.

Amendment 143 is about expanding who can make super-complaints, in order to reflect the expansion of the Bill to include fraud. The Bill does not leave a lot of the details around super-complaints to be made in secondary legislation. These amendments specifically allow groups that are acting on behalf of consumers, or those who are making requests on behalf of consumers, to make super-complaints. I am not sure that if somebody is acting on behalf of consumers that fits into the definitions of users of the service and people representing users of the service. Perhaps the Minister can convince me otherwise. If consumers are losing significant amounts of money, or where there is risk of significant numbers of people losing significant amounts of money—for example, where a search engine allows fraudulent advertising to be the top result—including “consumers” in the Bill will allow organisations acting on behalf of consumers to take action. It may be that the Minister can give me some comfort in this, and let us know that organisations acting on behalf of consumers would potentially—if they meet other criteria—be able to put forward a super-complaint.

I understand that there are other methods of complaining—it is possible for other complaints to be made. However, given the significant increase in the risk to consumers in the past few years, it would seem sensible that the Minister give some consideration to whether this is adequately covered in the Bill, and whether consumers are adequately protected in this section of the Bill, as well as in the additional flawed clauses that the Minister added between publication of the original draft Bill and the Bill that we have before us today.

Barbara Keeley (Labour, Worsley and Eccles South)

The Bill currently specifies that super-complaints can be made back to Ofcom by bodies representing users or members of the public. The addition of consumer representatives through the amendments is important. Consumer representatives are a key source of information about harms to users of online services, which are widespread, and would be regulated by this legislation. We support the amendments, which would include consumers on the list as an entity that is eligible to make super-complaints.

Chris Philp (Conservative, Croydon South)

Clearly, we want the super-complaint function to be as effective as possible and for groups of relevant people, users or members of the public to be able to be represented by an eligible entity to raise super-complaints. I believe we are all on the same page in wanting to do that. If I am honest, I am a little confused as to what the addition of the term “consumers” will add. The term “users” is defined quite widely, via clause 140(6), which then refers to clause 181, where, as debated previously, a “user” is defined widely to include anyone using a service, whether registered or not. So if somebody stumbles across a website, they count as a user, but the definition being used in clause 140 about bringing super-complaints also includes “members of the public”—that is, regular citizens. Even if they are not a user of that particular service, they could still be represented in bringing a complaint.

Given that, by definition, “users” and “members of the public” already cover everybody in the United Kingdom, I am not quite sure what the addition of the term “consumers” adds. By definition, consumers are a subset of the group “users” or “members of the public”. It follows that in seeking to become an eligible entity, no eligible entity will purport to act for everybody in the United Kingdom; they will always be seeking to define some kind of subset of people. That might be children, people with a particular vulnerability or, indeed, consumers, who are one such subset of “members of the public” or “users”. I do not honestly understand what the addition of the word “consumers” adds here when everything is covered already.

Kirsty Blackman (Scottish National Party, Aberdeen North)

Will the Minister explicitly say that he thinks that an eligible entity, acting on behalf of consumers, could, if it fulfils the other criteria, bring a super-complaint?

Chris Philp (Conservative, Croydon South)

Yes, definitely. That is the idea of an eligible entity, which could seek to represent a particular demographic, such as children or people from a particular marginalised group, or it could represent people who have a particular interest, which would potentially include consumers. So I can confirm that that is the intention behind the drafting of the Bill. Having offered that clarification and made clear that the definition is already as wide as it conceivably can be—we cannot get wider than “members of the public”—I ask the hon. Member for Aberdeen North to consider withdrawing the amendments, particularly as there are so many. It will take a long time to vote on them.

Kirsty Blackman (Scottish National Party, Aberdeen North)

I thank the Minister for the clarification. Given that he has explicitly said that he expects that groups acting on behalf of consumers could, if they fulfil the other criteria, be considered as eligible entities for making super-complaints, I beg to ask leave to withdraw the amendment.

Kirsty Blackman (Scottish National Party, Aberdeen North)

I beg to move amendment 77, in clause 140, page 121, line 9, leave out subsection (2).

This amendment removes the tests that complaints have to be of particular importance in order to be admissible.

When I first read clause 140, subsection (2) raised a significant number of red flags for me. The subsection might be reasonable if we did not have giant companies—social media platforms particularly—that significant numbers of people across the UK use regularly. Facebook might be counted as a “single regulated service”, but 85% of UK residents—57.1 million people—had a Facebook account earlier this year. Twitter is used by 28% of people living in the UK, which is 19 million users. TikTok is at 19%, which is significantly less, but still a very high number of people—13 million users. I can understand the decision that a super-complaint picking on one certain company might be a bit extreme, but it does not make sense when we are considering the Facebooks of this world.

If someone is making a complaint about a single regulated service and that service is Facebook, Twitter, TikTok or another large platform—or a new, yet-to-be-created platform—that significant numbers of people use, there is no justification for treating that complaint differently just because it is against a single entity. When a complaint is made against Facebook—I am picking on Facebook because 85% of the UK public are members of it; it is an absolute behemoth—I would like there to be no delay in its being taken to Ofcom. I would like Ofcom not to have to check and justify that the complaint is “of particular importance”.

Subsection (2)(a) states that one of the tests of the complaint should be that it “is of particular importance” or, as subsection (2)(b) notes, that it

“relates to the impacts on a particularly large number of users of the service or members of the public.”

I do not understand what

“large number of users of the service”

would mean. Does a large number of the users of Facebook mean 50% of its users? Does it mean 10%? What is a large number? Is that in percentage terms, or is it something that is likely to impact 1 million people? Is that a large number? The second part—

“large number…of members of the public”—

is again difficult to define. I do not think there is justification for this additional hoop just because the complaint relates to a single regulated service.

Where a complaint relates to a very small platform that is not causing significant illegal harm, I understand that Ofcom may want to consider whether it will accept, investigate and give primacy and precedence to that. If the reality is that the effect is non-illegal, fairly minor and impacts a fairly small number of people, in the order of hundreds instead of millions, I can understand why Ofcom might not want to give that super-complaint status and might not want to carry out the level of investigation and response necessary for a super-complaint. But I do not see any circumstances in which Ofcom could justify rejecting a complaint against Facebook simply because it is a complaint against a single entity. The reality is that if something affects one person on Facebook, it will affect significantly more than one person on Facebook because of Facebook’s absolutely massive user base. Therefore this additional hoop is unrealistic.

Paragraph (a), about the complaint being “of particular importance”, is too woolly. Does it relate only to complaints about things that are illegal? Does it relate only to things that are particularly urgent—something that is happening now and that is having an impact today? Or is there some other criterion that we do not yet know about?

I would very much appreciate it if the Minister could give some consideration to amendment 77, which would simply remove subsection (2). If he is unwilling to remove that subsection, I wonder whether we could meet halfway and whether, let us say, category 1 providers could all be excluded from the “single provider” exemption, because they have already been assessed by Ofcom to have particular risks on their platforms. That group is wider than the three names that I have mentioned, and I think that that would be a reasonable and realistic decision for the Government—and direction for Ofcom—to take. It would be sensible.

If the Government believe that there is more information—more direction—that they could add to the clause, it would be great if the Minister could lay some of that out here and let us know how he intends subsection (2) to operate in practice and how he expects Ofcom to use it. I get that people might want it there as an additional layer of protection, but I genuinely do not imagine that it can be justified in the case of the particularly large providers, where there is significant risk of harm happening.

I will illustrate that with one last point. The Government specifically referred earlier to when Facebook—Meta—stopped proactively scanning for child sexual abuse images because of an issue in Europe. The Minister mentioned the significant amount of harm and the issues that were caused in a very small period. And that was one provider—the largest provider that people use and access. That massive amount of harm can be caused in a very small period. I do not support allowing Meta or any other significantly large platform to have a “get out of jail” card. I do not want them to be able to go to Ofcom and say, “Hey, Ofcom, we’re challenging you on the basis that we don’t think this complaint is of particular importance” or “We don’t think the complaint relates to the impacts on a particularly large number of users of the service or members of the public.” I do not want them to have that ability to wriggle out of things because this subsection is in the Bill, so any consideration that the Minister could give to improving clause 140 and subsection (2) would be very much appreciated.

Barbara Keeley (Labour, Worsley and Eccles South)

We support the SNP’s amendment 77, moved by the hon. Member for Aberdeen North. The super-complaints mechanism introduced by clause 140 is a useful device for reporting numerous, widespread concerns about the harm caused by multiple or single services or providers. Subsection (1) includes the conditions on the subjects of super-complaints, which can relate to one or more services. However, as the hon. Member has pointed out, that is caveated by subsection (2), under which a super-complaint that refers to a single service or provider must prove, as she has just outlined, that it is “of particular importance” or

“relates to the impacts on a particularly large number of users of the service or members of the public.”

Given the various hoops through which a super-complaint already has to jump, it is not clear why the additional conditions are needed. Subsection (2) significantly muddies the waters and complicates the provisions for super-complaints. For instance, how does the Minister expect Ofcom to decide whether the complaint is of particular importance? What criteria does he expect the regulator to use? Why include it as a metric in the first place when the super-complaint has already met the standards set out in subsection (1)?

There must be no loopholes in the complaints procedures, including as regards holding individual services and providers to account. Amendment 77 both strengthens and simplifies the super-complaint provisions, and we support it.

Chris Philp (Conservative, Croydon South)

I think the Committee, and the House, are pretty unanimous in agreeing that the power to make super-complaints is important. As we have discussed, there are all kinds of groups, such as children, under-represented groups and consumers, that would benefit from being represented where systemic issues are not being addressed and that Ofcom may have somehow overlooked or missed in the discharge of its enforcement powers.

I would observe in passing that one of the bases on which super-complaints can be made—this may be of interest to my hon. Friend the Member for Don Valley—is where there is a material risk under clause 140(1)(b) of

“significantly adversely affecting the right to freedom of expression within the law of users of the services or members of the public”.

That clause is another place in the Bill where freedom of expression is expressly picked out and supported. If freedom of expression is ever threatened in a way that we have not anticipated and that the Bill does not provide for, there is a particular power here for a particular free speech group, such as the Free Speech Union, to make a super-complaint. I hope that my hon. Friend finds the fact that freedom of expression is expressly laid out there reassuring.

Let me now speak to the substance of amendment 77, tabled by the hon. Member for Aberdeen North. It is important to first keep in mind the purpose of the super-complaints, which, as I said a moment ago, is to provide a basis for raising issues of widespread and systemic importance. That is the reason for some of the criteria in sections (1)(a), (b) and (c), and why we have subsection (2)—because we want to ensure that super-complaints are raised only if they are of a very large scale or have a profound impact on freedom of speech or some other matter of particular importance. That is why the tests, hurdles and thresholds set out in clause 140(2) have to be met.

If we were to remove subsection (2), as amendment 77 seeks to, that would significantly lower the threshold. We would end up having super-complaints that were almost individual in nature. We set out previously why we think an ombudsman-type system or having super-complaints used for near-individual matters would not be appropriate. That is why the clause is there, and I think it is reasonable that it is.

The hon. Lady asked a couple of questions about how this arrangement might operate in practice. She asked whether a company such Facebook would be caught if it alone were doing something inappropriate. The answer is categorically yes, because the condition in clause 140(2)(b)—

“impacts on a particularly large number of users”,

which would be a large percentage of Facebook’s users,

“or members of the public”—

would be met. Facebook and—I would argue—any category 1 company would, by definition, be affecting large numbers of people. The very definition of category 1 includes the concept of reach—the number of people being affected. That means that, axiomatically, clause 140(2)(b) would be met by any category 1 company.

The hon. Lady also raised the question of Facebook, for a period of time in Europe, unilaterally ceasing to scan for child sexual exploitation and abuse images, which, as mentioned, led to huge numbers of child sex abuse images and, consequently, huge numbers of paedophiles not being detected. She asks how these things would be handled under the clause if somebody wanted to raise a super-complaint about that. Hopefully, Ofcom would stop them happening in the first place, but if it did not the super-complaint redress mechanism would be the right one. These things would categorically be caught by clause 140(2)(a), because they are clearly of particular importance.

In any reasonable interpretation of the words, the test of “particular importance” is manifestly met when it comes to stopping child sexual exploitation and abuse and the detection of those images. That example would categorically qualify under the clause, and a super-complaint could, if necessary, be brought. I hope it would never be necessary, because that is the kind of thing I would expect Ofcom to catch.

Having talked through the examples from the hon. Lady, I hope I have illustrated how the clause will ensure that either large-scale issues affecting large numbers of people or issues that are particularly serious will still qualify for super-complaint status with subsection (2) left in the Bill. Given those assurances, I urge the hon. Member to consider withdrawing her amendment.

Kirsty Blackman (Scottish National Party, Aberdeen North)

I welcome the Minister’s fairly explicit explanation that he believes that every category 1 company would be in scope, even if there was a complaint against one single provider. I would like to push the amendment to a vote on the basis of the comments I made earlier and the fact that each of these platforms is different. We have heard concerns about, for example, Facebook groups being interested in celebrating eight-year-olds’ birthdays. We have heard about the amount of porn on Twitter, which Facebook does not have in the same way. We have heard about the kind of algorithmic stuff that takes people down a certain path on TikTok. We have heard all these concerns, but they are all specific to that one provider. They are not a generic complaint that could be brought toward a group of providers.

Chris Philp (Conservative, Croydon South)

Would the hon. Lady not agree that in all those examples—including TikTok and leading people down dark paths—the conditions in subsection (2) would be met? The examples she has just referred to are, I would say, certainly matters of particular importance. Because the platforms she mentions are big in scale, they would also meet the test of scale in paragraph (b). In fact, only one of the tests has to be met—it is one or the other. In all the examples she has just given, not just one test—paragraph (a) or (b)— would be met, but both. So all the issues she has just raised would make a super-complaint eligible to be made.

Kirsty Blackman (Scottish National Party, Aberdeen North)

I am glad the Minister confirms that he expects that that would be the case. I am clearer now that he has explained it, but on my reading of the clause, the definitions of “particular importance” or

“a particularly large number of users…or members of the public”

are not clear. I wanted to ensure that this was put on the record. While I do welcome the Minister’s clarification, I would like to push amendment 77 to a vote.

Christina Rees (Labour/Co-operative, Neath)

With this it will be convenient to discuss the following:

Amendment 153, in clause 141, page 121, line 32, after “140” insert

“, which must include the requirement that OFCOM must respond to such complaints within 90 days”

Clauses 141 and 142 stand part.

Barbara Keeley (Labour, Worsley and Eccles South)

Good afternoon, Ms Rees. The importance of an effective complaints procedure has been argued strongly by many people who have given oral and written evidence to this Committee and indeed by Committee members. It is welcome that clause 140 introduces a super-complaints mechanism to report multiple, widespread concerns about the harm caused by services, but the lack of redress for individuals has been raised repeatedly.

This is a David and Goliath situation, with platforms holding all the power, while individuals are left to navigate the often complex and underfunded internal complaints systems provided by the platforms. This is what the London School of Economics and Political Science has called the

“current imbalance between democratic, ‘people’ power and the power of platforms.”

As we argued on new clause 1, there is a clear need to consider a route for redress at an individual level. The current situation is unsatisfactory for people who feel they have been failed by a service’s complaints system and who find themselves with no source of redress.

The current situation is also unsatisfactory for the regulator. Kevin Bakhurst from Ofcom told the right hon. Member for Basingstoke during our evidence sessions:

“Those individual complaints, although we are not going to be very specific in looking at individual pieces of material per se, are very useful to alert us where there are issues around particular types of offence or harm that the platforms are not seen to be dealing with properly.”––[Official Report, Online Safety Public Bill Committee, 24 May; c.9-10, Q9.]

An external redress process was recommended by the Joint Committee on the draft Bill and has been suggested by multiple stakeholders. Our new clause would make sure that we find the best possible solution to the problem. I hope the Minister reconsiders these points and supports new clause 1 when the time comes to vote on it.

As I have argued previously, organisations will not be able to make full and effective use of the super-complaints system unless the platforms risk assessments are published in full. The Opposition’s amendments 11 and 13 sought to address that issue, and I am disappointed that the Government failed to grasp their importance. There is now a real risk that civil society and other groups will not be able to assess and identify the areas where a company may not be meeting its safety duties. How does the Minister expect organisations making super-complaints to identify and argue that a service is causing harm to its users if they have no access to the company’s own analysis and mitigation strategy? Not including a duty to publish risk assessments leaves a gaping hole in the Bill and risks undermining the super-complaints mechanism. I hope that the Minister will reconsider his opposition to this important transparency mechanism in future stages of the Bill.

For powers about super-complaints to be meaningful, there must be a strict deadline for Ofcom to respond to them, and we will support the SNP amendment if it is pushed to a vote. The Enterprise Act 2002 gives a 90-day deadline for the Competition and Markets Authority to respond. Stakeholders have suggested a similar deadline to respond for super-complaints as an effective mechanism to ensure action from the regulator. I urge the Minister to consider this addition, either in the Bill with this amendment, or in the secondary legislation that the clause requires.

Clauses 141 and 142 relate to the structures around super-complaints. Clause 141 appears to be more about handing over powers to the Secretary of State than insuring a fair system of redress. The Opposition have said repeatedly how we feel about the powers being handed over to the Secretary of State. Clause 142 includes necessary provisions on the creation and publication of guidance by Ofcom, which we do not oppose. Under clause 141, Ofcom will have to provide evidence of the validity of the super-complaint and the super-complainant within a stipulated timeframe. However, there is little in the Bill about what will happen when a super-complaint is made, and much of the detail on how that process will work has been left to secondary legislation.

Does the Minister not think that it is strange to leave it up to the Secretary of State to determine how Ofcom is to deal with super-complaints? How does he envisage the system working, and what powers does he think Ofcom will need to be able to assert itself in relation to super-complaints? It seems odd to leave the answers to those important questions out of the Bill.

Kirsty Blackman (Scottish National Party, Aberdeen North)

I appreciate the support from the Opposition in relation to amendment 153. I want to talk about amendment 153, but also about some of the issues there are with clauses 140 and 141—not so much 142. Clause 140(3) allows the Secretary of State to make regulations in relation to working out who an eligible entity is for making super-complaints. The Minister has helpfully been very clear that the definition is likely to be pretty wide—the definition of groups that are working on behalf of consumers is likely to be wide. The regulations that are made in this section are going to be made under the draft affirmative procedure. Although secondary legislation is not brilliant, the affirmative procedure will allow more scrutiny than negative procedure. I appreciate that the Minister has chosen—or the people drafting the Bill have chosen—that way forward for deciding on the eligible entity.

I am concerned that when it comes to clause 141(1), the regulations setting out how the complaints process will be made, and the regulation level, will be done under the negative procedure rather than under the draft affirmative procedure. I have got the Delegated Powers and Regulatory Reform Committee memorandum, which tells us about each of the delegated powers of the Bill, and the justification for them. I understand that the Department is referring to the Police Super-complaints (Designation and Procedure) Regulations 2018, which were made under the negative procedure. However, I am not convinced that in the Policing and Crime Act 2017 we were left with quite so little information about what would be included in those complaints. I think the justification for the negative procedure is not great, especially given the concerns raised about the over-reach of the Secretary of State’s power and the amount of influence they have on Ofcom.

I think clause 142 is fine; it makes sense that Ofcom is able to make guidance. I would have liked to see the regulation part involve more input from parliamentarians. If there is not going to be more input from parliamentarians, there should at least be more in the Bill about how the complaints procedure would work. The reason we have tabled amendment 153 is to ensure that Ofcom provides a response. That response does not have to be a final response saying, “We have investigated everything and these are the findings.” I understand that that may take some time. However, Ofcom must provide a response to super-complainants in 90 days. Even if it were to provide that information in the terms laid out in clause 141(2)(d)—whether a complaint is within clause 140, or is admissible under clause 140 or whether an entity is an eligible entity—and we were to commit Ofcom to provide that information within 90 days, that would be better than the current drafting, which is no time limits at all. It is not specified. It does not say that Ofcom has to deal with the complaint within a certain length of time.

A quick response from Ofcom is important for a number of reasons. I expect that those people who are bringing super-complaints are likely to be third sector organisations. Such organisations do not have significant or excessive budgets. They will be making difficult choices about where to spend their money. If they are bringing forward a super-complaint, they will be doing it on the basis that they think it is incredibly important and it is worth spending their finite funding on legal advice in order to bring forward that super-complaint. If there is an unnecessary delay before Ofcom even recognises whether the complaint is eligible, charities may spend money unnecessarily on building up a further case for the next stages of the super-complaint. They should be told very quickly, “No, we are not accepting this” or “Yes, we are accepting this”.

Ofcom has the ability to levy fees so that it can provide the service that we expect it to provide as a result of the Bill. It will have a huge amount of extra work compared with its current work. It needs to be able to levy fees in order to fulfil its functions. If there is no timeline and it says, “We want to levy fees because we want to be able to respond on a 90-day basis”, it would not be beyond companies to come back and say, “That is unrealistic—you should not be charging us extra fees in order for you to have enough people to respond within a 90-day period to super-complaints.”

If Ofcom is to be able to levy fees effectively to provide the level of service that we would all—including, I am sure, the Minister—like to see to super-complainants who are making very important cases on behalf of members of the public and people who are being harmed by content online, and to give Ofcom that backing when it is setting the structures and levying the fees, it would be sensible for the Minister to make some commitments about the timelines for super-complaints.

In earlier clauses of the Bill, primacy is given to complaints to social media platforms, for example—to regulated providers—about freedom of speech. The Bill says that they are to give such complaints precedence. They are to deal with them as important and, where some content has been taken down, quickly. That precedence is written into the Bill. Such urgency is not included in these three clauses on super-complaints in the way I would like to see. The Bill should say that Ofcom has to deal with super-complaints quickly. I do not mean it should do that by doing a bad job. I mean that it should begin to investigate quickly, work out whether it is appropriate to investigate it under the super-complaints procedure, and then begin the investigation.

In some cases, stuff will be really urgent and will need to be dealt with very quickly, especially if, for example, it includes child sexual abuse images. That would need to be dealt with in a matter of hours or days, rather than any longer period.

I would like to see some sort of indication given to Ofcom about the timelines that we are expecting it to work to. Given the amount of work that third sector organisations have put in to support this Bill and try to make it better, this is a fairly easy amendment for the Minister to accede to—an initial response by Ofcom within a 90-day period; we are not saying overnight—so that everyone can be assured that the internet is, as the Minister wishes, a much safer place.

Chris Philp (Conservative, Croydon South)

As we have heard, the super-complaint process is extremely important for enabling eligible entities representing the interests of users or members of the public to make representations where there are systemic problems that need to be addressed. I think we all agree that is an important approach.

Clauses 140 to 142 set out the power to make super-complaints, the procedure for making them and the guidance that Ofcom will publish in relation to them. The shadow Minister raised a few questions first, some of which we have touched on previously. In relation to transparency, which we have debated before, as I said previously, there are transparency provisions in clause 64 that I think will achieve the objectives that she set out.

The shadow Minister also touched on some of the questions about individual rather than systemic complaints. Again, we debated those right at the beginning, I think, when we discussed the fact that the approach taken in the Bill is to deal with systems and processes, because the scale involved here is so large. If we tried to create an architecture whereby Ofcom, or some other public body, adjudicated individual complaints, as an ombudsman would, it would simply be overwhelmed. A much better approach is to ensure that the systems and processes are fixed, and that is what the Bill does.

The hon. Member for Aberdeen North had some questions too. She touched in passing on the Secretary of State’s powers to specify by regulation who counts as an eligible entity—this is under clause 140(3). Of course, the nature of those regulations is circumscribed by the very next subsection, subsection (4), in which one of the criteria is that the entity

“must be a body representing the interests of users of regulated services, or members of the public”.

That speaks to the important point about consumers that we touched on this morning. As the hon. Lady said, this will be done by the affirmative procedure, so there is enhanced parliamentary scrutiny. I hope that makes it clear that it would be done in a reasonable way.

Kirsty Blackman (Scottish National Party, Aberdeen North)

I am sorry to try the Minister’s patience. I think that we are in quite a lot of agreement about what an eligible entity looks like. I appreciate that this is being done by the affirmative procedure, but we seem to be in much less agreement about the next clause, which is being done by the negative procedure. I would like him to explain that contrast.

Chris Philp (Conservative, Croydon South)

Let me move on to clause 141 and amendment 153, which the hon. Lady spoke to a moment ago. Let us first talk about the question of time limits. As she said, the regulations that can be made under the clause include regulations on the time for various steps in the process. Rather than setting those out in the Bill, our intention is that when those regulations are moved they will include those time limits, but we want to consult Ofcom and other appropriate bodies to ensure that the deadlines set are realistic and reasonable. I cannot confirm now what those will be, because we have not yet done the consultation, but I will make a couple of points.

First, the steps set out in clause 141(2)(d)(i), (ii) and (iii), at the top of page 122, are essentially procedural steps about whether a particular complaint is in scope, whether it is admissible and whether the entity is eligible. Those should be relatively straightforward to determine. I do not want to pre-empt the consultation and the regulations, but my expectation is that those are done in a relatively short time. The regulations in clause 141(2)

“may…include provisions about the following matters”—

it then lists all the different things—and the total amount of time the complaint must take to resolve in its totality is not one of them. However, because the word “include” is used, it could include a total time limit. If the regulations were to set a total time limit, one would have to be a little careful, because clearly some matters are more complicated than others. The hon. Member for Aberdeen North acknowledged that we would not want to sacrifice quality and thoroughness for speed. If an overall time limit were set, it would have to accommodate cases that were so complicated or difficult, or that required so much additional information, that they could not be done in a period of, say, 90 days. I put on record that that is something that the consultation should carefully consider. We are proceeding in this way—with a consultation followed by regulations—rather than putting a time limit in the Bill because it is important to get this right.

The question was asked: why regulations rather than Ofcom? This is quite an important area, as the hon. Member for Aberdeen North and the shadow Minister—the hon. Member for Worsley and Eccles South—have said. This element of governmental and parliamentary oversight is important, hence our having regulations, rather than letting Ofcom write its own rules at will. We are talking about an important mechanism, and we want to make sure that it is appropriately responsive.

The question was asked: why will the regulations be subject to the negative, rather than the affirmative, procedure? Clearly that is a point of detail, albeit important detail. Our instinct was that the issue was perhaps of slightly less parliamentary interest than the eligible entity list, which will be keenly watched by many external parties. The negative procedure is obviously a little more streamlined. There is no hard-and-fast rule as to why we are using negative rather than affirmative, but that was broadly the thinking. There will be a consultation, in which Ofcom will certainly be consulted. Clause 141(3) makes it clear that others can be consulted too. That consultation will be crucial in ensuring that we get this right and that the process is as quick as it can be—that is important—but also delivers the right result. I gently resist amendment 153 and commend clauses 140 to 142.

Kirsty Blackman (Scottish National Party, Aberdeen North)

Some Acts that this Parliament has passed have provided for a time limit within which something must be considered, but the time limit can be extended if the organisation concerned says to the Secretary of State, “Look, this is too complicated. We don’t believe that we can do this.” I think that was the case for the Subsidy Control Act 2022, but I have been on quite a few Bill Committees, so I may be wrong about that. That situation would be the exception, obviously, rather than the rule, and would apply only in the most complicated cases.

Chris Philp (Conservative, Croydon South)

The hon. Lady is suggesting a practical solution: a default limit that can be extended if the case is very complicated. That sort of structure can certainly be consulted on and potentially implemented in regulations. She referred to asking the Secretary of State’s permission. Opposition Members have been making points about the Secretary of State having too much power. Given that we are talking here about the regulator exercising their investigatory power, that kind of extension probably would not be something that we would want the Secretary of State’s permission for; we would find some other way of doing it. Perhaps the chief executive of Ofcom would have to sign it off, or some other body that is independent of Government.

Kirsty Blackman (Scottish National Party, Aberdeen North)

Sorry, I phrased that quite badly. My point was more about having to justify things—having to say, “Look, we are sorry; we haven’t managed to do this in the time in which we were expected to. This is our justification”—rather than having to get permission. Apologies for phrasing that wrongly. I am glad that the Minister is considering including that point as something that could be suggested in the consultation.

I appreciate what the Minister says, but I still think we should have a time limit in the Bill, so I am keen to push amendment 153 to a vote.

Clause 141 - Procedure for super-complaints

Clause 143 - Statement of strategic priorities

Christina Rees (Labour/Co-operative, Neath)

With this it will be convenient to discuss clause 144 stand part.

Alex Davies-Jones (Labour, Pontypridd)

As we know, clause 143 introduces a power for the Secretary of State to set out a statement of the Government’s strategic priorities in relation to online safety matters. Given that the power is similar to those that already exist in the Communications Act 2003, we do not formally oppose the clause. We welcome the fact that the Secretary of State must follow a consultation and parliamentary procedure before proceeding. It is vital that transparency surrounds any targets or priorities that the Secretary of State may outline. However, we want to put on record our slight concerns around the frequency limitations on amendments that are outlined in subsections (7) and (8). This is a direct interference regime, and we would appreciate the Minister’s reassurances on the terms of how it will work in practice.

We also welcome clause 144, which sets out the consultation and parliamentary procedure requirements that must be satisfied before the Secretary of State can designate a statement of strategic priorities under clause 143. We firmly believe that parliamentary oversight must be at the heart of the Bill, and the Minister’s Back Benchers agree. We have heard compelling statements from the right hon. Member for Basingstoke and other colleagues about just how important parliamentary oversight of the Bill will be, even when it has received Royal Assent. That is why clause 144 is so important: it ensures that the Secretary of State must consult Ofcom when considering the statement of strategic priorities.

Following that, the draft statement must be laid before Parliament for proper scrutiny. As we have said before, this is central to the Bill’s chances of success, but Labour firmly believes that it would be unreasonable for us to expect the Secretary of State to always be an expert across every policy area out there, because it is not possible. That is why parliamentary scrutiny and transparency are so important. It is not about the politics; it is about all of us working together to get this right. Labour will support clause 144 because, fundamentally, it is for the Secretary of State to set out strategic priorities, but we must ensure that Parliament is not blocked from its all-important role in providing scrutiny.

Chris Philp (Conservative, Croydon South)

I thank the shadow Minister for her broad support for these two clauses. Clause 143 provides the power, but not an obligation, for the Secretary of State to set out a strategic statement on her priorities for online safety matters. As the shadow Minister said, it is similar to powers that already exist in other areas. The clause links back to clause 78, whereby Ofcom must have regard to the strategic priorities and set out how it responds to them when they are updated. On clause 144, I am glad that the shadow Minister accepts the consultation has to happen and that the 40-day period for Parliament to consider changes to the draft statement and, if it wishes to, to object to them is also a welcome opportunity for parliamentary scrutiny.

The Government have heard the wider points about parliamentary scrutiny and the functioning of the Joint Committee, which my right hon. Friend the Member for Basingstoke mentioned previously. I have conveyed them to higher authorities than me, so that transmission has occurred. I recognise the valuable work that the Joint Committee of the Commons and Lords did in scrutinising the Bill prior to its introduction, so I am glad that these clauses are broadly welcome.

Clause 145 - Directions about advisory committees

Alex Davies-Jones (Labour, Pontypridd)

Labour supports the clause, which enables the Secretary of State to give Ofcom a direction to establish an expert committee to advise it on a specific online safety matter. As we have said repeatedly, it is vital that expert stakeholders are included as we begin the challenging process of regulating the internet. With that in mind, we need to ensure that the committee truly is expert and that it remains independent.

The Minister knows that I have concerns about Ofcom’s ability to remain truly independent, particularly given the recent decision to appoint a Tory peer to chair the organisation. I do not want to use our time today to make pointed criticisms about that decision—much as I would like to—but it is important that the Minister addresses these concerns. Ofcom must be independent—it really is quite important for the future success of the Bill. The expert committee’s chair, and its other members, must be empowered to report freely and without influence. How can the Minister ensure that that will genuinely be the case?

Subsection (4) places a duty on an advisory committee established under such a direction to publish a report within 18 months of its being established. I want to push the Minister on the decision to choose 18 months. I have mentioned my concerns about that timeframe; it seems an awfully long time for the industry, stakeholders, civil society and, indeed, Parliament to wait. I cannot be clearer about how important a role I think that this committee will have, so I would be grateful if the Minister could clarify why he thinks it will take 18 months for such a committee to be established.

That said, we broadly support the principles of what the clause aims to do, so we have not sought to amend it at this stage.

Chris Philp (Conservative, Croydon South)

I thank the shadow Minister for her comments and questions. She raised two substantive points on the clause; I will address those, rather than any wider issues that may be contentious.

The first question was about whether the advisory committee would be independent, and how we can be certain that it will not be unduly interfered in by the Government. The answer lies clearly in subsection (3). Paragraphs (a) and (b) make it very clear that although the Secretary of State may direct Ofcom to establish the committee, the identity of the people on the committee is for Ofcom to determine. Subsection (3)(a) states very clearly that the chairman is “appointed by OFCOM”, and subsection (3)(b) states that members of the committee are

“appointed by OFCOM as OFCOM consider appropriate.”

It is Ofcom, not the Secretary of State, that appoints the chair and the members. I trust that that deals with the question about the independence of the members.

On the second question, about time, the 18 months is not 18 months for the committee to be established—I am looking at clause 145(4)—but 18 months for the report to be published. Subsection (4) says “within” a period of 18 months, so it does not have to be 18 months for delivery of the report; it could be less, and I am sure that in many cases it will be. I hope that answers the shadow Minister’s questions on the clause, and I agree that it should stand part of the Bill.

Clause 146 - Directions in special circumstances

Christina Rees (Labour/Co-operative, Neath)

With this it will be convenient to discuss new clause 10—Special circumstances—

“(1) This section applies where OFCOM has reasonable grounds for believing that circumstances exist that present a threat—

(a) to the health or safety of the public, or

(b) to national security.

(2) OFCOM may, in exercising their media literacy functions, give priority for a specified period to specified objectives designed to address the threat presented by the circumstances mentioned in subsection (1).

(3) OFCOM may give a public statement notice to—

(a) a specified provider of a regulated service, or

(b) providers of regulated services generally.

(4) A ‘public statement notice’ is a notice requiring a provider of a regulated service to make a publicly available statement, by a date specified in the notice, about steps the provider is taking in response to the threat presented in the circumstances mentioned in subsection (1).

(5) OFCOM may, by a public statement notice or a subsequent notice, require a provider of a regulated service to provide OFCOM with such information as they may require for the purpose of responding to that threat.

(6) If OFCOM takes any of the steps set out in this Chapter, they must publish their reasons for doing so.

(7) In subsection (2) ‘media literacy functions’ means OFCOM’s functions under section 11 of the Communications Act (duty to promote media literacy), so far as functions under that section relate to regulated services.”

This new clause gives Ofcom the power to take particular steps where it considers that there is a threat to the health and safety of the public or to national security, without the need for a direction from the Secretary of State.

Alex Davies-Jones (Labour, Pontypridd)

As we all know, the clause as it stands enables the Secretary of State to give Ofcom directions in circumstances where it considers that there is a threat to the health or safety of the public or to national security. That includes directing Ofcom to prioritise action to respond to a specific threat when exercising its media literacy functions, and to require specified service providers, or providers of regulated services more generally, to publicly report on what steps they are taking to respond to that threat.

However, Labour shares the concerns of the Carnegie UK Trust, among others, that there is no meaningful constraint on the Secretary of State’s powers to intervene as outlined in the clause. Currently, the Secretary of State has the power to direct Ofcom where they have “reasonable grounds for believing” that there is a threat to the public’s health or safety or to national security. The UK did not need these powers before—during the cold war, for example—so we have to ask: why now?

Chris Philp (Conservative, Croydon South)

So far as I am aware, the phenomenon of social media companies, to which media literacy relates, did not exist during the cold war.

Alex Davies-Jones (Labour, Pontypridd)

It did not, but there were examples of disinformation, misinformation and the spreading of falsehoods, and none of these powers existed at the time. It seems weird—if I can use that term—that these exist now. Surely, the more appropriate method would be for the Secretary of State to write a letter to Ofcom to which it had to have regard. As it stands, this dangerous clause ensures the Secretary of State has the power to interfere with day-to-day enforcement. Ultimately, it significantly undermines Ofcom’s overall independence, which we truly believe should be at the heart of the Bill.

With that in mind, I will now speak to our crucial new clause 10, which instead would give Ofcom the power to take particular steps, where it considers that there is a threat to the health and safety of the public or national security, without the need for direction from the Secretary of State. Currently, there is no parliamentary scrutiny of the powers outlined in clause 146; it says only that the Secretary of State must publish their reasoning unless national security is involved. There is no urgency threshold or requirement in the clause. The Secretary of State is not required to take advice from an expert body, such as Public Health England or the National Crime Agency, in assessing reasonable grounds for action. The power is also not bounded by the Bill’s definition of harm.

These instructions do two things. First, they direct Ofcom to use its quite weak media literacy duties to respond to the circumstances. Secondly, a direction turns on a power for Ofcom to ask a platform to produce a public statement about what the platform is doing to counter the circumstances or threats in the direction order—that is similar in some ways to the treatment of harm to adults. This is trying to shame a company into doing something without actually making it do it. The power allows the Secretary of State directly to target a given company. There is potential for the misuse of such an ability.

The explanatory notes say:

“the Secretary of State could issue a direction during a pandemic to require OFCOM to; give priority to ensuring that health misinformation and disinformation is effectively tackled when exercising its media literacy function; and to require service providers to report on the action they are taking to address this issue.”

Recent experience of the covid pandemic and the Russian invasion of Ukraine suggests that the Government can easily legislate when required in an emergency and can recall Parliament. The power in the Bill is a strong power, cutting through regulatory independence and targeting individual companies to evoke quite a weak effect. It is not being justified as an emergency power where the need to move swiftly is paramount. Surely, if a heavier-duty action is required in a crisis, the Government can legislate for that and explain to Parliament why the power is required in the context of a crisis.

Kim Leadbeater (Labour, Batley and Spen)

It is really important to make sure that the Bill does not end up being a cover for the Secretary of State of the day to significantly interfere with the online space, both now and in the future. At the moment, I am not satisfied that the Secretary of State’s powers littered through the Bill are necessary. I share other hon. Members’ concerns about what this could mean for both the user experience and online safety more broadly. I hope my hon. Friend agrees that the Minister needs to provide us—not just us here today, but civil society and others who might be listening—with more reassurance that the Secretary of State’s powers really are necessary.

Alex Davies-Jones (Labour, Pontypridd)

I completely agree with my hon. Friend. We talk time and again about this Bill being world leading, but with that comes a responsibility to show global leadership. Other countries around the world will be looking to us, and this Parliament, when they adopt their own, similar legislation, and we need to be mindful of that when looking at what powers we give to a Secretary of State—particularly in overruling any independence of Ofcom or Parliament’s sovereignty for that matter.

New clause 10 provides a viable alternative. The Minister knows that this is an area where even his Back Benchers are divided. He must closely consider new clause 10 and recognise that placing power in Ofcom’s hands is an important step forward. None of us wants to see a situation where the Secretary of State is able to influence the regulator. We feel that, without this important clause and concession, the Government could be supporting a rather dangerous precedent in terms of independence in regulatory systems more widely.

Kirsty Blackman (Scottish National Party, Aberdeen North)

I want to talk about a specific example. Perhaps the Minister will be able to explain why the legislation is written this way around when I would have written it the opposite way around, much more in line with proposed new clause 10.

Snapchat brought in the Snap Map feature, which that involved having geolocation on every individual’s phone; whenever anyone took a photo to put it on Snapchat, that geolocation was included. The feature was automatically turned on for all Snapchat users when it first came in, I think in 2017. No matter what age they were, when they posted their story on Snapchat, which is available to anyone on their friends list and sometimes wider, anyone could see where they were. If a child had taken a photo at their school and put it on Snapchat, anyone could see what school they went to. It was a major security concern for parents.

That very concerning situation genuinely could have resulted in children and other vulnerable people, who may not have even known that the feature had been turned on by default and would not know how to turn on ghost mode in Snapchat so as not to post their location, being put at risk. The situation could have been helped if media literacy duties had kicked in that meant that the regulator had to say, “This is a thing on Snapchat: geolocation is switched on. Please be aware of this if your children or people you are responsible for are using Snapchat.”

Chris Philp (Conservative, Croydon South)

Is the hon. Member aware of a similar situation that arose more recently with Strava? People’s running routes were publicly displayed in the same way, which led to incidents of stalking.

Kirsty Blackman (Scottish National Party, Aberdeen North)

I was aware that Strava did that mapping, which is why my friends list on Strava numbers about two people, but I was not aware that it had been publicly displayed. There are similar issues that routes can be public on things such as Garmin, so it is important to keep a note of that. I did not know that that information was public on Strava. If Ofcom had had the duty to ensure that people were aware of that, it would have been much easier for parents and vulnerable adults to take those decisions or have them taken on their behalf.

My reading of the clause is that if Ofcom comes across a problem, it will have to go and explain to the Secretary of State that it is a problem and get the Secretary of State to instruct it to take action. I do not think that makes sense. We have talked already about the fact that the Secretary of State cannot be an expert in everything. The Secretary of State cannot necessarily know the inner workings of Snapchat, Strava, TikTok and whatever other new platforms emerge. It seems like an unnecessary hurdle to stop Ofcom taking that action on its own, when it is the expert. The Minister is likely to say that the Secretary of State will say, “Yes, this is definitely a problem and I will easily instruct you to do this”—

Chris Philp (Conservative, Croydon South)

rose—

Kirsty Blackman (Scottish National Party, Aberdeen North)

The Minister will get the chance to make a proper speech in which he can respond.

It could be that the process is different from the one I see from reading the Bill. The Minister’s clarifications will be helpful to allow everyone to understand how the process is supposed to work, what powers Ofcom is supposed to have and whether it will have to wait for an instruction from the Secretary of State, which is what it looks like. That is why proposed new clause 10 is so important, because it would allow action to be taken to alert people to safety concerns. I am focusing mostly on that.

I appreciate that national security is also very important, but I thought I would take the opportunity to highlight specific concerns with individual platforms and to say to the Minister that we need Ofcom to be able to act and to educate the public as well as it possibly can, and to do so without having to wait for an instruction.

Chris Philp (Conservative, Croydon South)

Let me start by addressing the point that was raised by the hon. Member for Aberdeen North on Ofcom’s power to issue media literacy advice of its own volition, which is the subject of new clause 10. Under section 11 of the Communications Act 2003, Ofcom already has the power to issue media literacy guidance on issues such as Snapchat geolocation, the Strava map location functionality that I mentioned, and the other example that came up. Ofcom does not need the Secretary of State’s permission to do that, as it already has the power to do so. The power that new clause 10 would confer on Ofcom already exists.

Alex Davies-Jones (Labour, Pontypridd)

The Minister says that Ofcom can already use that existing power, so why does it not do so?

Chris Philp (Conservative, Croydon South)

That is obviously an operational matter for Ofcom. We would encourage it to do as much as possible. We encouraged it through our media literacy strategy, and it published an updated policy on media literacy in December last year. If Members feel that there are areas of media literacy in which Ofcom could do more, they will have a good opportunity to raise those questions when senior Ofcom officials next appear before the Digital, Culture, Media and Sport Committee or any other parliamentary Committee.

The key point is that the measures in new clause 10 are already in legislation, so the new clause is not necessary. The Secretary of State’s powers under clause 146 do not introduce a requirement for permission—they are two separate things. In addition to Ofcom’s existing powers to act of its own volition, the clause gives the Secretary of State powers to issue directions in certain very limited circumstances. A direction may be issued where there is a present threat—I stress the word “threat”—to the health or safety of the public or to national security, and only in relation to media literacy. We are talking about extremely narrowly defined powers.

Kirsty Blackman (Scottish National Party, Aberdeen North)

The Minister said “a present threat”, but the clause says “present a threat”. The two mean different things. To clarify, could he confirm that he means “present a threat”?

Chris Philp (Conservative, Croydon South)

The hon. Lady is quite right to correct me. I do mean “present a threat”, as it is written in the Bill—I apologise for inadvertently transposing the words.

Is it reasonable that the Secretary of State has those very limited and specific powers? Why should they exist at all? Does this represent an unwarranted infringement of Ofcom’s freedom? I suppose those are the questions that the Opposition and others might ask. The Government say that, yes, it is reasonable and important, because in those particular areas—health and safety, and national security—there is information to which only the Government have access. In relation to national security, for example, information gathered by the UK intelligence community—GCHQ, the Secret Intelligence Service and MI5—is made available to the Government but not more widely. It is certainly not information that Ofcom would have access to. That is why the Secretary of State has the power to direct in those very limited circumstances.

I hope that, following that explanation, the Committee will see that new clause 10 is not necessary because it replicates an existing power, and that clause 146 is a reasonable provision.

Alex Davies-Jones (Labour, Pontypridd)

I welcome the Minister’s comments, but I am not convinced by his arguments on the powers given to the Secretary of State on issues of national security or public health and safety. Parliament can be recalled and consulted, and Members of Parliament can have their say in the Chamber on such issues. It should not be up to the Secretary of State alone to direct Ofcom and challenge its independence.

Chris Philp (Conservative, Croydon South)

I understand the shadow Minister’s point, but recalling Parliament during a recess is extremely unusual. I am trying to remember how many times it has happened in the seven years that I have been here, and I can immediately recall only one occasion. Does she think that it would be reasonable and proportionate to recall 650 MPs in recess for the purpose of issuing a media literacy directive to Ofcom?

Alex Davies-Jones (Labour, Pontypridd)

I think the Minister has just made my point for me. If he does not see this happening only in extreme circumstances where a threat is presented or there is an immediate risk to public health and safety, how many times does he envisage the power being used? How many times will the Secretary of State have the power to overrule Ofcom if the power is not to be used only in those unique situations where it would be deemed appropriate for Parliament to be recalled?

Chris Philp (Conservative, Croydon South)

It is not overruling Ofcom; it is offering a direction to Ofcom.

Alex Davies-Jones (Labour, Pontypridd)

Yes—having direct influence on a regulator, overruling its independence and taking the stance directly themselves. The Minister has made my point for me: if he does not envisage the power being used only in unique circumstances where Parliament would need to be recalled to have a say, it will be used a lot more often than he suggests.

With that in mind, the Opposition will withhold our support for clause 146, in order to progress with new clause 10. I place on record the Labour party’s distinct concerns with the clause, which we will seek to amend on Report.

Dan Carden (Labour, Liverpool, Walton)

I add my voice to the concerns that have been raised about the clause, and about the powers for the Secretary of State that are littered throughout the Bill. This comes on top of the scandals around the public appointments process that we have seen under this Government—even around the role of chair of Ofcom, which they tried to hand to a former editor of the Daily Mail, Paul Dacre. Earlier this year, Lord Grade was appointed for a four-year term. He is on £140,000-odd a year. The Secretary of State is responsible for appointing the whole board of Ofcom. I really do wonder why, on top of the power that the Government hold in the appointments process, they need the Secretary of State to have the claims to intervention that the Bill affords her.

Christina Rees (Labour/Co-operative, Neath)

Minister, do you wish to respond?

Chris Philp (Conservative, Croydon South)

I have nothing further to add.

Clause 147 - Secretary of State’s guidance

Alex Davies-Jones (Labour, Pontypridd)

It seems that our support for the clauses has run out. Clause 147 enables the Secretary of State to give guidance to Ofcom relating to its exercise of its statutory powers and functions under the Bill. It also allows the Secretary of State to give guidance to Ofcom around its functions and general powers under certain provisions of the Communications Act 2003. While we appreciate that the Secretary of State must consult Ofcom before issuing, revising or replacing guidance, we feel that this level of interference is unnecessary.

The Minister must recognise that the clause allows for an incredibly granular level of interference by the Secretary of State in the day-to-day functioning of a supposedly independent regulator. It profoundly interferes with enforcement and once again broadly undermines Ofcom’s independence. Civil society and stakeholders alike share our concerns. I must press the Minister on why this level of interference is included in the Bill—what is the precedent? We have genuine concerns that the fundamental aims of the Bill—to keep us all safe online—could easily be shifted according to the priorities of the Secretary of State of the day. We also need to ensure there is consistency in our overall approach to the Bill. Labour feels that this level of interference will cause the Bill to lack focus.

Ultimately, Ofcom, as the independent regulator, should be trusted to do what is right. The Minister must recognise how unpopular the Bill’s current approach of giving overarching powers to the Secretary of State is. I hope he will go some way to addressing our concerns, which, as I have already said, we are not alone in approaching him with. For those reasons, we cannot support clause 147 as it stands.

Chris Philp (Conservative, Croydon South)

We are introducing a new, groundbreaking regime, and we are trying to strike a balance between the need for regulatory independence of Ofcom and appropriate roles for Parliament and Government. There is a balance to strike there, particularly in an area such as this, which has not been regulated previously. It is a brand-new area, so we do not have decades of cumulated custom and practice that has built up. We are creating this from the ground up—from a blank sheet of paper.

That is why, in establishing this regime, we want to provide a facility for high-level strategic guidance to be given to Ofcom. Of course, that does not infringe on Ofcom’s day-to-day operations; it will continue to do those things itself, in taking decisions on individual enforcement matters and on the details around codes of practice. All those things, of course, remain for Ofcom.

We are very clear that guidance issued under clause 147 is strategic in nature and will not stray into the operational or organisational matters that should properly fall into the exclusive ambit of the independent regulator. There are a number of safeguards in the clause to ensure that the power is exercised in the way that I have just described and does not go too far.

First, I point to the fact that clause 147(8) simply says that

“ OFCOM must have regard to the guidance”.

That is obviously different from a hard-edged statutory obligation for it to follow the guidance in full. Of course, it does mean that Ofcom cannot ignore it completely—I should be clear about that—but it is different from a hard-edged statutory obligation.

There is also the requirement for Ofcom to be consulted, so that its opinions can be known. Of course, being consulted does not mean that the opinions will be followed, but it means that they will be sought and listened to. There are also some constraints on how frequently this strategic guidance can be revised, to ensure that it does not create regulatory uncertainty by being chopped and changed on an unduly frequent basis, which would cause confusion.

Kirsty Blackman (Scottish National Party, Aberdeen North)

I have a question about subsection (4)(b), which says that the guidance can be replaced more frequently than once every three years. I understand subsection (4)(a)—that is fine—but subsection (4)(b) says that the guidance can be changed if

“the revision or replacement is by agreement between the Secretary of State and OFCOM.”

How will those of us who are not the Secretary of State or Ofcom know that there has been an agreement that the guidance can be changed and that the Secretary of State is not just acting on their own? If the guidance is changed because of an agreement, will there be a line in the guidance that says, “The Secretary of State has agreed with Ofcom to publish this only 1.5 years after the last guidance was put out, because of these reasons”? In the interests of transparency, it would be helpful for something like that to be included in the guidance, if it was being changed outside the normal three-year structure.

Chris Philp (Conservative, Croydon South)

It is better than being in the guidance, which is non-statutory, because it is in the Bill—it is right here in front of us in the measure that the hon. Lady just referred to, clause 147(4)(b). If the Secretary of State decided to issue updated guidance in less than three years without Ofcom’s consent, that would be unlawful; that would be in breach of this statute, and it would be a very straightforward matter to get that struck down. It would be completely illegal to do that.

My expectation would be that if updated guidance was issued in less than three years, it would be accompanied by written confirmation that Ofcom had agreed. I imagine that if a future Secretary of State—I cannot imagine the current Secretary of State doing it—published guidance in less than three years without Ofcom’s consent, Ofcom would not be shy in pointing that out, but to do that would be illegal. It would be unlawful; it would be a breach of this measure in the Bill.

I hope that the points that I have just made about the safeguards in clause 147, and the assurance and clarity that I have given the Committee about the intent that guidance will be at the strategic level rather than the operational level, gives Members the assurance they need to support the clause.

Clause 148 - Annual report on the Secretary of State’s functionsClause 148

Alex Davies-Jones (Labour, Pontypridd)

I will be brief. The clause is incredibly important. It requires the Secretary of State to prepare and lay before Parliament annual reports about their performance in relation to online safety. We fully support such transparency. That is all we want—we want it to go further. That is what we have been trying to say in Committee all day. We agree in principle and therefore have not sought to amend the clause.

Chris Philp (Conservative, Croydon South)

I could not possibly add to that exceptionally eloquent description.

Clause 149 - Review

Alex Davies-Jones (Labour, Pontypridd)

As we know, the clause compels the Secretary of State to undertake a review to assess the effectiveness of the regulatory framework. The review will have to be published and laid before Parliament, which we welcome. However, we note the broad time limits on this duty. We have heard repeatedly about the challenges that delays to the Bill’s full implementation will cause, so I urge the Minister to consider that point closely. By and large, though, we absolutely support the clause, especially as the Secretary of State will be compelled to consult Ofcom and other appropriate persons when carrying out its review—something that we have called for throughout scrutiny of the Bill. We only wish that that level of collaboration had been accepted by the Minister on the other clauses. I will not waste time repeating points that I have already made. We support the clause.

Chris Philp (Conservative, Croydon South)

I welcome the shadow Minister’s support for this review clause, which is important. I will not add to her comments.

Clause 150 - Harmful communications offence

Kim Leadbeater (Labour, Batley and Spen)

I beg to move amendment 112, in clause 150, page 127, line 28, at end insert “and;

(b) physical harm that has been acquired as a consequence of receiving the content of a message sent online.”

This amendment would expand the definition of harm for the purposes of the harmful communications offence to incorporate physical harm resulting from messages received online.

Christina Rees (Labour/Co-operative, Neath)

With this it will be convenient to discuss amendment 113, in clause 150, page 127, line 28, at end insert “; or

(b) physical harm resulting from an epileptic seizure, where the seizure has been triggered by the intentional sending of flashing images to a person with epilepsy.”

Kim Leadbeater (Labour, Batley and Spen)

I move the amendment in my name and will speak to amendment 113, which is in the name of the hon. Member for Blackpool North and Cleveleys (Paul Maynard).

The amendment would put into effect Zach’s law in full. Zach, as many Members know, is an amazing, energetic and bright young boy from my constituency. I had the absolute pleasure of visiting Zach and his mum Clare at their home in Hartshead a few weeks ago. We chatted about school and his forthcoming holiday, and he even invited me to the pub. However, Zach also has epilepsy.

Disgustingly, he was trolled online a few years ago and sent flashing images by bullies, designed to trigger his condition and give him an epileptic seizure, a seizure that not only would cause him and his family great distress, but can be extremely dangerous and cause Zach significant psychological and physical harm. I know that we are all united in our disgust at such despicable actions and committed to ensuring that this type of unbelievable online bullying is against the law under the Bill.

On Second Reading, I raised the matter directly with the Minister and I am glad that he pointed to clause 150 and stated very explicitly that subsection (4) will cover the type of online harm that Zach has encountered. However, we need more than just a commitment at the Dispatch Box by the Minister, or verbal reassurances, to protect Zach and the 600,000 other people in the UK with epilepsy.

The form of online harm that Zach and others with epilepsy have suffered causes more than just “serious distress”. Members know that the Bill as drafted lists

“psychological harm amounting to at least serious distress”

as a qualifying criterion of the offence. However, I believe that does not accurately and fully reflect the harm that epilepsy trolling causes, and that it leaves a significant loophole that none of us here wish to see exploited

For many people with epilepsy, the harm caused by this vicious online trolling is not only psychological but physical too. Seizures are not benign events. They can result in broken bones, concussion, bruises and cuts, and in extreme cases can be fatal. It is simply not right to argue that physical harm is intrinsically intertwined with psychological harm. They are different harms with different symptoms. While victims may experience both, that is not always the case.

Professor Sander, medical director of the Epilepsy Society and professor of neurology at University College London Hospitals NHS Foundation Trust, who is widely considered one of the world’s leading experts on epilepsy, has said:

“Everyone experiences seizures differently. Some people may be psychologically distressed by a seizure and not physically harmed. Others may be physically harmed but not psychologically distressed. This will vary from person to person, and sometimes from seizure to seizure depending on individual circumstances.”

Amendment 112 will therefore expand the scope of clause 150 and insert on the face of the Bill that an offence will also be committed under the harmful communications clause when physical harm has occurred as a consequence of receiving a message sent online with malicious intent. In practical terms, if a person with epilepsy were to receive a harmful message online that triggers their epilepsy and they subsequently fall off their chair and hit their head, that physical harm will be proof of a harmful communication offence, without the need to prove any serious psychological distress that may have been caused.

This simple but effective amendment, supported by the Epilepsy Society, will ensure that the horrific trolling that Zach and others with epilepsy have had to endure will be covered in full by the Bill. That will mean that the total impact that such trolling has on the victims is reflected beyond solely psychological distress, so there can be no ambiguity and nowhere for those responsible for sending these images and videos to hide.

I am aware that the Minister has previously pointed to the possibility of a standalone Bill—a proposal that is under discussion in the Ministry of Justice. That is all well and good, but that should not delay our action when the Bill before us is a perfectly fit legislative vehicle to end epilepsy trolling, as the Law Commission report recommended.

I thank colleagues from across the House for the work they have done on this important issue. I sincerely hope that the amendment is one instance where we can be united in this Committee. I urge the Minister to adopt amendment 112, to implement Zach’s law in full and to provide the hundreds of thousands of people across the UK living with epilepsy the legal protections they need to keep them safe online. It would give me no greater pleasure than to call at Zach’s house next time I am in the area and tell him that this is the case.

Dean Russell (Conservative, Watford)

May I praise the hon. Member for Batley and Spen for such an eloquent and heartfelt explanation of the reason why this amendment to the Bill is so important?

I have been campaigning on Zach’s law for the past nine months. I have spoken to Zach multiple times and have worked closely with my hon. Friend the Member for Stourbridge (Suzanne Webb) in engaging directly with Facebook, Twitter and the big platforms to try to get them to do something, because we should not need to have a law to stop them sending flashing images. We had got quite far a few months ago, but now that seems to have stalled, which is very frustrating.

I am stuck between my heart and my head on this amendment. My heart says we need to include the amendment right now, sort it out and get it finalised. However, my head says we have got to get it right. During the Joint Committee for Online Safety before Christmas and in the evidence sessions for this Bill, we heard that if the platforms want to use a loophole and get around things they will. I have even seen that with regard to the engagements and the promises we have had.

Kirsty Blackman (Scottish National Party, Aberdeen North)

I wonder whether the hon. Gentleman would consider a belt and braces approach as the best way forward? We could have it in the Bill and have the other legislation, in order that this will definitely protect people and companies will not be able to wriggle out of it.

Dean Russell (Conservative, Watford)

That is an excellent point. I have yet to make up my mind which way to vote if the amendment is pressed to a vote; I do not know whether this is a probing amendment. Having spoken to the Epilepsy Society and having been very close to this issue for many months, for me to feel comfortable, I want the Minister not just to say, as he has said on the Floor of the House, to me personally, in meetings and recently here, that the clause should cover epilepsy, and does seem to, and that he is very confident of that, but to give some assurance that we will change the law in some form.

Kim Leadbeater (Labour, Batley and Spen)

I am incredibly grateful for the hon. Member’s comments and contribution. I agree wholeheartedly. We need more than a belief and an intention. There is absolutely no reason why we cannot have this in black and white in the Bill. I hope he can find a way to do the right thing today and vote for the amendment.

Dean Russell (Conservative, Watford)

The phrase “Do the right thing” is at the heart of this. My hon. Friend the Member for Ipswich (Tom Hunt) presented the Flashing Images Bill yesterday. A big part of this is about justice. I am conscious that we have got to get the balance right; stopping this happening has an impact for the people who choose to do this. I am keen to hear what the Minister says. We have got to get this right. I am keen to get some assurances, which will very much sway my decision on the vote today.

Caroline Ansell (Conservative, Eastbourne)

At the risk of following my earlier voting pattern, I am also very much with the hon. Member for Batley and Spen in spirit. I could not do the subject any more justice than she has, describing this appalling online behaviour and just how damaging it is. I am a member of the all-party parliamentary group on epilepsy and have lived experience myself.

I want to highlight the comments of the Epilepsy Society, which I am sure is following our work this afternoon. It welcomes many of the introductions to the Bill, but highlights something of a legislative no man’s land. Clause 187 mentions physical harm, but does not apply to clause 150. Clause 150 only covers psychological harm when, as we have heard described, many seizures result in physical harm and some of that is very serious. I know the Minister is equally committed to see this measure come about and recognises the points we have demonstrated. The hon. Lady is right that we are united. I suspect the only point on which there might be some difference is around timing. I will be looking to support the introduction and the honouring in full of Zach’s law before the Bill is passed. There are many other stages.

My understanding is that many others wish to contribute, not least the Ministry of Justice. My hope, and my request to the Minister, is that those expert stakeholder voices will be part of the drafting, should it not be the case that supporting the amendment presented today is the very best and strongest way forward. I want to see recognition in law.

Chris Philp (Conservative, Croydon South)

Amendment 112 is clearly very important. As my hon. Friend the Member for Watford pointed out, I have already said that I believe that clause 150 goes a long way to address the various issues that have been raised. Since my hon. Friends the Members for Eastbourne and for Watford, and the hon. Member for Batley and Spen have been raising this issue—my hon. Friends have been lobbying me on this issue persistently and frequently, behind closed doors as well as publicly, and the hon. Member for Batley and Spen has been campaigning on this publicly with great tenacity and verve—the Government and the MOJ have been further considering the Law Commission’s recommendations, which I referenced on Second Reading. Subsequent to Second Reading and the lobbying by the three Members who have just spoken—the hon. Member for Batley and Spen, and my hon. Friends the Members for Watford and for Eastbourne—I can now announce to the Committee that the Government have decided to enact the Law Commission’s recommendations, so there will be a new and separate standalone offence that is specific to epilepsy for the very first time. I can firmly commit to that and announce it today.

The question then arises which legislative vehicle the offence will go in. I am aware of the private Member’s Bill, but it will take a very long time and we probably would not want to rely on it, so I am in the process of getting cross-Government agreement on which legislative vehicle will be used. I do not want to say any more about that now, because it is still subject to collective agreement, but I am expecting to come back to the House on Report and confirm which Bill the measure will go in.

Kim Leadbeater (Labour, Batley and Spen)

I genuinely appreciate the Minister’s comments, but why would we spend more time doing other pieces of legislation when we can do it right here and right now? The amendment will solve the problem without causing any more pain or suffering over a long period of time.

Chris Philp (Conservative, Croydon South)

One of the pieces of legislation that could be used is this Bill, because it is in scope. If the hon. Lady can bear with me until Report, I will say more about the specific legislative vehicle that we propose to use.

On the precise wording to be used, I will make a couple of points about the amendments that have been tabled—I think amendment 113 is not being moved, but I will speak to it anyway. Amendment 112, which was tabled by the hon. Member for Batley and Spen, talks about bringing physical harm in general into the scope of clause 150. Of course, that goes far beyond epilepsy trolling, because it would also bring into scope the existing offence of assisting or encouraging suicide, so there would be duplicative law: there would be the existing offence of assisting or encouraging suicide and the new offence, because a communication that encouraged physical harm would do the same thing.

If we included all physical harm, it would duplicate the proposed offence of assisting or encouraging self-harm that is being worked on by the Ministry of Justice and the Law Commission. It would also duplicate offences under the Offences Against the Person Act 1861, because if a communication caused one person to injure another, there would be duplication between the offence that will be created by clause 150 and the existing offence. Clearly, we cannot have two offences that criminalise the same behaviour. To the point made by the hon. Member for Aberdeen North, it would not be right to create two epilepsy trolling offences. We just need one, but it needs to be right.

Kirsty Blackman (Scottish National Party, Aberdeen North)

Will the Minister give way?

Chris Philp (Conservative, Croydon South)

In a second.

The physical harm extension goes way beyond the epilepsy point, which is why I do not think that that would be the right way to do it, although the Government have accepted that we will do it and need to do it, but by a different mechanism.

I was about to speak to amendment 113, the drafting of which specifically mentions epilepsy and which was tabled by my hon. Friend the Member for Blackpool North and Cleveleys (Paul Maynard), but was the hon. Lady’s question about the previous point?

Kirsty Blackman (Scottish National Party, Aberdeen North)

My question was about the announcement that the Minister is hoping to make on Report. I appreciate that he has committed to introduce the new offence, which is great. If the Bill is to be the legislative vehicle, does he expect to amend it on Report, or does he expect that that will have to wait until the amendment goes through the Lords?

Chris Philp (Conservative, Croydon South)

That is a good question, and it ties into my next point. Clearly, amendment 113 is designed to create a two-sentence epilepsy trolling offence. When trying to create a brand-new offence—in this case, epilepsy trolling—it is unlikely that two sentences’ worth of drafting will do the trick, because a number of questions need to be addressed. For example, the drafting will need to consider what level of harm should be covered and exactly what penalty would be appropriate. If it was in clause 150, the penalty would be two years, but it might be higher or lower, which needs to be addressed. The precise definitions of the various terms need to be carefully defined as well, including “epilepsy” and “epileptic seizures” in amendment 113, which was tabled by my hon. Friend the Member for Blackpool North and Cleveleys. We need to get proper drafting.

My hon. Friend the Member for Eastbourne mentioned that the Epilepsy Society had some thoughts on the drafting. I know that my colleagues in the Ministry of Justice and, I am sure, the office of the parliamentary counsel, would be keen to work with experts from the Epilepsy Society to ensure that the drafting is correct. Report will likely be before summer recess—it is not confirmed, but I am hoping it will be—and getting the drafting nailed down that quickly would be challenging.

I hope that, in a slightly indirect way, that answers the question. We do not have collective agreement about the precise legislative vehicle to use; however, I hope it addresses the questions about how the timing and the choreography could work.

Kim Leadbeater (Labour, Batley and Spen)

We have talked a lot about the Epilepsy Society this afternoon, and quite rightly too, as they are the experts in this field. My understanding is that it is perfectly happy with the language in this amendment—

Chris Philp (Conservative, Croydon South)

Which one?

Kim Leadbeater (Labour, Batley and Spen)

Amendment 112. I think that the Epilepsy Society feels that this would be covered. I am also confused, because the Minister said previously that it was his belief and intention that this clause would cover epilepsy trolling, but he is now acknowledging that it does not. Why would we not, therefore, just accept the amendment that covers it and save everybody a lot of time?

Chris Philp (Conservative, Croydon South)

Representations have been made by the three Members here that epilepsy deserves its own stand-alone offence, and the Government have just agreed to do that, so take that as a win. On why we would not just accept amendment 112, it may well cover epilepsy, and may well cover it to the satisfaction of the Epilepsy Society, but it also, probably inadvertently, does a lot more than that. It creates a duplication with the offence of assisting or encouraging suicide.

Kim Leadbeater (Labour, Batley and Spen)

Surely that is almost a bonus?

Chris Philp (Conservative, Croydon South)

No, it is not a bonus, because we cannot have two different laws that criminalise the same thing. We want to have laws that are, essentially, mutually exclusive. If a person commits a particular act, it should be clear which Act the offence is being committed under. Imagine that there were two different offences for the same act with different sentences—one is two years and one is 10 years. Which sentence does the judge then apply? We do not want to have law that overlaps, where the same act is basically a clear offence under two different laws. Just by using the term “physical harm”, amendment 112 creates that. I accept that it would cover epilepsy, but it would also cover a whole load of other things, which would then create duplication.

That is why the right way to do this is essentially through a better drafted version of amendment 113, which specifically targets epilepsy. However, it should be done with drafting that has been done properly—with respect to my hon. Friend the Member for Blackpool North and Cleveleys, who drafted the amendment—with definitions that are done properly, and so on. That is what we want to do.

Dean Russell (Conservative, Watford)

Having been involved on this Bill for quite a while now and having met Zach, I know the concerns that the Epilepsy Society have had. For me, we just need the Minister to tell us, which I think he has, that this will become law, whatever the vehicle for that is. If we know that this will be an offence by the end of this year—hopefully by summer, if not sooner—so that people cannot send flashing images to people with epilepsy, like Zach, then I will feel comfortable in not backing the amendment, on the premise that the Government will do something, moving forward. Am I correct in that understanding?

Chris Philp (Conservative, Croydon South)

Yes. Just to be clear, in no world will a new law pass by the summer recess. However, I can say that the Government are committed, unequivocally, to there being a new offence in law that will criminalise epilepsy trolling specifically. That commitment is categoric. The only matter on which I need to come back to the House, which I will try to do on Report, is to confirm specifically which Bill that offence will go in. The commitment to legislate is made unequivocally today.

Caroline Ansell (Conservative, Eastbourne)

I welcome the Minister’s announcement and that commitment. I particularly welcome that the new offence will have epilepsy in the title. People who seek out those who may be triggered and have seizures to cause this harm use all sorts of tags, organisations and individuals to deliberately and specifically target those who suffer from epilepsy. It is therefore wholly right that this new offence, whether in this Bill or another, cites epilepsy, because those who would seek to do harm know it and call it that.

I have not had the privilege of meeting Zach; however, thanks to this online world, which we are experiencing through this legislation as the wild west, I was able to see the most beautiful tribute interview he did with his mum. He said that if the change were to be made and offence were to be recognised, “we win.” He is so right that we all win.

Chris Philp (Conservative, Croydon South)

My hon. Friend makes an extremely powerful point that is incapable of being improved upon.

Kim Leadbeater (Labour, Batley and Spen)

rose—

Chris Philp (Conservative, Croydon South)

Or perhaps it is.

Kim Leadbeater (Labour, Batley and Spen)

It is wonderful that we have such consensus on this issue. I am grateful to colleagues for that. I am very concerned about the pressures on parliamentary time, and the fact that we are kicking this issue down the road again. We could take action today to get the process moving. That is what Zach and his family want and what other people who have been subjected to this hideous bullying want. Without a firm timeframe for another way of getting this done, I am struggling to understand why we cannot do this today.

Chris Philp (Conservative, Croydon South)

The progress that the campaign has made, with the clear commitment from the Government that we are going to legislate for a specific epilepsy trolling offence, is a huge step forward. I entirely understand the hon. Lady’s impatience. I have tried to be as forthcoming as I can be about likely times, in answer to the question from the hon. Member for Aberdeen North, within the constraints of what is currently collectively agreed, beyond which I cannot step.

Amendment 112 will sort out the epilepsy, but unfortunately it will create duplicative criminal law. We cannot let our understandable sense of urgency end up creating a slightly dysfunctional criminal statute book. There is a path that is as clear as it reasonably can be. Members of the Committee will probably have inferred the plan from what I said earlier. This is a huge step forward. I suggest that we bank the win and get on with implementing it.

Dean Russell (Conservative, Watford)

I appreciate that there will be differences of opinion, but I feel that Zach should be smiling today whatever the outcome—if there is a vote, or if this is a probing amendment. When I have chatted about this previously over many months, it has been a real challenge. The Minister quite rightly said that the Bill already covered epilepsy. I felt that to be true. This is a firming up of the agreement we had. This is the first time I have heard this officially in any form. My message to Zach and the Epilepsy Society, who may well be watching the Committee, is that I hope they will see this as a win. With my head and my heart together, I feel that it is a win, but I forewarn the Minister that I will continue to be like a dog with a bone and make sure that those promises are delivered upon.

Chris Philp (Conservative, Croydon South)

I think that is probably a good place to leave my comments. I can offer public testimony of my hon. Friend’s tenacity in pursuing this issue.

I ask the hon. Member for Batley and Spen to withdraw the amendment. I have given the reasons why: because it would create duplicative criminal law. I have been clear about the path forward, so I hope that on that basis we can work together to get this legislated for as a new offence, which is what she, her constituent and my hon. Friends the Members for Watford and for Eastbourne and others have been calling for.

Kim Leadbeater (Labour, Batley and Spen)

I appreciate the Minister’s comments and the support from across the House. I would like to the push the amendment to a vote.

Christina Rees (Labour/Co-operative, Neath)

Amendment 113 was tabled by Paul Maynard, who is not on the Committee. Does any Member wish to move the amendment?

Christina Rees (Labour/Co-operative, Neath)

With this it will be convenient to discuss the following:

Clauses 151 to 155 stand part.

Clause 157 stand part.

Barbara Keeley (Labour, Worsley and Eccles South)

Part 10 of the Bill sets out three new offences involving harmful, false or threatening communications. Clause 156 includes a new offence on cyber-flashing, to which my hon. Friend the Member for Pontypridd will speak shortly.

For many years, charities have been calling for an update to the offences included in the Malicious Communications Act 1998 and the Communications Act 2003. Back in 2018, the Law Commission pointed out that using the criminal law to deal with harmful online conduct was hindered by several factors, including limited law enforcement capacity to pursue the scale of abusive communications, what the commission called a “persistent cultural tolerance” of online abuse, and difficulties in striking a balance between protecting people from harm and maintaining rights of freedom of expression—a debate that we keep coming to in Committee and one that is still raging today. Reform of the legislation governing harmful online communications is welcome—that is the first thing to say—but the points laid out by the Law Commission in 2018 still require attention if the new offences are to result in the reduction of harm.

My hon. Friend the Member for Batley and Spen spoke about the limited definition of harm, which relates to psychological harm but does not protect against all harms resulting from messages received online, including those that are physical. We also heard from the hon. Member for Ochil and South Perthshire about the importance of including an offence of encouraging or assisting self-harm, which we debated last week with schedule 7. I hope that the Minister will continue to upgrade the merits of new clause 36 when the time comes to vote on it.

Those are important improvements about what should constitute an offence, but we share the concerns of the sector about the extent to which the new offences will result in prosecution. The threshold for committing one of the offences in clause 150 is high. When someone sends the message, there must be

“a real and substantial risk that it would cause harm to a likely audience”,

and they must have

“no reasonable excuse for sending the message.”

The first problem is that the threshold of having to prove the intention to cause distress is an evidential threshold. Finding evidence to prove intent is notoriously difficult. Professor Clare McGlynn’s oral evidence to the Committee was clear:

“We know from the offence of non-consensual sending of sexual images that it is that threshold that limits prosecutions, but we are repeating that mistake here with this offence.”

Professor McGlynn highlighted the story of Gaia Pope. With your permission, Ms Rees, I will make brief reference to it, in citing the evidence given to the Committee. In the past few weeks, it has emerged that shortly before Gaia Pope went missing, she was sent indecent images through Facebook, which triggered post-traumatic stress disorder from a previous rape. Professor McGlynn said:

“We do not know why that man sent her those images, and I guess my question would be: does it actually matter why he sent them? Unfortunately, the Bill says that why he sent them does matter, despite the harm it caused, because it would only be a criminal offence if it could be proved that he sent them with the intention of causing distress or for sexual gratification and being reckless about causing distress.”––[Official Report, Online Safety Public Bill Committee, 24 May 2022; c. 58, Q105.]

The communications offences should be grounded upon consent rather than the motivation of the perpetrator. That is a clear omission in the Bill, which my hon. Friend the Member for Pontypridd will speak more about in relation to our amendments 41 and 42 to clause 156. The Government must act or risk missing a critical opportunity to tackle the harms resulting from communications offences.

We then come to the problem of the “reasonable excuse” defence and the “public interest” defence. Clause 150(5) sets out that the court must consider

“whether the message is, or is intended to be, a contribution to a matter of public interest”.

The wording in the clause states that this should not “determine the point”. If that is the case, why does the provision exist? Does the Minister recognise that there is a risk of the provision being abused? In a response to a question from the hon. Member for Aberdeen North, the Minister has previously said that:

“Clause 150…does not give a get-out-of-jail-free card”.––[Official Report, Online Safety Public Bill Committee, 7 June 2022; c. 275.]

Could he lay out what the purpose of this “matter of public interest” defence is? Combined with the reasonable excuse defence in subsection (1), the provisions risk sending the wrong message when it comes to balancing harms, particularly those experienced by women, of which we have already heard some awful examples.

There is a difference in the threshold of harm between clause 150, on harmful communications offences, and clause 151, on false communications offences. To constitute a false communications offence, the message sender must have

“intended the message, or the information in it, to cause non-trivial psychological or physical harm to a likely audience”.

To constitute a harmful communications offence, the message sender must have

“intended to cause harm to a likely audience”

and there must have been

“a real and substantial risk that it would cause harm to a likely audience”.

Will the Minister set out the Government’s reasoning for that distinction? We need to get these clauses right because people have been let down by inadequate legislation and enforcement on harmful online communications offences for far too long.

Chris Philp (Conservative, Croydon South)

Let me start by saying that many of these clauses have been developed in careful consultation with the Law Commission, which has taken a great deal of time to research and develop policy in this area. It is obviously quite a delicate area, and it is important to make sure that we get it right.

The Law Commission is the expert in this kind of thing, and it is right that the Government commissioned it, some years ago, to work on these provisions, and it is right that, by and large, we follow its expert advice in framing these offences, unless there is a very good reason not to. That is what we have done—we have followed the Law Commission’s advice, as we would be expected to do. The clauses replace previous offences—for example, those in the Malicious Communications Act 1998—and update and improve those provisions in the form we see them in the Bill.

The shadow Minister, the hon. Member for Worsley and Eccles South, asked a number of questions about the drafting of the clauses and the thresholds that have to be met for an offence to be committed. We are trying to strike a balance between criminalising communications that deserve to be criminalised and not criminalising communications that people would consider should fall below the criminal threshold. There is obviously a balance to strike in doing that. We do not want to infringe free speech by going too far and having legitimate criticism and debate being subject to criminal sanctions. There is a balance to strike here between, on the one hand, public protection and where the criminal law sits versus, on the other hand, free speech and people expressing themselves. That is why clause 150 is constructed as it is, on the advice of the Law Commission.

As the hon. Member set out, the offence is committed only where there is a “real and substantial risk” that the likely audience would suffer harm. Harm is defined as

“psychological harm amounting to at least serious distress.”

Serious distress is quite a high threshold—it is significant thing, not something trivial. It is important to make that clear.

The second limb is that there is an intention to cause harm. Intention can in some circumstances be difficult to prove, but there are also acts that are so obviously malicious that there can be no conceivable motivation or intention other than to cause harm, where the communication is so obviously malfeasant. In those cases, establishing intent is not too difficult.

In a number of specific areas, such as intimate image abuse, my right hon. Friend the Member for Basingstoke and others have powerfully suggested that establishing intent is an unreasonably high threshold, and that the bar should be set simply at consent. For the intimate image abuse offence, the bar is set at the consent level, not at intent. That is being worked through by the Law Commission and the Ministry of Justice, and I hope that it will be brought forward as soon as possible, in the same way as the epilepsy trolling offence that we discussed a short while ago. That work on intimate image abuse is under way, and consent, not intent, is the test.

For the generality of communications—the clause covers any communications; it is incredibly broad in scope—it is reasonable to have the intent test to avoid criminalising what people would consider to be an exercise of free speech. That is a balance that we have tried to strike. The intention behind the appalling communications that we have heard in evidence and elsewhere is clear: it is in inconceivable that there was any other motivation or intention than to cause harm.

There are some defences—well, not defences, but conditions to be met—in clause 150(1)(c). The person must have “no reasonable excuse”. Subsection (5) makes it clear that

“In deciding whether a person has a reasonable excuse…one of the factors that a court must consider (if it is relevant in a particular case) is whether the message is, or is intended to be, a contribution to a matter of public interest (but that does not determine the point)”

of whether there is a reasonable excuse—it simply has to be taken into account by the court and balanced against the other considerations. That qualification has been put in for reasons of free speech.

There is a delicate balance to strike between criminalising what should be criminal and, at the same time, allowing reasonable free speech. There is a line to draw, and that is not easy, but I hope that, through my comments and the drafting of the clause, the Committee will see that that line has been drawn and a balance struck in a carefully calibrated way. I acknowledge that the matter is not straightforward, but we have addressed it with advice from the Law Commission, which is expert in this area. I commend clause 150 to the Committee.

The other clauses in this group are a little less contentious. Clause 151 sets out a new false communication offence, and I think it is pretty self-explanatory as drafted. The threatening communications offence in clause 152 is also fairly self-explanatory—the terms are pretty clear. Clause 153 contains interpretative provisions. Clause 154 sets out the extra-territorial application, and Clause 155 sets out the liability of corporate officers. Clause 157 repeals some of the old offences that the new provisions replace.

Those clauses—apart from clause 150—are all relatively straightforward. I hope that, in following the Law Commission’s advice, we have struck a carefully calibrated balance in the right place.

Barbara Keeley (Labour, Worsley and Eccles South)

I would like to take the Minister back to the question I asked about the public interest defence. There is a great deal of concern that a lot of the overlaying elements create loopholes. He did not answer specifically the question of the public interest defence, which, combined with the reasonable excuse defence, sends the wrong message.

Chris Philp (Conservative, Croydon South)

The two work together. On the reasonable excuse condition, for the offence to have been committed, it has to be established that there was no reasonable excuse. The matter of public interest condition—I think the hon. Lady is referring to subsection (5)—simply illustrates one of the ways in which a reasonable excuse can be established, but, as I said in my remarks, it is not determinative. It does not mean that someone can say, “There is public interest in what I am saying,” and they automatically have a reasonable excuse—it does not work automatically like that. That is why in brackets at the end of subsection (5) it says

“but that does not determine the point”.

That means that if a public interest argument was mounted, a magistrate or a jury, in deciding whether the condition in subsection (1)(c)—the “no reasonable excuse” condition—had been met, would balance the public interest argument, but it would not be determinative. A balancing exercise would be performed. I hope that provides some clarity about the way that will operate in practice.

Barbara Keeley (Labour, Worsley and Eccles South)

That was about as clear as mud, actually, but let us leave it there.

Clause 156 - Sending etc photograph or film of genitals

Alex Davies-Jones (Labour, Pontypridd)

I beg to move amendment 41, in clause 156, page 131, line 15, at end insert—

“(za) B has not consented for A to share the photograph or film with B, or”.

This amendment makes it an offence to send an image of genitals to another person if the recipient has not given consent to receive the image.

Christina Rees (Labour/Co-operative, Neath)

With this it will be convenient to discuss amendment 42, in clause 156, page 131, line 20, at end insert—

“(1A) A person consents if the person agrees by choice, and has the freedom and capacity to make that choice.”

This amendment is linked to Amendment 41.

Alex Davies-Jones (Labour, Pontypridd)

With your permission, Ms Rees, I will also speak to clause stand part.

Labour welcomes the clause. We see it as a positive step forward that the Government have committed to creating a new offence in certain circumstances where sending a photograph or film of a person’s genitals to another person will cause distress or humiliation. However, the Government have missed a huge opportunity to accurately capture the problems caused by sharing intimate images online. I will come to that shortly in addressing amendments 41 and 42.

We know that the act of sending unsolicited genital images—cyber-flashing, or sending dick pics—is a huge problem here in the UK. Research from Bumble has shown how disproportionally the issue affects young women. The statistics are shocking and speak for themselves. A whopping 48% of millennial women said that they had been sent an unsolicited sexual image in the last year alone. I must pay tribute to the right hon. Member for Basingstoke, who we all know shared her own experiences of cyber-flashing relatively recently. She is not alone—not in this House or in the country.

I have my own experiences, as do friends, colleagues and even my staff members, and we all share the same concerns about the prevalence of cyber-flashing. The Minister does not need to be reminded of it; he knows of the extent of the issues. We heard compelling evidence only a few weeks ago from Professor Clare McGlynn and Nima Elmi from Bumble, among others.

Labour firmly believes, as Professor McGlynn has outlined, that cyber-flashing is problematic because it is non-consensual conduct of a sexual nature. Distributing these images is not in and of itself wrong, but doing so without the consent of the recipient is. The non-consensual act breaches women’s rights to sexual autonomy, to be treated with dignity and to be free from sexual violence, regardless of the motive of the perpetrator.

We know that men’s motivations for cyber-flashing are varied and overlapping. They include misogyny, causing distress, sexual gratification, humour, boosting status among peers, sexual intimidation, and transactional motivations. Yet there is no evidence that the harms experienced by women are worse when offenders have the specific motivations identified in motive-based proposals, such as causing distress.

For example, a woman may be sent unsolicited penis images while on public transport, making her feel threatened and fearful for her safety, regardless of whether the sender intended to cause her alarm or was simply trying to impress his friends as a bit of banter. That is why the consent approach really is crucial, as I will now discuss in relation to amendments 41 and 42.

Amendment 41 would make it an offence to send an image of genitals to another person if the recipient has not given consent to receive that image. Labour recognises that there are two main options when drafting a new cyber-flashing criminal offence. The first is what we are trying to achieve with these amendments—a comprehensive consent-based offence requiring proof of non-consent. The alternative, as currently proposed by the Law Commission, is far too limited. It offers a motive-based offence, which applies only on proof of specific motives on the part of the offender, such as to cause distress, alarm or humiliation, to get sexual gratification, or to cause distress by being reckless. This is hugely problematic for women and girls across the country, and the Minister must recognise the message this sends to them.

Proving a motive behind an offence as simple as merely sending a photograph is nigh on impossible. If we really want to see systemic change in attitudes to women and girls, we fundamentally should not be creating laws that place the burden on the victim. A consent-based offence, as in our amendments, covers all forms of cyber-flashing, regardless of the motives of the sender. Motive requirements create an unjustified hierarchy of abuses and victims, and they do not reflect victims’ experiences. Requiring proof of specific motives will make investigations and prosecutions more difficult.

We know from police and victims that investigations and prosecutions for sharing sexual images without consent, such as revenge porn, are not taken forward due to similar motive requirements. How, therefore, can the Minister think that the provisions in the Bill related to cyber-flashing go far enough? Will they actually create change? I mentioned on Second Reading our genuine concerns about the levels of misogyny that have become far too normalised across our communities and within our society as a whole.

The consent-based offence provides a much better foundation for education and prevention projects. It sends the message that all sexual activity should be grounded in consent. It better supports education about online activities, with a focus on consent-based practices, and makes clear that any taking or sharing of sexual images without consent is wrong, harmful and criminal. Those are all positives.

The stakeholders are calling for a consent-based approach. The Opposition want the same. Even the Minister’s own Back Benchers can see that the Bill fails to capture and address the real harms women and girls face online. The Minister can likely sense my exasperation. It comes from a place of genuine frustration. I cannot understand how there has not been any movement on this from the Government side.

My final point—and indeed plea—is to urge the Minister to consider what is going on internationally on this issue. He will know that a consent-based cyber-flashing offence has been adopted in Texas and is being debated in other US states. Consent is easily obtained and criminal charges easily avoided. It is important to remember that avoiding being charged with a criminal offence is straightforward. All the sender needs to do is ask, “Would you like to see a picture of my genitals?” It is as simple as that. I am sure even the Minister can agree on that point. I urge him to genuinely consider amendments 41 and 42. There has been no movement from the Minister and no concessions thus far as we have scrutinised the Bill, but he must know that the Bill is far from perfect in its current form.

Kirsty Blackman (Scottish National Party, Aberdeen North)

I would like to make a couple of comments. The shadow Minister mentioned education and prevention projects, which are key. In Scotland, our kids’ sex, health and relationship education in schools teaches consent from the earliest possible age. That is vital. We have a generation of men who think it is okay to send these images and not seek consent. As the shadow Minister said, the problem is everywhere. So many women have received images that they had no desire to see. They did not ask for them, and they did not consent to receive them, but they get them.

Requiring someone to prove the intent behind the offence is just impossible. It is so unworkable, and that makes it really difficult. This is yet another issue that makes it clear that we need to have reference to violence against women and girls on the face of the Bill. If that were included, we would not be making such a passionate case here. We would already have a code of conduct and assessments that have to take place on the basis of the specific harm to women and girls from such offences. We would not be making the case so forcefully because it would already be covered.

I wish the Minister would take on board how difficult it is for women and girls online, how much of an issue this specific action causes and how much pain and suffering it causes. It would great if the Minister could consider moving somewhat on this issue in order to protect women and girls.

Maria Miller (Conservative, Basingstoke)

I want to make sure that the record is clear that while I did receive a dick pic, I am not a millennial. That shoes how widespread this problem is. My children would want that on the record.

Research done by YouGov showed that half of millennial women have been sent a photo of a penis, and that nine in 10 women who have ever received such a picture did not want to have it sent to them. To anybody who is trying to—I do not feel anybody today is—advocate that this is a small issue or a minority problem, the data suggest that it is not.

For the record, I think the reason I was sent that picture was not sexual at all. I think it was intimidatory. I was sitting in a train carriage on my way into Parliament on a hot day, and I think it was sent as intimidation because I could not leave that carriage and I had, in error, left my AirDrop on. Okay, that was my fault, but let us not victim blame.

I very much welcome the Minister’s approach, because he is the first person to take forward a series of new offences that are needed to clarify the law as it affects people in this area. As he was talking, I was reflecting on his use of the word “clarity”, and I think he is absolutely right. He is rightly looking to the Law Commission as the expert for how we interpret and how we get the most effective law in place.

Although we are not talking about the intimate image abuse recommendations in this part of the Bill, I draw to the Committee’s attention that I, and others, will have received an email from the Law Commission today setting out that it will bring forward its recommendations next month. I hope that that means that the Minister will bring forward something concrete to us about those particular offences in the coming weeks. He is right that when it comes to cyber-flashing, we need to get it right. We need to make sure that we follow the experts. The Law Commission was clear when it undertook its review that the current law does not adequately address these issues. I was pleased when it made that recommendation.

A great many people have looked at these issues, and I pay tribute to each and every one of them, though they come to slightly different conclusions about how we interpret the Law Commission’s recommendations and how we move forward. Professor Clare McGlynn is an expert. Bumble has done work on this; my hon. Friend the Member for Brecon and Radnorshire (Fay Jones) has done a great deal of work too, and I recognise her contribution.

The offence is particularly pernicious because it is as prevalent as indecent exposure. It is right that the offence is recognised in the Sex Offenders Act 2003 as a result. As the hon. Member for Pontypridd said, it is another form of gendered crime online. On the evidence of harm that it causes, she referenced the evidence that we got from Professor McGlynn about Gaia Pope. That was particularly concerning. I do not think any of us in the Committee would argue that this is not the most serious of offences, and I commend the Minister for bringing forward a serious set of recommendations to tackle it.

The issue is quite specific: how we make sure we have the most effective law in place. Clause 156 amends the Sex Offenders Act and outlines that the offence is committed if somebody sends a photo or a film to another person with the intention of causing harm, distress or humiliation, or

“for the purpose of obtaining sexual gratification”

and they are reckless as to whether they cause harm, distress or humiliation. I welcome that, and I understand the Law Commission’s recommendation focusing on the perpetrator’s motives, not the victim’s consent. I have great sympathy for the argument made by the hon. Member for Pontypridd, but I understand why the Law Commission, as the expert in law, has made that decision. I wonder whether there is a way forward that the Minister might want to contemplate.

I listened to the hon. Lady’s argument—I have made a similar argument in the past—and I will repeat my question: what if the sender of an obscene picture sent it for all sorts of reasons? Maybe it was a joke. Indeed, to go back to my own personal experience, I do not think that the person in the carriage had any sexual motivations at all; he was being intimidatory.

Perhaps the Minister could look at line 19 on page 131, which addresses reckless behaviour. The idea of somebody acting with recklessness is important. At the moment, in proposed new section 66A(1)(b) of the 2003 Act, there is a tie between obtaining sexual gratification and being reckless. The Minister could find a way forward if he simply changed “and” to “or”. I do not think that my personal experience would be caught by this law at all but, as a non-millennial 58-year-old woman, I think it should be. The Minister needs to reflect on that a little.

A way forward that might adhere to what the legal experts at the Law Commission propose—carefully drawing the law so that it does not unintentionally catch people—would be to broaden the provisions slightly by putting in “or” rather than “and”, so that those who act recklessly, such as the individual who sent an image to me, are caught within the law. That would avoid shifting the debate to the issue of consent. The Minister and I have both had long meetings with the Law Commission to understand why it has taken the approach that it has.

I put that suggestion on the table for the Minister to consider between now and Report so that he can find a way forward. Cyber-flashing is at least as harmful as indecent exposure; in fact, I would argue that it is more harmful, because people can experience cyber-flashing in the privacy of their own homes, whereas it is incredibly difficult to experience indecent exposure in that way. I hope that the Minister will look at that.

This seismic change will particularly affect young people: millennials and those who are younger, whatever they are called—generation Z. As parliamentarians, we are interested not just in the law, but in how we make sure it bites. It would be helpful if the Minister explained how we can make the Bill as preventive as possible, so that we do not simply punish young people but actually start to train them to understand that they will be committing a serious offence if they send indecent images of male genitalia to others—predominantly women—without their consent, as they are clearly doing on a large scale. Will the Minister indicate whether he will have conversations with those of his colleagues who are responsible for relationship and sex education, to ensure that young people are aware of this new sex offence and that they do not inadvertently fall foul of the law?

Chris Philp (Conservative, Croydon South)

I thank the Members who have contributed to the debate. Rather like with the provisions in clause 150, which we discussed a few minutes ago, a difficult and delicate balance needs to be struck. We want to criminalise that which should be criminal, but not inadvertently criminalise that which should not be. The legal experts at the Law Commission have been studying the matter and consulting other legal experts for quite some time. As my right hon. Friend the Member for Basingstoke said in her excellent speech, their recommendations have been our starting point.

It is probably worth making one or two points about how the clause works. There are two elements of intention, set out in subsection (1). First, the act of sending has to be intentional; it cannot be done accidentally. I think that is reasonable. Secondly, as set out in subsection (1)(a), there must be an intention to cause the person who sees the image alarm, distress or intimidation.

I understand the point that establishing intent could, in some circumstances, present a higher hurdle. As we discussed in relation to clause 150, we are, separately from this, working on the intimate image abuse offence, which does not require intention to be established; it simply requires lack of consent. I was not aware, until my right hon. Friend mentioned it a few moments ago—she was ahead of me there—that the Law Commission has given a timeframe for coming back. I am not sure whether that implies it will be concomitant with Ministry of Justice agreement or whether that will have to follow, but I am very pleased to hear that there is a timeframe. Clearly, it is an adjacent area to this and it will represent substantial progress.

I understand that it can sometimes be hard to establish intention, but there will be circumstances in which the context of such an incident will often make it clear that there was an intention to cause alarm, distress or humiliation.

Alex Davies-Jones (Labour, Pontypridd)

Has the Minister ever received a dick pic?

Chris Philp (Conservative, Croydon South)

Is that a rhetorical question?

Alex Davies-Jones (Labour, Pontypridd)

No, it is a genuine question.

Chris Philp (Conservative, Croydon South)

No.

Alex Davies-Jones (Labour, Pontypridd)

So he cannot possibly know how it feels to receive one. I appreciate the comments that he is trying to make, and that this is a fine balance, but I do see this specific issue of sending a photograph or film of genitals as black and white: they are sent either with or without consent. It is as simple as that. What other circumstances could there be? Can he give me an example of when one could be sent without the intention to cause distress, harm or intimidation?

Chris Philp (Conservative, Croydon South)

It is a fair question. There might be circumstances in which somebody simply misjudges a situation—has not interpreted it correctly—and ends up committing a criminal offence; stumbling into it almost by accident. Most criminal offences require some kind of mens rea—some kind of intention to commit a criminal offence. If a person does something by accident, without intention, that does not normally constitute a criminal offence. Most criminal offences on the statute book require the person committing the offence to intend to do something bad. If we replace the word “intent” with “without consent”, the risk is that someone who does something essentially by accident will have committed a criminal offence.

I understand that the circumstances in which that might happen are probably quite limited, and the context of the incidents that the hon. Member for Pontypridd and my right hon. Friend the Member for Basingstoke have described would generally support the fact that there is a bad intention, but we have to be a little careful not accidentally to draw the line too widely. If a couple are exchanging images, do they have to consent prior to the exchange of every single image? We have to think carefully about such circumstances before amending the clause.

Maria Miller (Conservative, Basingstoke)

I have to say, just as an aside, that the Minister has huge levels of empathy, so I am sure that he can put himself into the shoes of someone who receives such an image. I am not a lawyer, but I know that there is a concept in law of acting recklessly, so if someone acts recklessly, as my hon. Friend has set out in his Bill, they can be committing a criminal offence. That is why I thought he might want to consider not having the conditional link between the two elements of subsection(1)(b), but instead having them as an either/or. If he goes back to the Law Commission’s actual recommendations, rather than the interpretation he was given by the MOJ, he will see that they set out that one of the conditions should be that defendants who are posting in this way are likely to cause harm. If somebody is acting in a way that is likely to cause harm, they would be transgressing. The Bill acknowledges that somebody can act recklessly. It is a well-known concept in law that people can be committing an offence if they act recklessly—reckless driving, for example. I wonder whether the Minister might think about that, knowing how difficult it would be to undertake what the hon. Member for Pontypridd is talking about, as it directly contravenes the Law Commission’s recommendations. I do not think what I am suggesting would contravene the Law Commission’s recommendations.

Chris Philp (Conservative, Croydon South)

I will commit to consider the clause further, as my right hon. Friend has requested. It is important to do so in the context of the Law Commission’s recommendations, but she has pointed to wording in the Law Commission’s original report that could be used to improve the drafting here. I do not want to make a firm commitment to change, but I will commit to considering whether the clause can be improved upon. My right hon. Friend referred to the “likely to cause harm” test, and asked whether recklessness as to whether someone suffers alarm, distress or humiliation could be looked at as a separate element. We need to be careful; if we sever that from sexual gratification, we need to have some other qualification on sexual gratification. We might have sexual gratification with consent, which would be fine. If we severed them, we would have to add another qualification.

It is clear that there is scope for further examination of clause 156. That does not necessarily mean it will be possible to change it, but it is worth examining it further in the light of the comments made by my right hon. Friend. The testimony we heard from witnesses, the testimony of my right hon. Friend and what we heard from the hon. Member for Pontypridd earlier do demonstrate that this is a widespread problem that is hugely distressing and intrusive and that it represents a severe violation. It does need to be dealt with properly.

We need to be cognisant of the fact that in some communities there is a culture of these kinds of pictures being freely exchanged between people who have not met or communicated before—on some dating websites, for example. We need to draft the clause in such a way that it does not inadvertently criminalise those communities—I have been approached by members of those communities who are concerned.

Alex Davies-Jones (Labour, Pontypridd)

They have consent to do that.

Chris Philp (Conservative, Croydon South)

The hon. Member for Pontypridd says from a sedentary position that they have given consent. The consent is not built into the website’s terms and conditions; it is an assumed social norm for people on those websites. We need to tread carefully and be thoughtful, to ensure that by doing more to protect one group we do not inadvertently criminalise another.

There is a case for looking at the issue again. My right hon. Friend has made the point thoughtfully and powerfully, and in a way that suggests we can stay within the confines of the Law Commission’s advice, while being more thoughtful. I will certainly undertake to go away and do that, in consultation with my right hon. Friend and others.

Nicholas Fletcher (Conservative, Don Valley)

I am pleased the Minister will go away and look at this. I am sure there are laws already in place that cover these things, but I know that this issue is very specific. An awful lot of the time, we put laws in place, but we could help an awful lot of people through education, although the last thing we want to do is victim blame. The Government could work with companies that provide devices and have those issued with the airdrop in contacts-only mode, as opposed to being open to everybody. That would stop an awful lot of people getting messages that they should not be receiving in the first place.

Chris Philp (Conservative, Croydon South)

My hon. Friend makes a very powerful and important point. Hopefully, people listening to our proceedings will hear that, as well as those working on media literacy—principally, Ofcom and the Government, through their media literacy strategy. We have had a couple of specific tips that have come out of today’s debate. My right hon. Friend the Member for Basingstoke and my hon. Friend the Member for Don Valley mentioned disabling a device’s airdrop, or making it contacts-only. A point was also made about inadvertently sharing geolocations, whether through Snapchat or Strava. Those are two different but important points that the general public should be more aware of than they are.

For the time being, I will resist amendments 41 and 42, but in so doing I commit myself to look further at these measures. It is worth saying—this was mentioned a short time ago—that there is nothing in law dealing with this issue, so we have been debating points of detail from around the world. Those are important points of detail, and I am in no way minimising or dismissing them, but we should recognise that, today, Parliament is introducing this offence, which does not exist at the moment. We are taking a gigantic stride forward. While it is important to ensure that we get the details right, let us not forget that a gigantic stride forward is being taken here.

Alex Davies-Jones (Labour, Pontypridd)

I wholeheartedly agree with the Minister’s comments. This is a gigantic step forward that is long overdue, and we wholeheartedly welcome the new offence being created, but, as he rightly pointed out, it is important that we get this right and that we make the measure as strong as possible so that the legislation causes direct and meaningful change.

To us, the issue is simple: “Do you want to see my genitals, yes or no?” We will push amendment 41 to the vote.

Clause 158 - Consequential amendments

Christina Rees (Labour/Co-operative, Neath)

With this it will be convenient to discuss schedule 13.

Barbara Keeley (Labour, Worsley and Eccles South)

We have argued that changes to the legislation are long overdue to protect people from the harms caused by online communications offences. The clause and schedule 13 include necessary amendments to the legislation, so we do not oppose them standing part of the Bill.

Chris Philp (Conservative, Croydon South)

The clause cross-references schedule 13 and sets out amendments to existing legislation consequential on the communications offences in part 10. Schedule 13 has a number of consequential amendments, divided broadly into two parts. It makes various changes to the Sexual Offences Act 2003, amends the Regulatory Enforcement and Sanctions Act 2008 in relation to the Malicious Communications Act 1988, and makes various other changes, all of which are consequential on the clauses we have just debated. I therefore commend clause 158 and its associated schedule 13 to the Committee.

Clause 159 - Providers that are not legal persons

Christina Rees (Labour/Co-operative, Neath)

With this it will be convenient to consider:

Government amendment 159.

Clauses 160 and 161 stand part.

That schedule 14 be the Fourteenth schedule to the Bill.

Alex Davies-Jones (Labour, Pontypridd)

Labour supports clause 159, because it is vital that the Bill includes provisions for Ofcom to issue a penalty notice or confirmation decision when the provider may not be a legal person in the traditional sense. We have repeatedly maintained that it is central to the success of the Bill that, once implemented, it properly and sufficiently gives Ofcom the relevant powers, autonomy and independence to properly pursue providers of regulated services and their wrongdoings.

We recognise the complexity of the service providers’ business models and therefore agree that the Bill must be broad enough to ensure that penalty notices and confirmation decisions can be given, even when the provider may constitute an association, or an organisation between a group of people. Ultimately, as we have made clear, Labour will continue to support giving the regulator the tools required to keep us all safe online.

We have already raised concerns over Ofcom’s independence and the interference of and over-reliance on the Secretary of State’s powers within the Bill as it stands. However, we are in agreement on clause 159 and feel that it provides a vital tool for Ofcom to have at its disposal should the need for a penalty notice or confirmation decision arise. That is why we support the clause and have not sought to amend it.

Government amendment 159, as we know, ensures that if the provider of a service consists of two or more individuals, those individuals are jointly liable to pay a fee demanded under new schedule 2. As I will come on to in my comments on clauses 160 and 161, we welcome the provisions and clarifications around liability for fees when the provider of a service consists of two or more individuals.

As with clause 159, we welcome the clarity of provisions in the Bill that confirm actions to be taken where a group of two or more individuals act together. It is absolutely right that where two or more individuals together are the providers of a regulated service, they should be jointly and severally liable for any duty, requirement or liability to pay a fee.

We also welcome the clarification that that liability and joint responsibility will also apply in the event of a penalty notice or confirmation decision. We believe that these provisions are vital to capturing the true extent of where responsibility should lie, and we hope they will go some way to remedying the hands-off approach that service providers have managed to get away with for too long when it comes to regulation of the internet. We do, however, feel that the Government could have gone further, as we outlined in amendment 50, which we spoke to when we addressed clause 123.

Labour firmly believes that Ofcom’s ability to take action against non-compliance en masse is critical. That is why we welcome clause 160 and will not be seeking to amend it at this stage. We also fundamentally support clause 161, which contains provisions on how joint liability will operate.

We will speak to our concerns about supply chains when we debate a later clause—I believe it is new clause 13 —because it is vital that this Bill captures the challenges around supply chain failures and where responsibility lies. With that in mind, we will support clause 161, with a view to the Minister understanding our broader concerns, which we will address when we debate new clause 13.

Finally, schedule 14 establishes that decisions or notices can be given jointly to both a regulated provider and its parent company. We particularly support the confirmation that all relevant entities must be given the opportunity to make representations when Ofcom seeks to establish joint liability, including on the matters contained in the decision or notice and whether joint liability would be appropriate.

As we have made clear, we see the provisions outlined in this schedule as fundamental to Ofcom’s ability to issue truly meaningful decisions, penalties and notices to multiple parties. The fact that, in this instance, service providers will be jointly liable to comply is key to capturing the extent to which it has been possible to perpetuate harm online for so long. That is why we support the intention behind schedule 14 and have not sought to amend it.

Chris Philp (Conservative, Croydon South)

The shadow Minister has set out clearly the purpose of and intent behind these clauses, and how they work, so I do not think I will add anything. I look forward to our future debate on the new clause.

There is one point of correction that I wish to make, and it relates to a question that the hon. Member for Aberdeen North asked this morning and that is germane to amendment 159. That amendment touches on the arrangements for recouping the set-up costs that Ofcom incurs prior to the Bill receiving Royal Assent. The hon. Member for Aberdeen North asked me over what time period those costs would be collected, and I answered slightly off the cuff. Now I have had a chance to dig through the papers, I will take this opportunity to confirm exactly how that works.

To answer the question a little bit better than I did this morning, the place to go is today’s amendment paper. The relevant provisions are on page 43 of the amendment paper, in paragraph 7(5) of Government new schedule 2, which we will debate later. If we follow the drafting through—this is quite a convoluted trail to follow —it states that the cost can be recouped over a period that is not less than three years and not more than five years. I hope that gives the hon. Member for Aberdeen North a proper answer to her question from this morning, and I hope it provides clarity and points to where in the new schedule the information can be found. I wanted to take the first opportunity to clarify that point.

Beyond that, the hon. Member for Pontypridd has summarised the provisions in this group very well, and I have nothing to add to her comments.

Clause 160 - Individuals providing regulated services: liability

Clause 162 - Information offences: supplementary

Christina Rees (Labour/Co-operative, Neath)

With this it will be convenient to discuss clauses 163 to 165 stand part.

Alex Davies-Jones (Labour, Pontypridd)

Labour supports the intention behind clause 162, because we believe that only by creating specific offences will the messaging around liability and the overall message about public safety really hit home for those at the top in Silicon Valley. We welcome the clarification on exactly how Ofcom will be able to exercise these important powers, and we support the process of giving notice, confirmation decisions and subsequent penalties. We see the clause as fundamental to the Bill’s overall success, although, as the Minister will recall, we feel that the Bill could go further in addressing broader offences beyond those around information practices. However, that is a debate for another day.

In this clause, we believe that the importance and, indeed, the power of information notices is crystal clear for service providers to see, and Labour fully supports and welcomes that move. That is why we will support clause 162 and have not sought to amend it at this stage. We welcome the clarity in clause 163 around the process that applies when a person relies on a defence in an information offence. We see this clause as sitting alongside current legal precedents and are therefore happy to support it.

We fully support and welcome clause 164. We believe it is central to the entire argument around liability that the Minister knows Labour has been making for some time now. We have heard in Committee evidence sessions some truly compelling insights from people such as Frances Haugen, and we know for certain that companies are prone to covering up information that they know will be received unfavourably.

I point the Minister to one such worrying instance that occurred only last week in which Blake Lemoine, a senior software engineer in Google’s responsible AI unit, was placed on paid leave after claiming that the tech group’s chatbot had become sentient. From Lemoine’s testimonies, the conversations with the language model for dialogue applications, known informally as LaMDA, seem incredibly real. The chatbot seemingly confessed to having hunger for spiritual knowledge, as well as feelings of loneliness. Although they do not constitute an information offence per se, we can and must all recognise that if what has been said is true, those developments in the world of AI are very worrying. That is why we welcome clause 164, which will place more liability on corporate officers for information offences committed by that entity.

Although we believe the liability should go further and transparency around information captured by platforms should be broader, we welcome the impact that the clause could have, given that both an entity and corporate officer could be found guilty of an offence in certain circumstances. That sits with legal precedents elsewhere and we are happy to support it.

Finally, we welcome the clarity outlined in clause 165, which sets out how information offences apply to providers that are not legal persons according to the law under which they are formed. As Members know, subsection (2) specifies:

“Proceedings for an offence alleged to have been committed by a relevant entity must be brought against the entity in its own name”.

We agree with that approach, given the Bill’s provisions for personal liability, which we have discussed at length.

We welcome the provisions outlined in subsection (5), which provide that if the relevant entity commits an offence and the offence was committed

“with the consent or connivance of an officer”,

or can be attributed to the neglect of an officer, the officer also commits the offence. It is a welcome step indeed that the Bill captures both officer liability and, to a certain degree, group liability, in the form of partnership and unincorporated association. We are happy to support clause 165 and have not sought to make changes at this stage.

Chris Philp (Conservative, Croydon South)

Once again, the shadow Minister has described the various clauses in this group. They speak, as she said, to the important and very strong measures around information offences. It is so important that where someone fails to provide the information that Ofcom requires, not only is there a liability on the company to pay very large fines or have their service cut off, as we discussed earlier, but individuals have criminal liability as well.

Clause 162 gives further information about how information-related criminal offences operate and how criminal proceedings can be brought against a person who fails to comply with an information notice or a requirement imposed when Ofcom exercises its powers of entry and inspection. Clause 163 goes further to explain how defences to accusations of criminal offences can operate, and it is helpful to have that clearly set out.

Clause 164 allows for corporate officers of regulated providers to be found liable for offences committed by the provider under the Act. For example, corporate officers can also be found liable for information offences committed by their company. That is extremely important, because it means that senior personnel can be held liable even where they are not named by their company in an information response. That means the most senior executives will have their minds focused on making sure the information requirements are properly met.

Clause 165 provides further information about how information-related criminal offences will operate under the Bill when the regulated provider is not a legal person—when it is, for example, a partnership or an unincorporated association. I hope the clauses give the specificity and clarification required to operate the personal criminal liability, which gives the enforcement powers in the Bill such strong teeth.

Clause 166 - Extra-territorial application

Christina Rees (Labour/Co-operative, Neath)

With this it will be convenient to discuss clause 167 stand part.

Alex Davies-Jones (Labour, Pontypridd)

Labour welcomes clause 166, which specifies that references to regulated services and Ofcom’s information-gathering powers apply to services provided from outside the United Kingdom as well as to services provided from within the United Kingdom. While we recognise the challenges around internet regulation in the UK, we live in a global world, and we are pleased that the legislation has been drawn up in a way that will capture services based overseas.

We feel the Bill is lacking in its ability to regulate against content that may have originated from outside the UK. While it is welcome that regulated services based abroad will be within scope, we have concerns that that will do little to capture specific content that may not originate within the UK. We have raised these points at length in previous debates, so I will not dwell on them now, but the Minister knows that the Bill will continue to fall short when it does not capture, for example, child sexual exploitation and abuse content that was filmed and originated abroad. That is a huge loophole, which will allow harmful content to be present and to be perpetuated online well into the future. Although we support clause 166 for now, I urge the Minister to reconsider his view on how all-encompassing the current approach to content can be as he considers his Department’s strategy before Report.

Clause 167 outlines that the information offences in the Bill apply to acts done in the United Kingdom and outside the United Kingdom. We welcome its provisions, but we feel that the Government could go further. We welcome the clarification that it will be possible to prosecute information offences in any part of the UK as if they occurred there. Given the devastating pressures that our legal system already faces thanks to this Government’s cuts and shambolic approach to justice, such flexibility is crucial and a welcome step forward.

Chris Philp (Conservative, Croydon South)

Last week or the week before, we debated extensively the points about the extraterritorial application to protecting children, and I made it clear that the Bill protects people as we would wish it to.

Clause 166 relates to extraterritorial enforceability. It is important to make sure that the duties, enforceable elements and sanctions apply worldwide, reflecting the realities of the internet, and clause 166 specifies that references to regulated services in the Bill include services provided from outside the United Kingdom. That means that services based overseas must also comply, as well as those in the UK, if they reach UK users.

The clause ensures that Ofcom has effective information-gathering powers and can seek information from in-scope companies overseas for the purposes of regulating and enforcing the regime. Obviously, companies such as Facebook are firmly in scope, as hon. Members would expect. The clause makes it clear that Ofcom can request information held outside the UK and interview individuals outside the UK, if that is necessary for its investigations.

Clause 167 explains that the information-related personal criminal offences in the Bill—for example, failing to comply with Ofcom’s information notices—apply to acts done inside and outside the UK. That means that those offences can be criminally prosecuted whether the perpetrator is based in the UK or outside the UK. That will send a clear message to the large global social media firms that no matter where they may be based in the world or where their services may be provided from, we expect them to comply and the enforcement provisions in the Bill will apply to them.

Written evidence reported to the House