My Lords, I hung back in the hope that the noble and learned Lord, Lord Hope of Craighead, would speak before me, because I suspected that his remarks would help elucidate my amendments, as I believe they have. I have a large number of amendments in this group, but all of them, with one exception, work together as, effectively, a single amendment. They are Amendments 101, 102, 109, 112, 116, 121, 191 and 220. The exception is Amendment 294, to which the noble Baroness, Lady Fox of Buckley, alluded and to which I shall return in a moment.
Taking that larger group of amendments first, I can describe their effect relatively briefly. In the Bill, there are requirements on services to consider how their practices affect freedom of expression, but there is no equivalent explicit duty on the regulator, Ofcom, to have regard to freedom of expression.
These amendments, taken together, would require Ofcom to
“have special regard to freedom of expression”
within the law when designing codes of practice, writing guidance and undertaking enforcement action. They would insert a new clause requiring Ofcom to have special regard to rights to freedom of expression within the law in preparing a code of practice; they would also require Ofcom, when submitting a draft code to the Secretary of State, to submit a statement setting out it had complied with the duty imposed by that new requirement; and they would require the Secretary of State to submit that statement to Parliament when laying a draft code before Parliament. They would impose similar obligations on Ofcom and the Secretary of State when making amendments to codes that might be made later. Finally, they would have a similar effect relating to guidance issued by Ofcom.
It is so glaringly obvious that Ofcom should be under this duty that it must be a mere omission that the balancing, corresponding duty has not been placed on it that has been placed on the providers. I would hope, though experience so far in Committee does not lead me to expect, that my noble friend would accept this, and that it would pass relatively uncontroversially.
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I will say no more about it, except to make one slightly more reflective comment—and here I am very conscious of speaking in the presence of the noble and learned Lord, Lord Hope of Craighead, who is perfectly entitled to correct me if I stray. There has been a great deal of comment from the Front Bench and from other parts of the Committee about how the Bill has to balance freedom of expression with safety, and inevitably such a balance is required. But in any such balance, the scales have to be tipped in favour of freedom of expression, because freedom of expression is a human right in the European Convention on Human Rights.
It is true of course that the second part of Article 10 allows it to be mitigated in some ways, but the starting point has to be the first clause of Article 10, which states that freedom of expression stands as a fundamental human right. Every abridgement of it has to be justified individually in relation to the second part; it is not enough to say that the two are somehow
equal and that we have to find a balance that is purely prudential or that fits in with our notions of common sense or good judgment. There is a weighting in that balance, and that weighting is in favour of freedom of expression. So, I would strongly encourage noble Lords to bear that in mind, and I hope that this relatively simple proposal will find widespread acceptance.
I come now to Amendment 294, which is completely different but relates to this question of the definition of harm. As the noble Baroness, Lady Fox of Buckley, said, harm is defined very loosely and vaguely in the Bill—it is defined simply as “physical or psychological harm”, which is a self-referential definition and expands it somewhat.
I think we all understand what might be meant by “physical harm”, but, when it comes to “psychological harm”, I could understand a definition that had a basis in medical science. Perhaps the right word for such a definition would be “psychiatric harm”; I could understand that because medical science has some objective basis to it. But when one finds the words “psychological harm” being used, and when the department confirms that there is no objective basis for it, one is effectively opening the door to talking about “feelings”.
I know of course that there are genuine psychological harms which give great concern to Members of this Committee, including myself. Psychological harms that lead to eating disorders are a good example, and I understand that; I am not trying to trivialise psychological harms. This amendment is a probing amendment; it is trying to find out what the Government mean and what boundaries, if any, they set to their understanding of the term “psychological”. If there are no boundaries, it really does extend to “feelings”, because that is how the term is increasingly used, especially among the young—and that is a very loose definition.
So, in probing the Government on what they mean by “psychological harm”, I hope to have something hard and solid coming back from them that we know sets some limits to where this can take us.