Yes, freedom of expression. That is right.
I will start where the noble Lord, Lord Clement-Jones, finished, although I want to come back and cover other things. This is a very complicated group. I do not think we can do it quickly, as each issue is important and is worth trying to take forward.
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Amendments in my name that came very late have been included here. Unfortunately, we did not have time to degroup them. I think they would have been better on their own, but they are here, and we will have the debate. Amendments 202ZA and 210A look as if they have come from a very different place, but, as the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Bennett, have said, they are a continuation of the debate we were having a couple of days ago on encryption. They are proposed as a compromise.
I hope that the end result will be that I will not move them, but that we can have an offline meeting about them to see whether there is a way forward on this. We left the debate on the powers the Bill attempts to take on encryption in a slightly unbalanced place. It is clear that, for very good and persuasive reasons, where there may be criminality happening on an encrypted service, powers will have to be available to those responsible for prosecuting that criminal activity so that they can access the necessary evidence. We do not dispute that at all.
How do you do that when it is fully encrypted and breaking the encryption raises dangers and difficulties? How do you do it if you are relying on not fully tested technological solutions which require giving powers to Ofcom to commission and operate through the companies a procedure we do not yet know will exist? It may work for indecent images but almost certainly will not work for counterterrorism. How do you do it in a way which is guided by the principle that the ability to get the data, when the material has been transmitted in an encrypted form, should not be at the expense of freedom of expression? Therefore, a technical solution looks like a possible winner. It may be in the future, but I do not believe we are there yet, but we have been promised a meeting on this topic and I am looking forward to it.
Thinking again about this and having been in receipt of further correspondence from others outside who have been watching this debate very closely, the amendments to Clauses 110 and 112 are suggested as a compromise which might get us to that point. It takes us down a slightly different route—I am not sure that this has been explored with the Bill team and therefore we should have a meeting to discuss it—of trying to dig a bit deeper into what would constitute a reasonable ground for persuading those responsible for hosting encrypted material and arguing convincingly that there is evidence to break their rule of non-interference, at least to the stage of metadata. The key here is not the content itself, but the ability to reach back to those attempting to use encrypted systems for criminal or other illegal behaviour.
In that sense, what is proposed here is a requirement for Ofcom, if it is left with Ofcom. I still believe it would be better if there were a third-party review of that on a judicial level following the RIPA proposals.
It is a suggestion which might command support in the industry by allowing for a definitional approach making sure that we are talking about proper journalistic material and allowing that to be taken as a route forward so that there would be reassurance for those who are concerned on the journalistic side that the material would not be accessed and used in a way which would be detrimental to their activity and it could be protected. I will not take it any further than that, unless others would like it. That is the purpose behind this amendment. I am sorry that it was late, and it should not really have been in this group, but it is good to have got it on the table. I hope it will feed into the discussions we are due to have.
Having said that, I will briefly go back to my noble friend Lord Bassam’s amendments. The noble Lord, Lord Clement-Jones, made a couple of the points I wanted to make, but I will reinforce them. I am particularly glad that my noble friend came, given that his throat is as bad as it is—I am sure that it is entirely due to his overenthusiastic support for his football team. No doubt he celebrated late into the night its success in getting into the Europa competition. I never use sporting metaphors, but I have to use one for my noble friend Lord Bassam.
On knives, I am pleased to see this here—we had a good response to it, and I look forward to the Minister’s response. I first came across this issue when I was relatively new in your Lordships’ House. I had a placement with the Met, over a period of time, to get to know how it worked and everything else. It was a fantastic experience that was organised well; anyone who has not done it should do it. It is a good way of learning a bit more about something that is clearly in the public consciousness at the moment.
One of my visits was to a group of young officers operating in and around Brixton. I spent three days there and experienced a riot that they had not anticipated, which was quite exciting. The main point was that we spoke a lot about knives and their role in society. The evidence I saw, in practice, was that this was a burgeoning problem that the police were not well equipped to deal with—this was five or six years ago. It was not for want of trying; it was just that the way the gang culture operated in Brixton, as I understood it, was that the responsibility for enrolling, for maintaining discipline and, subsequently, for operating a gang there was largely governed by rules well away from those recognised in civilised society. The methods of control were knives being placed into the bodies of persons who were being disciplined. The police had no way of coping with that.
Part of the problem with this, as my noble friend Lord Bassam mentioned, is the supply of very unpleasant weapons coming in, usually ordered through the dark web. Again, the police felt that they did not have the equipment, knowledge, skills or even the time to track them down. They were always chasing their tail and were never catching up—they could never keep ahead of it. A really important issue is buried in this amendment; we need to consider it more broadly and society needs to take account of it. If there is an issue within the Bill
that should be addressed, it is that. We would like it discussed and hope it will be thought about and implemented if possible.
On Amendment 268AA, I will go back to what the noble Lord, Lord Clement-Jones, said about the evidence we received in the Joint Committee—it was extraordinarily powerful, particularly that from Rio Ferdinand but also that from others who accompanied him on that occasion—about the impact that the internet was having on the health and well-being of players, particularly those affected by abuse after games. He said—I am sure that he will not mind me referring to this—that, before the internet got to the point where it is now, there was still terrible abuse in the stadiums when you were playing, but, because it did not come with you when you left the stadium, you were able to relax, go home and get away from it. But, with the internet, you see it on your timeline and in tweets, and it is sent to you by your friends—and it became impossible and 24/7. It became a real burden, and he saw the impact on younger players—we have seen plenty of evidence of that.
When we reflected in the committee as a result of that evidence, we were working with a version of the Bill that had Clause 11, on legal but harmful content. We were trying to find ways to get a better sense and balance. The committee clearly said that it did not think that legal but harmful was an appropriate way forward, but we certainly also recognised that that meant that a process would have to be in place to deal with material that is not what society wishes to see circulating and influencing the process and young people in particular. We recognised then that there was a problem with having an online safety Act that does not require companies to act on misogynous abuse or hatred being stirred up against coloured or disabled people, to give but two examples of where the gap would emerge. Although we recommended that the legal but harmful clause should be removed, we said that there had to be
“a statutory requirement on providers to have in place proportionate systems and processes to identify and mitigate reasonably foreseeable risks of harm arising from regulated activities defined under the Bill”.
We are not there yet.
Amendment 268AA in the name of my noble friend Lord Bassam gets us a little into the issues of racially aggravated behaviour, harassment and other forms of abuse, and I am very interested to hear what the Government’s response to it will be. I am not sure that we have the tools yet in the Bill, or in the terms of reference approach that has been taken, that would allow that proposal to happen, but maybe the Minister will be able to help us with this when he responds.
I will touch on other amendments in this group. I hope that we will receive a positive response to the amendment from my noble friend Lady Merron, who unfortunately cannot be with us at the moment, in relation to instances of gendered language.
The amendments proposed and spoken to by the noble Lord, Lord Clement-Jones, are important in themselves, but also play to a bigger point, particularly Amendment 201. We do not have much down on this in relation to the question of how Ofcom will relate to
other regulators, but the case he made was very persuasive. I hope that the Minister can say something about that. The idea is that we will muddle on with the existing arrangement of informal networking between very powerful regulators—each of whom will have, as the noble Lord said, sometimes conflicting rules about how things go—which can be brokered through a co-operation agreement. But it would be better if it were accompanied by a set of real powers to work together, including joint powers in cases where there are issues affecting both personal data and the impact that Ofcom will have in relation to companies’ operations. We should also recognise that there will be other regulators joining the club every year that will need to be involved and processed. Some basic understanding of the rules—maybe not in the Bill, but certainly forecast to be brought forward in a future piece of legislation—seems to be vital to give them the context with which they can begin to work together and from which we can learn the lessons that will be necessary when new powers are prepared. I am very supportive of Amendment 201, and I hope that there will be a positive thought about how we might take it forward.
The noble Lord, Lord Bethell, is not in his place so, presumably, will not speak to his Amendment 220D, which would give Ofcom powers to delegate some of its regulated powers to another body. Other similar amendments are coming up later, so maybe that point will be picked up then. However, I will put on the record, as the noble Baroness, Lady Stowell, has said on other occasions, that there are problems with simply adding other regulators into what is a very powerful statutory body, particularly if they are not, in any way, public bodies themselves. With no disrespect to those currently working in them, I think that, where are a charitable body or a private company is engaging with bodies such as Ofcom, there should be no question of statutory powers being delegated to them; that must not happen. A form of contract for particular work to be delivered under the control of the statutory body, Ofcom, is fine, but we should not be talking about coequal powers; that would be wrong.
Finally, I do not want to anticipate the Minister in introducing the amendments in his name, but we have no objections to them. I am sure that they will work exactly as he proposes and that they will be acceptable.