My Lords, Amendments 270 and 272 are in my name; I thank the noble Lord, Lord Stevenson of Balmacara, for adding his name to them. They are the least controversial amendments in this group, I think. They are really simple. Amendment 270 would require Ofcom’s research about online interests and users’ experiences of regulated services under Clause 143 to be broken down by nation, while Amendment 272 relates to Clause 147 and would require Ofcom’s transparency reports also to be broken down in a nation-specific way.
These amendments follow on from our debates on devolution in Committee. Both seek to ensure that there is analysis of users’ online experiences in the different nations of the UK, which I continue to believe is essential to ensuring that the Bill works for the whole of the UK and is both future-proofed—a word we have all used lots—and able to adapt to different developments across each of the four nations. I have three reasons why I think these things are important. The first concerns the interplay between reserved and devolved matters. The second concerns the legal differences that already exist across the UK. The third concerns the role of Ofcom.
In his much-appreciated email to me last week, the Minister rightly highlighted that internet services are a reserved matter and I absolutely do not wish to impose different standards of regulation across the UK. Regarding priority offences, I completely support the Government’s stance that service providers must treat any content as priority illegal content where it amounts to a criminal offence anywhere in the UK regardless of where that act may have taken place or where the user is. However, my amendments are not about regulation; they are about research and transparency reporting, enabling us to understand the experience across the UK and to collect data—which we have just heard, so powerfully, will be more important as we continue.
I am afraid that leaving it to Ofcom’s discretion to understand the differences in the online experiences across the four nations over time is not quite good enough. Many of the matters we are dealing with in the online safety space—such as children, justice, police and education—are devolved. Government policy-making in devolved areas will increasingly rely on data about
online behaviours, harms and outcomes. These days, I cannot imagine creating any kind of public policy without understanding the online dimension. There are areas where either the community experience and/or the policy approach is markedly different across the nations—take drug abuse, for example. No data means uninformed policy-making or flying blind, as my noble friend Lord Bethell has just said. But how easy will it be for the devolved nations to get this information if we do not specify it in the Bill?
In many of the debates, we have already heard of the legal differences across the four nations, and I am extremely grateful to the noble and learned Lord, Lord Hope of Craighead, who is not in his place, the noble Lord, Lord Stevenson of Balmacara, and the Minister for supporting my amendment last week when I could not be here. I am terribly sorry. I was sitting next to the noble Viscount, Lord Camrose, at the time. The amendment was to ensure that there is a legal definition of “freedom of expression” in the Bill that can be understood by devolved Administrations across the UK.
The more I look at this landscape, the more challenges arise. The creation of legislation around intimate abuse images is a good example. The original English legislation was focused on addressing the abusive sharing of intimate images after a relationship breakdown. It required the sharing to have been committed with the intent to cause harm, which has a very easy defence: “I did not mean to cause any harm”. The Scottish legislation, drafted slightly later, softened this to an intent to cause harm or being reckless as to whether harm was caused, which is a bit better because you do not need to prove intent. Now the English version is going to be updated in the Bill to create an offence simply by sharing, which is even better.
Other differences in legislation have been highlighted, such as on deepfakes and upskirting. On the first day of Report, the noble Baroness, Lady Kennedy of The Shaws, highlighted a difference in the way cyberflashing offences are understood in Northern Ireland. So the issue is nuanced, and the Government’s responses change as we learn about harmful behaviours in practice. Over time, we gradually see these offences refined as we learn more about how technology is used to abuse in practice. The question really is: what will such offences look like online in five years’ time? Will the user experience and government policy across the four nations be the same? I will not pretend to try to answer that, but to answer it we will need the data.
I am concerned that the unintended consequences of the Bill in the devolved Administrations have not been fully appreciated or explored. Therefore, I am proposing a belt and braces approach in the reporting regime. When we come to post-legislative scrutiny, with reports being laid before this Parliament and the devolved Administrations in Edinburgh, Cardiff and Belfast—if there is one—we will want to have the data to understand the online experiences of each nation. That is why my very little amendments are seeking to ensure that we capture this experience and that is why it is so important.
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On Ofcom—my final point—I know the Minister has every confidence in Ofcom and rightly points out that it has a strong track record of producing data that is representative of people across the UK. I agree. Ofcom already does a great deal of research which is broken down into nation-specific reporting, particularly in broadcasting, but most of this is directly in relation to its obligations under the Communications Act and the BBC charter, which contains a specific purpose:
“To reflect, represent and serve the diverse communities of all of the United Kingdom’s nations and regions and, in doing so, support the creative economy across the United Kingdom”.
From my Scottish point of view, I am arguing—and I know that the Scottish advisory committee of Ofcom would agree with me—that its research and Ofcom’s reports, such as the annual Media Nations report, are linked to the way legislation is set up and then implemented by Ofcom.
Having ensured this for broadcasting and communications, why would we not want to do this for online safety? At last Tuesday’s meeting of the Communications and Digital Committee, on which I serve, we took evidence on a huge range of subjects from my noble friend the chairman of Ofcom and Dame Melanie Dawes. The noble Lord, Lord Grade, used all the usual words to describe this Bill—“complex”, “challenging”—and pointed out that it is a new law in a novel area, but he stressed that Ofcom comes to decisions outside the political arena based on research and evidence.
My amendments just remind Ofcom that we need this research and evidence by nation. This Bill is so large, so wide-ranging, that Ofcom’s remit and functions are having to expand hugely to deliver this new regime. The noble Baroness, Lady Fox, reminded us last week that what Ofcom does comes from the legislation. It does not do things off its own bat. Ofcom already has a huge challenge on its hands with this Bill, and experience tells us that it is likely to deliver only what is specified—the “must do” bits, not the “nice to do” extras. There may be no differences in the online experiences across the nations of the UK, but the only way we can be sure is if we have the data for each nation, the transparency and all the research reporting. I urge the Minister to take my amendment seriously.