My hon. Friend makes a fair point. One difficult part of our legislative journey with the Bill is to get right, in so far as we can, the balance between what the regulator should take responsibility for, what Ministers should take responsibility for and what the legislature—this Parliament—should take responsibility for. We may not have got that exactly right yet.
On my hon. Friend’s specific point, my understanding is that because Ofcom must report to Parliament in any event, it will certainly be Ofcom’s intention to report back on this. It will be quite a large slice of what Ofcom does from this point onwards, so it would be remarkable if it did not, but I think we will have to return to the points that my hon. Friend the Member for Folkestone and Hythe (Damian Collins) and others have made about the nature of parliamentary scrutiny that is then required to ensure that we are all on top of this progress as it develops.
I was talking about what I would like my hon. Friend the Minister to say when he winds up the debate. I know he will not have a huge amount of time to do so, but he might also confirm that the balancing duties in relation to freedom of speech and privacy, for example, continue to apply to the fulfilment of the safety duties in this context as well. That would be helpful.
The Government amendments in lieu do not replicate the reference to design in the safety duties themselves, but I do not see that as problematic because, as I understand it, the risks identified in the risk assessment process, which will now include design risks, feed through to and give rise to the safety duties, so that if a design risk is identified in the risk assessment, a service is required to mitigate and address it. Again, I would be grateful if the Minister confirmed that.
We should also recognise that Government amendment (b) in lieu of Lords amendment 17 and Government amendments (b) and (c) in lieu of Lords amendment 81 specifically require consideration of
“functionalities or other features of the service that affect how much children use the service”
As far as I can tell, that introduces consideration of design-related addiction—recognisable to many parents; it cannot just be me—into the assessment process. These changes reflect the reality of how online harm to children manifests itself, and the Government are to be congratulated on including them, although, as I say, the Government and, subsequently, Ofcom will need to be clear about what these new expectations mean in practical terms for a platform considering its risk assessment process and seeking to comply with its safety duties.
I now turn to the amendments dealing with the categorisation process, which are Lords amendment 391 and the Government amendments arising from it. Lords amendment 391 would allow Ofcom to designate a service as a category 1 service, with the additional expectations and responsibility that brings, if it is of a certain scale or if it has certain functionalities, rather than both being required as was the case in the original Bill. The effect of the original drafting was, in essence, that only big platforms could be category 1 platforms and that big platforms were bound to be category 1 platforms. That gave rise to two problems that, as my hon. Friend the Minister knows, we have discussed before.
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The first problem was that smaller platforms where highly harmful material was to be found, whether organically or because it was seeking refuge from the greater regulation of larger platforms, could not be made subject to a more restrictive regime. The second was that larger platforms whose operations give rise to very little concern in the context of this Bill—Wikipedia being a common example—would have to be subject to more extensive regulatory requirements than is justified by the risk they really present. Lords amendment 391 in the name of my right hon. Friend the noble Baroness Morgan seeks to resolve those two problems at once. Given that I proposed an identical amendment in this House, I am unsurprisingly in favour of it, and I congratulate Baroness Morgan on doing a better job of persuading the other place of its merits than I managed to do in this place. I am pleased to see the Government effectively accept that amendment today.
Finally, I will say a few words about the amendments tabled by other right hon. and hon. Members. If you will forgive me, Madam Deputy Speaker, in the interests of time, I will not speak to all the amendments proposed by my hon. Friend the Member for Yeovil (Mr Fysh)—I can see that you approve. However, from what I have just said, he will gather that I cannot support his amendment (a) to Lords amendment 1, which would limit application of all the safety duties in the Bill to
“providers of significant size and capacity, and with a substantial involvement in the communication of media content”.
I cannot support my hon. Friend’s amendment for both technical and substantive reasons. The technical reason is that Lords amendment 1 adds an introductory clause to the Bill that is designed to be a guide to its contents and effects, and his amendment to that clause is not followed through in the rest of the Bill. As such, the introductory clause would say that the Bill’s scope is limited to larger platforms only, but the rest of the Bill would not say the same. The more substantive reason is that in my view, my hon. Friend’s amendment is both inappropriate and unnecessary. It is inappropriate because highly harmful content can be found on smaller platforms, and all platforms should surely do what they can to minimise harm to children and the presence of illegal content on their service, which are the focuses of the Bill. It is unnecessary because the concept of proportionality runs through the Bill, so the regulator’s expectations of small platforms can and should be different from its expectations of large ones.
My hon. Friend’s other amendments seek to avoid introducing, by means of the imposition of the safety duties, what he describes as
“systemic weakness and vulnerabilities relating to compliance with the duties”.
He seeks to do so in a number of places in the Bill. However, that concept of systemic weaknesses and vulnerabilities is not defined and could be extraordinarily wide, potentially undermining the whole purpose of those safety duties. I am being slightly unfair to my hon. Friend, because he has not spoken yet, but I think he is primarily concerned with the Bill’s effect on encrypted services. Others have expressed concern, too—my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and the hon. Member for Brighton, Pavilion (Caroline Lucas) have made their concern known through their amendment to Lords amendment 217—which raises
an important question about where we are on encryption. Throughout the progress of the Bill, Ministers have been clear that it involves no ban on the use of encryption. However, as others have said, there will need to be some further clarity—not least, by the way, about the interaction of the regime we are creating with the data protection regime and the involvement of the Information Commissioner’s Office.
Encryption clearly cannot be a “get out of jail free” card for safety duty compliance. Surely, people cannot say, “I operate an encrypted service, so I do not have to comply with the safety duties.” Does it therefore follow that if there is no prohibition on the use of encryption and no exemption from safety duties just because a service uses it, each service that is within the scope of the Bill and uses encryption must show Ofcom that it can meet its safety duties proportionately and with due weight given to balancing duties—particularly on privacy—with the use of encryption? If a service cannot do so, does it follow that Ofcom will require that service to not use encryption, to the extent that that is necessary for it to meet its safety duties to Ofcom’s satisfaction? We need clarity on that point.
Finally, as I said at the start, the Bill is not perfect and there is still much work to be done, but if we can agree the final changes we are discussing and, indeed, if their Lordships are prepared to endorse that next week, the very real prize to be won is that Ofcom can begin the work that it needs to do sooner rather than later and we can bring nearer the benefits that this legislation can deliver for the vulnerable online. More than that, we can enhance the reputation of Parliament as we show that we can do difficult legislation in otherwise fractious times with sincerity, seriousness and a willingness to compromise. I think that is a valuable prize and one within our grasp, and it is why I shall support the Government amendments.