My Lords, my noble friend on the Front Bench said at various points when we were in Committee that the Bill struck an appropriate balance between protecting the rights of children and the rights of those wishing to exercise their freedom of expression. I have always found it very difficult indeed to discern that point of balance in the Bill as originally drafted, but I will say that if there were such a point, it has been swamped by the hundreds of amendments tabled to the Bill by my noble friend since Committee which push the Bill entirely in the opposite direction.
Among those amendments, I cannot find—it may be my fault, because I am just looking by myself; I have no help to find these things—a single one which seeks to redress the balance back in favour of freedom of expression. My Amendments 123, 128, 130, 141, 148 and 244 seek to do that to some extent, and I am grateful to the noble Baroness, Lady Fox of Buckley, for the support she has expressed for them.
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The Bill includes various provisions requiring providers to have regard to freedom of speech. The group of amendments I am about to speak to addresses the fact that nowhere in the Bill is there any obligation placed
on Ofcom to have regard to freedom of speech, unless—it is just possible—it is in that swathe of amendments that has been tabled which I have been swimming in over the weekend looking for a few pearls but finding none. I will take noble Lords through those amendments very briefly, and say what they actually do. I cannot see that there could be any objection to them from any Member of the House, but it seems that the Government are uninterested.
Amendment 123 appears in Chapter 6 of the Bill, which deals with codes of conduct, and imposes a new duty on Ofcom in exercising the functions listed in that regard to
“have special regard to the importance of protecting the rights of users of a service and … interested persons to freedom of expression within the law”.
Who can object to that? Amendment 128 requires Ofcom to issue a statement when it is issuing a code of conduct, showing how it has complied with this new duty. Amendment 130 requires the Secretary of State to lay that statement before Parliament alongside the draft code of conduct, when he lays it.
Amendment 141 relates to how Ofcom responds to a direction—we are moving away from codes of conduct now—from the Secretary of State made under Clause 39. It requires the document Ofcom submits to the Secretary of State in response to that direction to specify how it has complied with the new duty. Amendment 148 requires Ofcom to issue a similar statement to accompany minor amendments to a code of conduct. Amendment 244 imposes a similar duty on Ofcom in relation to the issuance of guidance, which is separate from codes of conduct and from responding to a direction from the Secretary of State. Finally, Amendment 269, which is slightly different, relates to Ofcom’s guidance to providers on enforcement activities, because Ofcom is required to give guidance to providers on how they conduct enforcement activities. Again, it requires Ofcom to have regard to freedom of speech in doing that.
These are not wild and woolly demands. One of the briefs I have received in relation to Report stage reads as follows:
“The proposed duties on providers of Category 1 Services … that seek to protect freedom of expression … should be replaced with a single comprehensive duty to protect the right to freedom of expression. This duty should require Category 1 Service providers to take all reasonable steps to ensure that freedom of expression is not infringed by measures taken to comply with the other duties in the Bill. This should include giving the duty to protect freedom of expression similar status and form as the duties on illegal content”.
That does not come from some strange right-wing think tank; it comes from the Equality and Human Rights Commission.
If I may briefly trespass on the House by quoting a little bit more, the commission goes further:
“The duty to protect the right to freedom of expression should be included in the list of relevant duties for which Ofcom will be required to develop a code of practice”.
I think I referred to it as a code of conduct in my remarks so far; code of practice is the correct term. This is precisely what part of one of my amendments seeks to do, so these recommendations have a very good pedigree. I cannot see, for the life of me, why the Government would want to resist them.
Before I sit down, I will turn briefly to some of the amendments in the name of the noble Baroness, Lady Fox of Buckley, to which I have added my name. Amendment 162 seeks to remove the offence in Section 5 of the Public Order Act from the list of priority illegal content. This provision criminalises
“threatening or abusive words or behaviour, or disorderly behaviour”
likely to lead to “harassment, alarm or distress”. In this House, we spent a considerable amount of time last year, in relation to the then Police, Crime, Sentencing and Courts Bill, seeking new statutory guidance—which has subsequently arrived—to the College of Policing about how this complex and difficult offence should be enforced in the non-virtual world. Here we are, in effect, simply handing it over to private companies, many of them abroad, under the strange and remote supervision of Ofcom, and assuming it is all going to work very well. It is not. The example of transgender disputes, given by the noble Baroness, is a particularly rich example of how difficult it is going to be for private companies to enforce it online. There is a strong case for removing it altogether from the Bill.
Amendment 188 relates to Clause 65, which is about providers’ terms of service. It requires Ofcom to enforce terms of service in a way that is compatible with our rights to freedom of expression under the European Convention on Human Rights. Noble Lords may remember that many of these companies come from countries that are not European. They do not live under the legal cosh of the European Convention on Human Rights. Why should we be enforcing terms of service that might be perfectly legal in California, or Russia, or Kazakhstan—we do not know where the next popular phenomena on the web are going to come from—without having the restriction placed on Ofcom that it cannot be done in a way that contravenes, or at least does not uphold, our rights under the European convention?
I turn to Amendment 275 and the peculiar discovery that the British Board of Film Classification is running its own parallel censorship system—they used to be called censors, so I think I can call them that fairly—in an entirely private arrangement that has no supervision from Ofcom at all. The suggestion is that perhaps, if we are going to have one system supervised by Ofcom, everything might be brought within it so that we have a degree of consistency. Again, I find it very hard to understand why the Government would resist an amendment that is so pellucidly commonsensical.
With that, I will sit down. I do not think these issues are going to go away; there is a very strong public interest in this, as there is, increasingly in recent days, in various other amendments that are going to come up later in the Bill. By pushing things through in the way we have with the amendments the Government have conceded to those who argue for stronger enforcement and more restriction on access to the internet, it may all pass through the Commons and simply become law. I seriously have my doubts, as I have expressed in relation to, for example, Wikipedia and the threat to Welsh Wicipedia, whether some of this is going to survive first contact with reality. The amendments I propose would make it easier to do so.