My Lords, I will speak to the amendments in this group in my name: Amendments 139, 140, 144 and 145. I thank the noble Lords, Lord Stevenson and Lord Clement-Jones, and the noble Viscount, Lord Colville, for signing those amendments and for their continued support on this group. I am also grateful to my noble friend the Minister and his team for engaging with me on the issue of Secretary of State powers. He has devoted a lot of time and energy to this, which is reflected in the wide- ranging group of amendments tabled by him.
Before I go any further, it is worth emphasising that the underlying concern here is making sure that we have confidence, through this new regulation regime,
that the Bill strikes the right balance of power between government, Parliament, the regulator and big tech firms. The committee that I chair—the Communications and Digital Select Committee of your Lordships’ House—has most focused on that in our consideration of the Bill. I should say also that the amendments I have brought forward in my name very much have the support of the committee as well.
These amendments relate to Clause 39, which is where the main issue lies in the context of Secretary of State powers, and we have three broad concerns. First, as it stood, the Bill handed the Secretary of State unprecedented powers to direct the regulator on pretty much anything. Secondly, these powers allowed the Government to conduct an infinite form of ping-pong with the regulator, enabling the Government to prevail in a dispute. Thirdly, this ping-pong could take place in private with no possibility of parliamentary oversight or being able to intervene, as would be appropriate in the event of a breakdown in the relationship between executive and regulator.
This matters because the Online Safety Bill creates a novel form for regulating the internet and what we can or cannot see online, in particular political speech, and it applies to the future. It is one thing for the current Government, who I support, to say that they would never use the powers in this way. That is great but, as we know, current Governments cannot speak for whoever is in power in the generations to come, so it is important that we get this right.
As my noble friend said, he has brought forward amendments to Clause 39 that help to address this. I support him in and commend him for that. The original laundry list of powers to direct Ofcom has been shortened and now follows the precedent set out in the Communications Act 2003. The government amendments also say that the Secretary of State must now publish their directions to Ofcom, which will improve transparency, and once the code is agreed Ofcom will publish changes so that Parliament can see what changes have been made and why. These are all very welcome and, as I say, they go a long way to addressing some of our concerns, but two critical issues remain.
First, the Government retain an opt-out, which means that they do not have to publish their directions if the Secretary of State believes that doing so would risk
“national security or public safety”,
or international relations. However, those points are now the precise grounds on which the Secretary of State may issue a direction and, if history is any guide, there is a real risk that we will never hear about the directions because the Government have decided that they are a security issue.
My Amendments 139 and 140 would require the Secretary of State to at least notify Parliament of the fact that a direction has been issued and what broad topic it relates to. That would not require any details to be published, so it does not compromise security, but it does give assurance that infinite, secretive ping-pong is not happening behind the scenes. My noble friend spoke so quickly at the beginning that I was not quite sure whether he signalled anything, but I hope that he may be able to respond enthusiastically to Amendments 139 and 140.
Secondly, the Government still have powers for infinite ping-pong. I appreciate that the Government have reservations about capping the number of exchanges between the Secretary of State and Ofcom, but they must also recognise the concern that they appear to be preparing the ground for any future Government to reject infinitely the regulator’s proposals and therefore prevail in a dispute about a politically contentious topic. My Amendments 144 and 145 would clarify that the Government will have a legally binding expectation that they will use no more than the bare minimum number of directions to achieve the intent set out in their first direction.
The Government might think that adding this to the Bill is superfluous, but it is necessary in order to give Parliament and the public confidence about the balance of power in this regime. If Parliament felt that the Secretary of State was acting inappropriately, we would have sufficient grounds to intervene. As I said, the Government acknowledged in our discussions the policy substance of these concerns, and as we heard from my noble friend the Minister in introducing this group, there is an understanding on this. For his part, there is perhaps a belief that what they have done goes far enough. I urge him to reconsider Amendments 144 and 145, and I hope that, when he responds to the debate on this group, he can say something about not only Amendments 139 and 140 but the other two amendments that will give me some grounds for comfort.