My Lords, I want to congratulate the noble Baroness, Lady Stowell, on her amendments and to raise some concerns, in particular about Amendment 138. I do this as somebody who has had the perhaps unique experience of being leaned on by Governments around the world who sought to give us, as a platform, directions about how to handle content. The risk is real: when there is a huge public outcry and you are an elected politician, you must be seen to be doing something, and the thing that you have been doing to date is to go directly to the platforms and seek to lean on them to make the change that you want.
In future, as the noble Baroness, Lady Stowell, has pointed out quite a few times, we are moving the accountability from the platforms to our independent regulator, Ofcom—and I agree with the noble Baroness, Lady Harding, that that is the right model, as it is an independent regulator. In these amendments we are considering a mechanism whereby that political outrage can still find an outlet, and that outlet will be a direction from the Secretary of State to the regulator asking it to change the guidance that it would otherwise have issued. It is really important that we dig into that and make sure that it does not prevent legitimate political activity but, at the same time, does not replicate the problem that we have had—the lack of transparency about decision-making inside companies, which has been resolved and addressed through leaks and whistleblowers. We do not want to be in a position in which understanding what has been happening in that decision-making process, now inside government, depends on leaks and whistleblowers. Having these directions published seems critical, and I worry a lot about Amendment 138 and how it will potentially mean that the directions are not published.
I have a couple of specific questions around that process to which I hope the Minister can respond. I understand how this will work: Ofcom will send its draft code of practice to the department and, inside the department, if the Secretary of State believes that there is an issue related to national security or there is another more limited set of conditions, they will be able to issue a direction. The direction may or may not have reasons with it; if the Secretary of State trusts Ofcom, they might give their reasons, but if the Secretary of State does not trust Ofcom with the information, they will give it the bare direction with no reasons. Clause 39 gives the Secretary of State the power to either give or withhold reasons, for reasons of national security. Ofcom will then come up with an amended version of the code of practice, reflecting the direction that it has been given.
The bit that I am really interested in is what happens from a Freedom of Information Act point of view. I hope that the Minister can clarify whether it would be possible for an individual exercising their Freedom of Information Act powers to seek the original draft code of practice as it went to the department. The final code of practice will be public, because it will come to us. It may be that we are in a situation in which you can see the original—Ofcom’s draft—and the final draft as it came to Parliament, and the only bit you cannot see under Amendment 138 is the actual direction itself, if the Secretary of State chooses to
withhold it. That is quite critical, because we can anticipate that in these circumstances there will be Freedom of Information Act requests and a significant public interest in understanding any direction that was given that affected the speech of people in the United Kingdom. I would expect the ICO, unless there was some compelling reason, to want that original draft from Ofcom to be made public. That is one question around the interaction of the Freedom of Information Act and the process that we are setting out here, assuming that the Secretary of State has withheld their direction.
The other question is whether the Minister can enlighten us as to the circumstances in which he thinks the Secretary of State would be happy to publish the direction. We have said that this is now related only to very narrow national security interests and we have given them that get-out, so I am curious as to whether there are any examples of the kind of direction, in legislating for a power for the Secretary of State, that would meet the narrow criteria of being those exceptional circumstances, yet not be so sensitive—to use the double negative—that the Secretary of State would want to withhold it. If there were some examples of that, it might help assure us that the withholding of publication will be exceptional rather than routine.
My fear is that Section 138 says you can withhold in some circumstances. Actually, if we read it all together and say that, by definition, the direction comes from the fact that there is a national security concern, we end up with a situation in which the lack of publication has to be on national security grounds. Those two mirror each other, and therefore the norm may be that directions are never published. The Minister might allay our concerns if he could, at least in general terms, describe the kind of directions that would meet the gateway criteria for being permissible and yet not be so sensitive that the Secretary of State would not be comfortable with them being published.
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