I am very happy to put in writing what I have said from the Dispatch Box. The noble Baroness may find that it is the same, but I will happily set it out in further detail.
I should make it clear that the Bill does not permit law enforcement agencies to access information held on platforms, including access to private channels. The National Crime Agency will be responsible for receiving reports from in-scope services via secure transmission, processing these reports and, where appropriate, disseminating them to other UK law enforcement bodies and our international counterparts. The National Crime Agency will process only information provided to it by the company; where it determines that the content is child sexual abuse content and meets the threshold for criminality, it can request further information from the company using existing powers.
I am glad to hear that my noble friend Lord Moylan does not intend to divide on his amendment. The restrictions it sets out are not ones we should impose on the Bill.
Amendments 256, 257 and 259 in the name of the noble Lord, Lord Stevenson of Balmacara, require a notice to be approved by a judicial commissioner appointed under the Investigatory Powers Act 2016 and remove Ofcom’s power to require companies to make best endeavours to develop or source new technology to address child sexual exploitation and abuse content.
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The Investigatory Powers Act and this Bill are very different regimes which should not be conflated. The Investigatory Powers Act comprehensively sets out the powers of public bodies, including the UK’s intelligence agencies and police, to access communications and content data, and establishes safeguards and restrictions for that. This Bill, by contrast, is a risk-based regime requiring companies to take responsibility for the harms facilitated by their own services. The powers in Clause 111 can require a company to tackle the huge volume of child sexual exploitation and abuse that is, sadly, manifested on private channels. This does not supplement or overlap with the roles or powers of the security services or the police, which are provided for by the Investigatory Powers Act.
It is right that these two regimes are overseen by two different, independent regulators. It would not be appropriate for the judicial commissioners to oversee Ofcom’s work. More importantly, it is not necessary: the Bill already contains robust safeguards requiring Ofcom to consider large quantities of information to allow for evidence-based decision-making. The government amendments in this group, which I have spoken to, further strengthen those safeguards.
In removing the “best endeavours” power, the noble Lord’s amendments would significantly reduce the capacity for a notice to be flexible and pragmatic. The power allows Ofcom to require companies to innovate and design practical, proportionate solutions that are compatible with their own service. Without this power, Ofcom could be left with the choice of requiring the use of incompatible and ineffective technologies, or doing nothing and allowing child abuse material to continue to proliferate on a service. Removing this power would not be in anyone’s interest.
I turn now to the amendments in the name of the noble Lord, Lord Allan of Hallam, which seek to introduce a public consultation before Ofcom issues a notice, and a review of notices by the Information Commissioner’s Office. I recognise that the aim of Amendment 258 is to provide transparency, but it will not always be appropriate for Ofcom to share the details of a notice with a public audience. There is a high risk that its content and context could be exploited by criminals and used to further illegal activities online. We agree, however, that Ofcom must be as transparent as possible in carrying out its functions. That is why Ofcom must report on its use of Clause 111 powers in an annual report. That will ensure that key facts about Ofcom’s decisions are placed in the public domain. In addition, Ofcom is required by the Communications Act, when carrying out its functions, to have regard to the principles under which regulatory activities should be transparent and accountable.
On Amendment 258ZA, on which the noble Lord said he may test the opinion of your Lordships’ House, while he is right to emphasise the expertise of the Information Commissioner’s Office, I hope will not seek to divide, because the requirement in his amendment is duplicative. I agree with him that it is important that Ofcom and the ICO work closely together. Ofcom is required to consult the ICO before producing guidance on how it will use its Clause 111 powers, and it may consult the Information Commissioner’s Office before issuing a notice, where necessary—for example, if a company has made representations about a proposed requirement.
Ofcom cannot take any action which breaches data protection and privacy legislation, nor can it require services to do so. That is already set out both in the Bill and in existing regulations. Should services wish a notice to be reviewed, the Bill already provides robust routes of appeal under Clause 151 via the Upper Tribunal, which will consider whether the regulator’s decisions have been made lawfully.
I will touch on the question raised by my noble friend Lady Harding of Winscombe—