My Lords, I note that the noble Lord, Lord Stevenson, is no longer in his place, but I promise to still try to live by his admonition to all of us to speak briefly.
I will speak to Amendments 281BA, 281FA, 286A and 281F, which has already been debated but is central to this issue. These amendments aim to fix a problem we repeatedly raised in Committee and on Report. They are also in the name of the noble Baroness, Lady Kidron, and the noble Lords, Lord Stevenson and Lord Clement-Jones, and build on amendments in Committee laid by the noble Lord, Lord Russell, my noble friend Lord Bethell and the right reverend Prelate the Bishop of Oxford. This issue has broad support across the whole House.
The problem these amendments seek to solve is that, while the Government have consistently asserted that this is a systems and processes Bill, the Bill is constructed in a manner that focuses on content. Because this is a rerun of previous debates, I will try to keep my remarks short, but I want to be clear about why this is a real issue.
I am expecting my noble friend the Minister to say, as he has done before, that this is all covered; we are just seeing shadows, we are reading the Bill wrong and the harms that we are most concerned about are genuinely in the Bill. But I really struggle to understand why, if they are in the Bill, stating them clearly on the face of the Bill creates the legal uncertainty that seems to be the Government’s favourite problem with each of the amendments we have been raising today.
My noble friend—sorry, my friend—the noble Baroness, Lady Kidron, commissioned a legal opinion that looked at the statements from the Government and compared it to the text in the Bill. That opinion, like that of the many noble Lords I have just mentioned, is that the current language in the Bill about features and functionalities only pertains as far as it relates to harmful content. All roads in this game of Mornington Crescent lead back to content.
Harmful content is set out in a schedule to the Bill, and this set of amendments ensures that the design of services, irrespective of content, is required to be safe by design. If the Government were correct in their assertion that this is already covered, then these amendments really should not pose any threat at all, and I have yet to hear the Government enunciate what the real legal uncertainty actually is in stating that harm can come from functionality, not just from content.
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Secondly, I think that, in the process of this Report stage, we may have risked making the Bill worse, not better, by creating a real confusion. At the front of the Bill, the new purposive Clause 1 sets out really clearly that regulated companies have to be safe by design. But when you actually work your way through the Bill, unfortunately, at each point in the Bill, we only then refer back to content; we do not refer back to the functionality that can in and of itself be harmful. There is no reference to functionality in the risk assessments, the child safety duties, or the definitions of harm—no reference to the systems and processes that may in themselves be designed well or badly, irrespective of content.
I note that both the noble Baroness, Lady Kidron, and the noble Lord, Lord Knight, on our last day of Report, made reference to the work of Professor Bowden-Jones, which included the spectre of children so addicted to reward loops of games and other media that they needed to attend a gambling or gaming clinic, including the spectre of a child who left their house in the dead of night to access wifi from a random hotspot when their desperate parents had switched off the home wifi.
As we have said several times before, it is not an accident that these platforms do this; it is a direct result of their business models to encourage dwell time, which in turn drives addiction, irrespective of content. It is very well established by psychiatrists, many of whom have already been quoted, including for example Dr Norman Doidge, a pre-eminent Canadian psychiatrist, that the plasticity of the brain in the developing teenager makes them particularly susceptible to this sort of addiction. Once caught in that loop as a teenager, it stays with them for life. So this is a very real and present risk to today’s teenagers, to —unfortunately—the last decade’s teenagers and to all teenagers as we look ahead. It is why, together with my co-signatories, we felt that we had to continue to keep pressing this.
Thirdly, both in Committee and on Report, we kept asking the Government to be more mindful of the future. This morning, I am sure like many other noble Lords, I woke up to the dulcet tones of my friend, the noble Baroness, Lady Kidron, talking about Meta’s overnight announcement about their large language model. I fear that it would be extraordinary hubris to keep insisting that content on its own is going to be the defining harm that our children face going forward. We simply do not know, and it is so important that we leave open the possibility for functionality that we cannot even imagine today to be launched tomorrow, let alone in five or 10 years.
It is a huge mistake to not make sure that this Bill captures non-content harm and functionality irrespective of any form of content. Because of the lateness of the hour and the urgency of catching trains to get home before the train strike, I will not go through what each of the amendments do, save to say that they introduce specific elements in the back half of the Bill to ensure that non-content harm is captured. We are in a bit of a mess in this Bill, because the front half of the Bill now does include non-content harms, in both Amendment 35 and Amendment 240. So we do need to make sure that in the end we produce a Bill that is internally consistent and genuinely captures the purpose set out in the new Clause 1 all the way through the Bill.
I would like to ask my noble friend a couple of questions. First: what is the legal uncertainty that I am fully expecting him to set out that he is so worried about, and is the reason why he cannot accept the amendments? There is a charitable interpretation, which is that we are all worried about creating legal uncertainty. My co-signatories and I are worried about the legal uncertainty we are creating by not naming functionality as harm. If I am being charitable, I think the Government are worried—and this is what I do not understand—that by naming these non-contact harms, we somehow create a new loophole that would enable a platform to continue to cause harm and Ofcom not to be able to regulate. I hope we are united in trying to stop that,
and if so, I really hope that my noble friend can offer an explanation. This is not for the want of us having had many conversations about this, and we may need to have many more. I hope that that charitable interpretation is right: that we are all trying to do the same thing but we do not really understand how this complex Bill works.
There is, unfortunately, a less charitable interpretation, which would lead one to worry that the Bill is actually just about content. I ask my noble friend to confirm that this is not just a content Bill. One of the things that most scared me was Ofcom’s insistence in front of the Communications and Digital Select Committee last week that, if the amendments were allowed, it would create a huge amount of additional work for it. I note that the Government have been briefing that today: that the amendments would lead to substantial delay because of the extra work Ofcom would need to do. That makes me worried that Ofcom has not properly thought about the consequences of non-content harm—harm generated by functionality—if it really will take it so long. That is the much less charitable interpretation of why I am expecting my noble friend to reject the amendments. I should like to understand those two questions: what is really the legal uncertainty that the Government are worried about; and why, if this is all covered, would it take so long?
I am channelling my friend the noble Baroness, Lady Kidron, here, but this is such an important part of protecting our children that if it really is going to take some extra months to prepare to do it properly, we should be willing to do that. We have a few months ahead of us over the summer holidays, and we know that Ofcom has done a brilliant job in getting ahead of the legislation. If the problem is simply that there might be some extra work—provided that really is the reason, rather than the Government not wanting it to be anything other than a content Bill—we should accept that it will take a bit of time. I should like to understand the answer to that.
It is late, and it has been a long Report stage. I will listen very carefully to what my noble friend the Minister has to say. I really hope that the Bill can continue to progress in this collaborative way. It would be an awful shame if, at the end of a long Report stage, we did not recognise that we are trying to solve the same problem and find a way through. I beg to move.