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Online Safety Bill - proposed Ministerial influence over regulator could lead to ‘deals done in corridors’

Derek du Preez Profile picture for user ddpreez January 26, 2023
Summary:
The Online Safety Bill is the British Government’s attempt at using legislation to make the UK the ‘safest place in the world to be online’. But concerns are being raised about Ministerial reach.

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(Image by Gerd Altmann from Pixabay )

The Online Safety Bill, a piece of legislation aimed at making the UK the ‘safest place in the world to be online’, has undergone a number of changes, has been delayed due to political turmoil, and has faced serious backlash from privacy campaigners. And it seems that the Conservative Party’s latest attempt to get the legislation passed, having already made a number of concessions, will likely be blocked by peers in the House of Lords unless concerns relating to Ministerial powers are addressed. 

The concerns were raised during a House of Lords Committee evidence session this week, ahead of the Bill’s second reading in the House of Lords, where peers discussed a clause that would enable the Secretary of State for Digital, Culture, Media and Sport (DCMS) to potentially influence Ofcom’s independence when laying out its code of practice for internet companies to protect users (a key priority as part of the legislation). 

The government argues that any changes to the code of practice would still have to be agreed by Parliament. However, members of the Committee argued that the Bill in its current form could result in ‘deals being done in corridors’ between Ministers and business. 

The Bill states that the Secretary of State can intervene (or make a direction to the regulator, Ofcom) if they feel that the code of practice needs amending on the grounds of national security, or more broadly, public policy (this latter point is where the concern mostly lies). 

During the Committee’s hearing this week, Lord Lipsey expressed concern to Paul Scully MP, Parliamentary Under-Secretary of State of Tech and the Digital Economy, who was providing evidence. Lord Lipsey said: 

Ofcom produces a code of practice that says ‘you have to do this’. The Secretary of State then bumps into a chum in the corridor who says ‘my business is going to have to pay a fortune doing that’. So the Secretary of State says ‘oh we can’t do that’. 

They send it back to Ofcom. Ofcom sends it back to the Secretary of State. The Secretary of State sends it back to Ofcom. Parliament, which is supposed to govern this nation, doesn’t get a look in. It’s entirely private business between Ofcom and the Secretary of State. 

And it might absolutely never happen, the code of practice might get held up forever. We won’t accept this, it isn’t a runner. 

‘Exceptional circumstances’

According to the Bill, the direction from a Secretary of State must be made within 45 days of receiving the code of practice from Ofcom. And then once that direction is issued, the final code of practice would have to be approved by Parliament. 

However, the members of the Committee highlighted their concern that this leaves too much room for influence over what should be an independent regulatory body, with Parliament not getting a say until a potential back and forth over the code of practice has taken place. 

Scully rebutted the argument, stating that the Online Safety Bill is a “groundbreaking” piece of legislation that countries around the world are looking to replicate - arguing that it will “form the basis of a global regime if we get this right”. The EU has already enacted its Digital Services Act, which covers similar topics, but unsurprisingly that didn’t get a mention. 

Scully argued that a direction from the Secretary of State to Ofcom would only be used in “exceptional circumstances”. He said: 

Our aim is to balance the need for regulator independence with the appropriate oversight for parliament and government. You rightly say that concerns have been raised about this, which is why we have proposed the changes in the written ministerial statement that was published on the seventh of July - we're going to make it clear in the legislation in your house, that this power would only be used in exceptional circumstances. 

And we're going to replace that public policy wording with a more clearly defined list of reasons for which the Secretary State could make a direction. It might be public health, it might be national security, so there are very specific areas which Ofcom may not have the right level of information to be able to make such judgments.  

The argument for the clause appears to be that Ofcom may not always have the full picture, due to sensitive government information. Scully continued: 

But Ofcom’s independence and expertise will obviously be of the utmost importance to the success of the regime. But because of the very broad nature of online harms, it means that there's going to be subjects which may go beyond their remit as a regulator. 

But the framework itself will always ensure that Parliament has the final say on those codes of practice and the use of the affirmative procedure will make sure that there is an increased level of scrutiny in any of those exceptional cases where the element of this power is used.

I think that's why the checks are there. There's no question that with the checks that we’re suggesting that a deal could be done in the corridor. First of all, we talk about exceptional circumstances. But secondly, as I say, Parliament has to have the final say on that. 

My take

The challenges surrounding the Online Safety Bill are essentially a question of: where should the power lie? With the users? With the companies hosting content? With the government? With the regulators? It’s a delicate balancing act that pulls in very deserving concerns around privacy, state surveillance, protecting children, and freedom of speech. But one thing that should be obvious is that decisions on these issues should not lie with a Minister, from whichever side of the political spectrum, who may be influenced by the headlines of the day. 

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