July 10, 2023

Secretary of State powers in the Online Safety Bill

by Professor Lorna Woods, Professor of Internet Law, University of Essex; William Perrin, Trustee, Carnegie UK; Maeve Walsh, Carnegie Associate

In the second of our series of blogs to coincide with the Online Safety Bill’s Lords Report stage we look at an issue that we have long had concerns about: the extent of powers granted to the Secretary of State in the Bill.

As a reminder, the myriad powers granted to the Secretary of State are problematic for two principal reasons:

  • The unjustified intrusion of the Secretary of State (from whichever party is in power) in decisions that are about the regulation of speech; and
  • The unnecessary levels of interference and threats to the independence of Ofcom that arise from the powers of direction to Ofcom on its day-to-day matters.

The starting point for Ministerial powers over media regulation in the UK is that the Secretary of State has no powers over OFCOM on the content of broadcast regulation in the Communications Act. None. When Ministers talk of ‘alignment’ with that Act, they omit to mention that Ministers have limited powers to direct over radio spectrum and wires but not content. This is the international standard and the UK has signed up to many statements in this vein (e.g. Council of Europe April 2022):

 ‘media and communication governance should be independent and impartial to avoid undue influence on policy making, discriminatory treatment and preferential treatment of powerful groups, including those with significant political or economic power’.

Dr Alexandros Antoniou’s table illustrating the scope of Secretary of State powers in the Bill is provided as an Annex to this briefing note.

Sir Jeremy Wright, the DCMS Select Committee, and Alex Davies-Jones for the Labour frontbench put down amendments at Commons Report to improve the situation but these were rejected by the Government. The topic was discussed extensively at Lords Second Reading and the Lords Communications and Digital Committee, following their hearing with (then-)DCMS Ministers in January, wrote to Michelle Donelan to request the Bill be amended. This call – specifically to remove or amend clause 39 – was echoed by the Delegated Powers and Regulatory Reform Committee and concerns noted by the Constitution Committee. The issue then received significant scrutiny in Lords Committee, where Lord Stevenson and Baroness Stowell, Chair of the Lords Communications and Digital Committee, both tabled amendments.

Clause 39 – powers to direct Ofcom to modify codes of practice

Having promised a concession a year ago, in its WMS of 7/7/22, and in subsequent Parliamentary debates since then, (see Lords Communications and Digital Committee Hearing and Lords Second Reading Debate), the Government finally tabled its amendments (134-138) to one of the clauses – 39 – ahead of Report. These specify the circumstances in which the Secretary of State can direct OFCOM on its codes of practice, which underpin the Bill’s safety duties. We would prefer that the ability to direct be removed altogether and in any event, while we welcome the general thrust of the Government’s amendments, take the view that the clause could be tightened up further.

The Government’s amendments remove the problematic ‘public policy’ grounds for direction and ‘narrow’ the power to national security, public safety, public health, relations with other nations outside the UK and the UK’s international obligations (treaties). Also, the directions will now be published when made, not when OFCOM has finished with them.

Nonetheless, more safeguards are needed. It is vital to ensure that the Secretary of State cannot use direction here to get around safeguards elsewhere – such as encryption. Amendments tabled by Baroness Stowell (144 & 145) increase transparency and usefully constrain the Secretary of State’s room for manoeuvre to what is ‘necessary’.

Clause 158 – powers to direct OFCOM in special circumstances

This clause gives the Secretary of State to direct OFCOM to use its media literary functions or to give a ‘public statement notice’ if ‘the Secretary of State has reasonable grounds for believing that circumstances exist that present a threat (a) to the health or safety of the public, or (b) to national security’. The thresholds here are far too low: neither “reasonable grounds” nor the threat are qualified by having to be ‘serious’ or ‘significant’. Although the clause is entitled ‘Special circumstances’ the wording in the provision refers to just circumstances. It certainly does not here refer to an emergency (merely that the circumstances are a threat to the public at large, not individuals as elsewhere in the Bill).  Neither Parliament nor the public are engaged in the directions processes which have no time limit nor review process. The Secretary of State can in relation to public statement notices target one company alone which seems invidious. There are not checks or balances to the exercise of this power.  Possibly this could be constrained by amendment, as in clause 39. However, we support Lord Clement Jones (amendment 219) that this does not stand part.

Clause 159 – Secretary of State’s guidance on ‘OFCOM’s exercise of their functions under this Act’

While strategic priority-setting by the Secretary of State every 5 years is fine (Cl 155), tactical interference in OFCOM’s operations (Cl 159 (1)(a)) is bad, even if it only takes place every 3 years. This provision gives a Secretary of State the ability to issue guidance to OFCOM on how it goes about its day-to-day business on more or less anything in the Bill. This crosses the boundary between the setting of objectives for the regulator (which should be done by Parliament and not the executive anyway) and day to day implementation of the regime where the regulator should operate independently, basing its decisions on evidence, not political steers. The Government has suggested that the guidance will not have a signification impact on Ofcom but the guidance cannot be ignored by OFCOM – they have to weigh up in every area that the guidance might have effect whether they should apply it. This adds a substantial burden on OFCOM, slows work down and introduces regulatory uncertainty. It also potentially affects the substance of the decisions.

Even if we were to accept the existence of such guidance there are no procedural safeguards. The Secretary of State does not have to consult Parliament or the public when issuing guidance, merely table it after it has been made.  The lack of any constraint on the Secretary of State’s powers here is a real concern and interference at this detailed level goes against the UK’s international position on regulatory independence (see CoE statement above). We supported the Lords Communications and Digital Committee desire for this to be deleted and support Lord Clement Jones (amendment 222) that this clause not stand part. The Government will have an intense two-year dialogue with OFCOM while setting up the regime. That should suffice for Secretary of State guidance, especially given the Secretary of State’s statement of strategic priorities (Cl 153). Anything else smacks of insecurity. If direction/guidance is really needed, bring it in at a five-year review (Cl 161).

The powers to direct in ‘Special Circumstances’ (clause 158) and to give Guidance on ‘delivery of its functions’ (clause 159) are each cumulatively over the top bearing in mind the Secretary of State’s other opportunities for intervention and should be cut. (Amendments 219 & 222)