Overview

OFCOM’s independence in day-to-day decision making is paramount to preserving freedom of expression. Independence of media regulators is the norm in developed democracies and the UK has signed up to many international statements in this vein. The Government has without justification given itself powers to give OFCOM direction on non-strategic matters. The Secretary of State has by contrast no powers over OFCOM on broadcast regulation. The powers in the OSB include the power to direct OFCOM as to the content of Codes of Practice which are an important part of the implementation of the regime. The outline amendment promised to the Lords by the Government barely constrains these powers. A ‘write and have regard’ process in relation to the Codes would be much more appropriate. The Secretary of State also takes powers to give tactical guidance to OFCOM on the ‘exercise of their functions’ (cl 157), to which they must have regard, as well as strategic guidance (cl 153). The tactical guidance – which could include intrusive detail on, say budgets, which areas to focus on and leave out – should be removed. Tactical guidance undermines OFCOM’s authority as well as its independence: companies and civil society will lobby the Government hard to tell OFCOM what to do.

These points were debated at some length when DCMS Ministers Paul Scully MP and Lord Parkinson appeared before the Lords Communication and Digital Committee in late January. After the hearing the Committee’s Chair, Baroness Stowell, sent correspondence to DCMS setting out why the clauses above needed to be amended or removed from the Bill; Stowell referred to the arguments set out in this letter during the Lords Second Reading debate; and many other Peers, including the front bench spokespeople from both main opposition parties and the Bishops of Manchester and Oxford, also raised similar concerns.

Analysis

There are two interlinked issues that arise from the myriad powers granted to the Secretary of State throughout the Bill:

The unjustified intrusion of the Secretary of State (from whichever party is in power) in decisions that are about the regulation of speech
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 Government – in its WMS of 7/7/22 and in the Lords Second Reading debate – has indicated a concession may be coming on clause 39 (previously clause 40) in the Lords. We are of the view this should be resisted as it does not go far enough.

Threats to OFCOM’s independence

The Secretary of State should not be able to give OFCOM specific direction on non-strategic matters. OFCOM’s independence in day-to-day decision making is paramount to preserving freedom of expression.
Independence of media regulators is the norm in developed democracies and the UK has signed many international statements in this vein, as recently as April 2022 at the Council of Europe (‘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’)
The Bill has introduced powers for the Secretary of State to direct OFCOM on internet safety codes, codes which give put the regime into practice for companies – these powers should be removed. After all, in broadcasting regulation OFCOM is trusted to make powerful programme codes with no interference from the SoS.
The Secretary of State also takes powers to give tactical guidance to OFCOM on the ‘exercise of their functions’ (cl 157, previously cl 148) as well as strategic guidance (cl 153, previously cl 144): the tactical guidance should be removed.
The Bill also expands unconstrained emergency-like powers in the draft Bill that would allow the Secretary of State to direct OFCOM (exercising its media literacy powers; cl 156) and even target individual companies – the ability to direct should be removed to preserve OFCOM’s independence.

Clause 39 Secretary of State’s powers of direction

Clause 39(1)(a) gives the Secretary of State power to direct OFCOM to make specific changes to some of OFCOM’s draft codes of practice if s/he ‘believes that…modifications are required…for reasons of public policy’. The codes are the fulcrum of the regulatory regime and this is a significant interference in OFCOM’s independence.

OFCOM itself has noted that the ‘reasons of public policy’ power to direct might weaken the regime. If OFCOM has undertaken a logical process, rooted in evidence to arrive at a draft code then it is hard to see how a ‘reasons of public policy’ based direction is not irrational. This then creates a vulnerability to legal challenge. This clause should be removed.

We also have concerns that the same clause gives the Secretary of State powers to direct OFCOM on national security or public safety grounds, and also the Terrorism and CSEA codes of practice. The government has not demonstrated why it needs a power to direct. In the broadcasting regime, there are no equivalent powers and the Secretary of State was able to resolve the case of Russia Today on national security grounds with public correspondence between the Secretary of State and OFCOM. Moreover, it is unclear why this is necessary given the existence of cl 156 (below).The Secretary of State can use the cl 39 powers to direct OFCOM continuously in a form of ping pong before laying a code – this signals a willingness of government to wear OFCOM down and impose the government’s view on the regulator. It seems to be preparing the ground for an irrational or highly disputed request.

Potential Government Concession

In her WMS of 7/7/22, the then Secretary of State signalled that an amendment would be coming in the Lords to address the concerns raised about this clause. The WMS states:

We recognise the concerns raised that the Bill allows too great a degree of executive control. These have focused in particular on the power for the Secretary of State to require OFCOM to modify a draft of a code of practice for reasons of public policy. We remain committed to ensuring that OFCOM maintains its regulatory independence, which is vital to the success of the framework. With this in mind, we have built a number of safeguards into the use of the Secretary of State’s powers, to ensure they are consistent with our intention of having an independent regulator, and are only used in limited circumstances with appropriate scrutiny. We will make two substantive changes to this power: firstly, we will make it clear that this power would only be used ‘in exceptional circumstances’; and secondly, we will replace the ‘public policy’ wording with a more clearly defined list of reasons for which the Secretary of State could issue a direction. This list will comprise national security, public safety, public health, the UK’s international relations and obligations, economic policy and burden to business.

This amendment retains a very wide set of grounds for the SoS to interfere and does not go far enough to address the problems with this clause and the exercise of the Secretary of State’s powers and should be resisted.

At Report stage on 12^th July, the then Bill Minister (Damian Collins) responded to the concerns raised by Wright, the DCMS Select Committee and Davies-Jones about clause 39:

This applies only to the period when the codes of practice are being agreed, before they are laid before Parliament. This is not a general provision. I think sometimes there has been a sense that the Secretary of State can at any time pick up the phone to OFCOM and have it amend the codes. Once the codes are approved by the House they are fixed. The codes do not relate to the duties. The duties are set out in the legislation. This is just the guidance that is given to companies on how they comply. There may well be circumstances in which the Secretary of State might look at those draft codes and say, “Actually, we think OFCOM has given the tech companies too easy a ride here. We expected the legislation to push them further.” Therefore it is understandable that in the draft form the Secretary of State might wish to have the power to raise that question, and not dictate to OFCOM but ask it to come back with amendments. I take on board the spirit of what Members have said and the interest that the Select Committee has shown. I am happy to continue that dialogue, and obviously the Government will take forward the issues that they set out in the letter that was sent round last week to Members, showing how we seek to bring in that definition. (Column 218)

Amendment

The Government has not yet provided the draft of its proposed amendment and definitions. We do not believe it will go far enough. We would prefer to see clause 39 replaced with the ability for the Secretary of State to write to OFCOM in public with observations on codes and for OFCOM to have regard to such letters. This is the conventional approach to UK government/regulator relationships. The government’s ability to write letters should not be infinite. Codes issued after such correspondence should be approved by the House using the affirmative procedure (clause 40).

Clause 156 Secretary of State’s Direction in “Special Circumstances”

This gives the Secretary of State to direct OFCOM to give priority to specific objectives for a specified period; it may even result in OFCOM targeting individual service providers. While the power is limited to public health, public safety and national security, it is not limited to emergency situations. There is no provision for Parliamentary involvement although the Secretary of State must publish reasons for the Direction. Although the provision envisages the use of media literacy – with providers being required to specify what they are doing about the identified problem – this allows potentially broad and on-going interference with OFCOM’s administration of the regime which is undesirable. This clause should be deleted, or restricted to emergency situations and the periods for which Direction may stay in operation should be limited and subject to constraints on repeat rollover.

Clause 157 Secretary of State’s Guidance

The Secretary of State takes powers in cl 157 to issue detailed tactical guidance to OFCOM on the ‘exercise of their functions’, to which OFCOM should have regard. This is in addition to Cl 153 which allows the Secretary of State to make a statement of strategic priorities relating to online safety. The tactical guidance is incredibly broad and detailed in scope. While it has constraints in terms of how frequently the guidance may be amended, there are no constraints as to its scope. The guidance has no Parliamentary input into its drafting (though the Guidance will be laid before Parliament). Even qualified by ‘have regard’ (157 (8)), this power is interference in how OFCOM carries out regulation. Clause 157 should be deleted.

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Secretary of State’s powers and the independence of OFCOM