Compared to the broadcasting regime, there is considerably more intrusion by the executive and Parliament into the work of the independent regulator. We have written extensively on why this was problematic in the draft Bill – and it remains so here. Clause 40 permits the Secretary of State to direct OFCOM to change a code of practice. Whilst the draft Bill permitted this ‘to ensure that the code of practice reflects Government policy’, clause 40 specifies that any code may be required to be modified ‘for reasons of public policy’. While this is more normal language, it is not clear in practice what the difference between the two sets of wording is. Implicitly it seems that this excludes ‘national security or public safety’, which are specifically dealt with in relation to the CSEA and terrorism codes in clause 40(1)(b). This provision would be unnecessary, given clause 40(1)(a) applies to any draft code include CSEA/terrorism, if public policy were to cover national security or public safety. Different rules apply in relation to CSEA and terrorism codes in that they are reviewed[1].

There appears to be no Parliamentary control over the Secretary of State’s actions in respect of public safety or national security nor oversight by a competent body such as the National Police Chiefs Council or Directors of Public Health for public safety. We suggest that Secretary of State intervention in the substance of the codes is, as a matter of principle, problematic. We do, however, recognise the importance of the Government to identify when there are national security issues that need to be addressed; this flagging of a problem is different from saying how it should be resolved, which should be a matter for OFCOM. We also think that any special intervention by the State in public speech must be limited to national security. When public safety issues become sufficiently serious to allow the Government to issue directions to a regulator (such as COVID) we suggest that they are national security issues.

The new relationship between intelligence services and OFCOM (see clause 99) is now codified but with no oversight (mundane issues like OFCOM having board members and senior staff who have undergone say Developed Vetting[2] etc would help). And also – while protecting security advice is necessary – the caveat that allows this as a reason for redacting information from reviews of codes (clause 43 (6)) does not have any oversight. Who will ensure that it is only the national security/public safety relevant content that has been legitimately removed or obscured before publication?

We suggest that the Secretary of State should not have powers to direct OFCOM on the detail of its work (such as codes). The public policy and public safety sections of Clause 40 should be deleted. The Secretary of State should be able to give high level guidance on national security issues to the regulator, but not interfere in its detailed work such as codes, guidance and enforcement strategy[3]. OFCOM should have sufficient capability to assess and discuss national security issues with the Government – such as board members with appropriate backgrounds and sufficient security clearance for key staff as well as the Chair and CEO.

More generally, the process used to make regulations now mainly requires the affirmative process. While this is an improvement on the draft Bill, it is important to note that this still does not allow Parliament the same freedom to consider the substance of the text as when matters are dealt with by primary legislation. (We have noted above, in relation to content harmful to children and content harmful to adults, that the priority content will only be identified by statutory instrument rather than listed on the face of the Bill (as for criminal matters)).

The Secretary of State also has powers to amend the Online Safety Objectives (Schedule 4, paragraph 7) – and indeed the Bill (clause 173) – by regulations too.

Overall we are pleased that there is greater use of the affirmative procedure in making of regulations but the extent of delegated law-making by the Government in the OSB remains worrying for independent regulation.

[1] Clause 43 and 40(2)-(4) https://publications.parliament.uk/pa/bills/cbill/58-02/0285/210285.pdf

[2] DV clearance can allow the sharing of intelligence material with an individual https://www.gov.uk/government/publications/united-kingdom-security-vetting-clearance-levels/national-security-vetting-clearance-levels

[3] This paragraph was amended 08/04/22 to clarify the recommendations on the Secretary of State’s powers.

The role of the state