The Online Safety Bill: what's next?
On Monday the House of Commons at last returned to the Online Safety Bill, but there will be major changes before it becomes law
(Note: this is not an analysis of the content of the Online Safety Bill. It would take a much longer essay, and I’m not an expert on the subject matter. What I do want to do is explain where we’ve come from, where we are and where we’re going.)
The Online Safety Bill has not had an untroubled life so far. A draft version of the bill, published in May 2021, was sent to a committee of both House of Parliament in July last year. The committee, comprising six MPs and six peers, was chaired by Damian Collins (Con, Folkestone and Hythe), previously chair of the House of Commons digital, culture, media and sport committee and someone with a long-standing interest in digital regulation. The committee worked reasonably quickly, by joint committee standards, and published its report in December, making a series of recommendations about the proposed legislation. The government issued its response to the joint committee’s report in March of this year.
The bill itself was introduced into the Commons in March 2022 under the name of the secretary of state for digital, culture, media and sport, Nadine Dorries. She had been, it is fair to say, a surprise choice for the role when Boris Johnson had reshuffled his team last year, but was an enthusiast for greater regulation of the internet; when comedian Jimmy Carr had made a very controversial joke about the Holocaust in a Netflix special in February, the culture secretary was firm:
We are looking at legislation via the Media Bill which would bring into scope those comments from other video on-demand streaming outlets like Netflix. So it’s interesting that we’re already looking at future legislation to bring into scope those sort of comments.
The bill was debated at second reading (its first formal scrutiny by the House) in April. It was a rather cramped and rushed debate, with virtually no time for backbench speeches, as it did not start until 7.36 pm on a Tuesday evening.
(A disaster was narrowly averted: the junior minister winding up the debate, Chris Philp, ran very close to the time limit and had he not allowed enough time for the question to be put, he would have “talked out” his own bill: that is, the time limit would have expired while debate was still going on and the bill would not have progressed further. Ministers need to speak to whips and clerks and make sure they understand how procedure works.)
However, the bill was given a second reading without a division. Its accompanying programme motion was agreed to send it to a public bill committee for detailed scrutiny, and the government also tabled a carry-over motion. This allows a bill to be carried over from one session of parliament to the next; without such a device, any bill which has not received Royal Assent by the end of the session is lost. With prorogation, which ends the session, expected within weeks, it was obvious that the bill would need to spill into the 2022-23 session if it was to become law.
The Online Safety Bill was reintroduced to the Commons the day after the Queen’s Speech on 11 May 2022. It then progressed to line-by-line scrutiny in a public bill committee under the chairmanship of Sir Roger Gale and Christina Rees, beginning in May and concluding towards the end of June. The report stage began on 12 July, but a new programme motion was introduced to allow more time for debate, extending the remaining stages of the bill from one day to two. The first day went ahead as scheduled, but the date of the second, and concluding, day was deferred amid mounting controversy over the bill’s contents. Some Members felt that the decisions reached in committee should be reopened, an unusual step in the legislative process, and as first Boris Johnson’s then Liz Truss’s premierships collapsed, the bill was pushed to the back of the collective mind.
At the end of November, with Rishi Sunak now settled in Downing Street and attempts being made—with partial success, it is fair to say—to restore calm and order to the government, the leader of the House, Penny Mordaunt, finally confirmed that the second day of consideration would take place on Monday 5 December. Mordaunt’s shadow, Thangham Debbonaire, made some political hay as the announcement was issued.
Now, the Bill was designed to deal with legal but harmful content and self harm and suicide and racist content. So why is the Government trying to take this out now? If the Bill doesn’t come back soon, it risks falling entirely, it will run into the end of the session. The Leader knows there’s no option to carry over in those circumstances. So, will we have third reading on Monday 5? Will it come back to the Commons in time to finish remaining stages before the end of Parliament? Will she guarantee there will be enough time?
Mordaunt, who can stonewall with extraordinary conviction and propriety, did not rise to the bait.
With regard to other legislation—the Levelling Up Bill and the Online Safety Bill—I will be announcing those in the usual way. They will still be making progress through the House. I hope members opposite will support these important Bills.
But it was evident that there was turmoil behind the scenes. In part, the bill was falling prey to age: legislation which is badly delayed, especially when it deals with an area as quickly moving as digital regulation, can grow stale and lose its purpose. The government had published a white paper on online harms as far back as April 2019—when Theresa May was still prime minister, it is worth noting—and the long and painful progress to legislation had allowed doubts to creep in, divisions to widen and positions to harden.
It would have been understandable if Rishi Sunak, and his culture secretary Michelle Donelan, had simply called it quits. The bill was a controversial mess, it has to be passed by the end of the session and it has yet even to be considered by the House of Lords. It is likely that the 2022-23 session will end in April or early May, so time is of the essence, and, of course, the House of Lords does not have timetabling of consideration in the same way as the Commons. If their Lordships are feeling truculent, it will not require very much effort to kill the bill completely.
However, the decision was taken to press on. The culture secretary spoke out about the responsibility of social media companies to protect children and promised that the bill would include important measures in that regard, then later added that content which encouraged self-harm in children would be banned by new legislation. However, the government admitted that an attempt to identify online material which was “legal but harmful” would not be taken forward. Clearly, the final shape of the bill was still a moving target in Whitehall.
So what happened when the bill came back to the House on Monday? It was a messy business. A third programme motion allowed the debate on some parts of the bill to proceed as planned, and much of the content was agreed in its final form before going to the Lords. However, a fourth programme motion (below) then allowed the House to send some parts of the bill back to a public bill committee where it could be further amended, more provisions inserted or taken out. That committee now has to conclude its business on Thursday 15 December.
Once the bill is effectively reconstructed after the additional PBC stage, it will then have a final “remaining stages” (report stage and third reading) at which the House of Commons will (the government hopes) agree its final text and then send it to the upper house.
So that, briefly, is the story of the Online Harms Bill so far. It has been a stop-and-start process, with changes being made at unusual stages, but that is partly a reflection of, firstly, the political controversy around the issue of digital regulation and the protection of free speech, and, secondly, an exceptionally volatile year in the Conservative Party, with two leaders being jettisoned in a matter of weeks and a third prime minister squeaking to victory to lead a fractious organisation.
For those who are heavily invested in the content of the bill, the pressing question is, will it become law? It is not easy to predict. Even with a fair wind, it cannot realistically be introduced into the House of Lords until after the New Year; and it must receive Royal Assent, the text agreed between both Houses, by the time of the prorogation ceremony in late April or early May. That is not very much time to pilot a controversial piece of legislation through a self-regulating House which is a soi disant “house of experts”. Anyone who watches proceedings in the Lords will be aware that expertise can sometimes seem to take quite a length of time to bring to bear in full. The government’s business managers have their hands full, and it may all come down to the annual period of frantic parliamentary ping-pong in April.
Final advice? Don’t put large sums of money on seeing an Online Harms Act 2023 emerge. It’s very much in the balance.