A very poor show

Politics is a funny old business. You cannot judge important parts of it by exactly the same rules or standards which apply in a great many other walks of life. I said “parts” not “all”.

How else are we to explain what is going on right now with the final contenders for the leadership of the Conservative Party? 

Either Rishi Sunak or Liz Truss will be our next Prime Minister. They have been tearing lumps out of each other while at the same time criticising fundamental aspects of policies which, at least ostensibly, only weeks ago both fully supported because both were senior members of the Government which had formulated and promoted them. I mention how to manage the economy as but one example.

Against that background maybe I should not be so surprised that the protection of children on the internet has become collateral damage in this larger war. The question now is how soon can we repair and limit that damage, getting things back on track? 

But how did we get here in the first place? 

During John Major’s tenure the police, public and media registered the first real intimations of the internet being a threat to children. In 1996 the Internet Watch Foundation was established. It enjoyed all-party support. Still does.

However, the internet truly burst on to the domestic scene as a mass consumer phenomenom during the Blair-Brown years.  An understanding of a much wider range of dangers to children began to emerge. In 2001 the Blair Government became the first in the world to establish a national, Ministerial-level initiative to look at what should be done across a broad front. There were no text books available to act as a guide.

Helpfully, policy continued to be conducted on a bi-partisan basis. A Conservative MP  was even invited to be a member of the original Home Secretary’s Task Force on Child Protection on the Internet.  At this point and for some time to come, without question the UK Government was not a global leader. It was the global leader.

2010 General Election, David Cameron, Nick Clegg and Reg Bailey

The 2010 Conservative Manifesto made no direct reference to online safety for children although in the run up to Election Day David Cameron did engage with various aspects of it in speeches, particulary after Mumsnet and others raised the issue of the sale of sexualised clothing for children.

Almost as soon as he was elected, Cameron appointed Reg Bailey to look into the whole field. Less than 12 months later, in June 2011 “Letting Children be Children” appeared.

Recognising the internet was now an integral part of children’s lives and building on Professor Tanya Byron’s  2008 report for Gordon Brown, Bailey’s document contained many excellent recommendations in respect of the online world. Cameron endorsed it in full but, according to Tory insiders, some of the more radical proposals fell by the wayside because there was opposition from the Liberal Democrats, the Tories’ Coalition partner. Significant forward movement stalled.  Ahem, two Liberal Democrats from that era subsequently went on to enjoy major careers with Facebook. Nick Clegg is still there. His predecessor in his Sheffield seat, and with Facebook, was Richard Allan. 

2015 General Election, David Cameron and Theresa May

Children’s groups sensed the changing attitudes towards and growing awareness of online child safety, particularly among Conservatives, so we stepped up our work with politicians. In 2013 an All-Party group of mainly women Parliamentarians led by the brilliant Claire Perry produced a report entitled the “Independent Enquiry into Online Child Protection”. This led to a committment appearing in the 2015 Tory Manifesto:

….we will stop children’s exposure to harmful sexualised content online, by requiring age verification for access to all sites containing pornographic material….

Free of the constraints imposed by the Liberal Democrats, the Tory majority Government was as good as its word. Age verification for pornography sites became law in the form of Part 3 of the Digital Economy Act, 2017.  It received Royal Assent in April of that year. Only the Liberal Democrats expressed doubts or reservations but by then they were greatly reduced in number, were no  longer part of the Government, so had no real impact because all the other parties were on board.

By now Theresa May was Prime Minister and she had shown herself to be every bit as committed to the project as Cameron had been. 

The regulator appointed under the 2017 Act pressed ahead, consulting on and preparing the regulations necessary to give effect to the provisions of Part 3. These regulations were all presented to and approved by Parliament.

The porn industry was ready to go. The age verification service providers were ready to go. But for a mistake made by civil servants (they failed to notify certain provisions in time to  the relevant supervisory body so the clock was set back to zero) this aspect of policy would almost certainly have been up and running long ago. It never happened. See below.

Meanwhile, in October 2017 a Green Paper on  “Internet Safety Strategy” appeared.  Pornography having been “dealt with”  by Part 3, the Green Paper addressed a broader range of issues facing children online. Crucially, it acknowledged the internet was not just a source of threats, it was also potentially a source of enormous opportunities.

2019 onwards and Boris

On 24th July 2019 Boris Johnson replaced Theresa May as Prime Minister. More inactivity ensued. Sadly, in this instance, not enough inactivity.

In an almost unique Parliamentary volte-face, in respect of Part 3 of the Digital Economy Act 2017, when all that was left was for the Secretary of State to name a commencement date, at the very last minute, on 16th October 2019, the Secretary of State, Nicky Morgan,  instead announced to an astonished House of Commons there would be no commencement date. The Government had changed its mind. Piggy-backing on the continuing 2017 Green Paper processes, the Government now  said it intended to repeal Part 3 and bring back “another and better Bill”

Few people in politics think Boris’s professed  belief in the need for a “better Bill” had anything to do with it. At the time, all he wanted was to get Parliament to agree to a dissolution so he could have a General Election in order to “get Brexit done”.   To win that election the so-called Red Wall seats were crucial and since he did not know when the election might happen it was entirely possible, if things went ahead as scheduled, the new controls on porn could have kicked-in in the run up to the Big Day. How would that go down in the West Midlands and Bishop Auckland? Boris the anti-porn guy? Nah. Best take no chances. Just pull it. Don’t say “kill it”. Say we’ll make it “better”. On such political whimsies are children’s lives cast aside.  If he played his cards right and with any luck, Boris might even draw Labour out into a culture wars argument about porn. On this at least he did not succeed.

The 2017 Green Paper was therefore the genesis of what finally became the Online Safety Bill of 2022.  A five-year wait that was filled with multiple consultations, submissions of evidence and hearings, another White Paper, and so on. The legislative history is set out in a note published by the House of Commons Library.

But first….

A Joint Committee of both Houses

Even against this background of extensive and protracted consultations there was still one more step to be taken before the law-making got going.

The first version of the draft Online Safety Bill appeared on 12th May, 2021. It was immediately referred to a Joint Committee of both Houses of Parliament, a procedure normally used where a Bill is of great complexity or importance and there is thought to be considerable scope for wide or all-Party agreement. It generally helps speed the Bill through the legislative stages.

Through yet more consultations, hearings and submissions of evidence, a Joint Committee gives stakeholders another chance to influence the content of the version of the Bill that will eventually be laid before Parliament.

The unanimously agreed Joint Committee report  came out on 14th December, 2021. The Bill was presented to the House of Commons for its First Reading on 17th March, 2022.  Things were in motion at last.

The defenestration of Boris and more delay

If it had not been for the sudden resignation of Boris the Online Safety Bill 2022 would have completed its passage through the House of Commons last month, on or about 20th, and would now be sitting in the fridge waiting to start its journey through the House of Lords at the beginning of September. One cannot say it would have been“oven ready” but  definitely it would have been “fridge ready”.

In theory the Bill could still start in the Lords in September, even if it was later in September, as the House of Commons still has one last day to go on the Bill. But it won’t happen. Why? Because both of the candidates for the Tory Leadership say they want to “look at it again”.

Admittedly both have also said they remain committed to what they see as the core child protection elements of the Bill but after all this time, after this history, all the wiggles, Manifestoes, twists, turns and delays, you have to wonder…

And we have to recognise, for the first time ever, we are on the edge of seeing online child protection ceasing to be a matter which is conducted along broadly non-partisan lines. That is a great shame. Why is this happening? Because a narrow section of  the Conservative Party has seized on the opportunity presented by their internal leadership election to have another go in relation to arguments they failed to win when the Bill was being considered through the lengthier, conventional processes. 

Moreover, the delay to which all of these shenanigans gave birth allowed a great many other interest groups to pile in, Ministers conceded, anything for a quiet life,  backbenchers took up their diverse causes thus bloating the Bill into something of a Christmas Tree. Most of the amendments now down have been put there by the Government – to its own Bill. Governments amending their own Bills as they go through   is not unusual but it is rare for it to happen on this scale. As I said at the beginning of this blog, politics is a funny old business.  I suspect in years to come the experience of the Online Safety Bill will be presented at the Civil Service Staff College as an example of the worst possible way of making policy.

There was every prospect the Bill would have received Royal Assent by the end of this calendar year thus empowering the new regulator, Ofcom, to begin the gargantuan task of drawing up the regulations which would put flesh on the bones.

The children’s lobby was very dissatisfied with even this timescale because it would inevitably mean important bits of the new law would not actually start to be implemented and enforced until 2025, perhaps even later. Given the delays we had already been forced to live with this was far from satisfactory. 5 years is a long time in the life of a child. 10 years is more than an entire generation of children.  

Reinvigorate Part 3?

If there is to be “another look” in the Commons before it goes to the Lords we face yet more uncertainty and delay.

Luckily, for at least one part of the Bill  – addressing children’s access to pornography sites- there is a relatively simple answer. Part 3 of the Digital Economy Act 2017 has not been repealed. It is still law. The Regulations were and remain ready. “All” that is required is for the Government to designate Ofcom as the regulator and things can at least start moving. If there are any tweaks or if there is any finessing they think is necessary then this can happen once the Online Safety Bill recommences. Maybe that’s a “bit messy”, but after all that has passed I think we can live with a small amount of “messy”.

Is the Information Commissioner awake?

Conscious of the slow rate of progress, on 30th November, 2021 I had written to the Information Commissioner asking her to intervene at least in respect of porn sites which were unlawfully processing children’s data on a substantial scale. She declined, inventing a wholly novel concept hitherto and still unknown to law. She said porn sites constituted a “content harm” not a “data processing harm” therefore she was impotent. Her successor concurred pleading, inter alia, the imminent arrival of the Online Safety Bill. It would deal with everything.  Hmm. Maybe the ICO will now reconsider?