Criminal Justice Committee

Meeting date: Wednesday, June 21, 2023

Official Report 572KB pdf

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Online Safety Bill

Our next item of business is consideration of a supplementary legislative consent memorandum on the Online Safety Bill. I am very pleased to welcome to the meeting the Minister for Social Care, Mental Wellbeing and Sport, Maree Todd, and her Scottish Government officials. Hilary Third is head of self-harm policy and distress interventions—mental health; and Katy Richards is a solicitor in the legal directorate.

I refer members to paper 2.

I invite the minister to make some opening remarks on the supplementary LCM, after which we will move to questions.

Thank you for the opportunity to meet the committee today. I will take a few minutes to outline what I will refer to as the self-harm amendment, which has triggered the requirement for a legislative consent motion, and explain why the Scottish Government is recommending consent.

The committee has previously considered an LCM on the Online Safety Bill. The self-harm amendment creates an offence of communicating material that could encourage another person to engage in serious self-harm. The proposed penalties on summary conviction are imprisonment for a term not exceeding 12 months or a fine, or both. On indictment conviction, the proposed penalties are imprisonment for a term not exceeding five years or a fine, or both.

As members are aware, self-harm is a complex and sensitive issue. For many people, it is a response to emotional distress. It is often hidden and, although the data is quite poor, there is evidence that it is increasing, particularly among young people. Although we know that self-harm can be a way of managing distress, it also has the potential to cause serious physical and psychological damage. Furthermore, we know that self-harm can be a predictor for future suicide risk.

The Scottish Government is already taking strong action to improve support and care for people who have self-harmed. For example, we are investing in specialist support and working in partnership with people with lived experience to develop a new self-harm strategy and action plan, which will be published later this year.

We recognise that some really helpful information and support are available online. However, people could also encounter significant risks when they are looking for help online. That can expose people who are already vulnerable to harmful and malicious content and result in more serious injury—and perhaps even suicide.

Since late 2022, the Scottish Government has engaged extensively with a range of organisations, and directly with people with their own experience of self-harm, on the potential implications of the proposed offence. There is consensus that the offence will bolster online protections and help to prevent the risk of serious self-harm and potential suicide deaths.

Some stakeholders have questioned whether the offence could criminalise vulnerable people who communicate about their experiences of self-harm with peers online as a way of providing or receiving support. The UK Government’s position, with which I agree, is that the offence should capture only the most serious encouragement of self-harm. To that end, the amendment seeks to define the scope of the offence narrowly, with a high threshold to prosecute acts only if they could result in serious harm and where there is a deliberate intention to encourage or assist that harm.

With that in mind, it is the Scottish Government’s view that the new offence will ensure that strong action can be taken to prosecute people who share material that is intended to encourage others to self-harm. It will act as a deterrent to people communicating harmful or malicious messages in the first place. Extending the offence to Scotland will therefore strengthen protections for people online and ensure that the internet is a safer place for anybody, and in particular for people who are seeking mental health or self-harm support.

In closing, I will make three points in support of the proposed amendment. First, the Scottish Government recognises the need to balance creating a safe environment for people who are at risk of self-harm with facilitating non-stigmatising, compassionate and effective support, which might include online support. We consider that the amendment sits comfortably with those dual aims and that it aligns very well with our ambitious approach to self-harm.

Secondly, on balance, we consider that there is significant value in clarifying the legal framework for prosecuting and deterring communications that encourage acts of self-harm in a consistent way across the UK by extending the offence to Scotland.

Thirdly, we consider that extending the offence to Scotland will act as a deterrent and provide a robust means of prosecuting deliberate acts of communicating material that is intended to encourage self-harm.

I hope that the committee supports our view that the legislative consent motion is necessary. I would be happy to deal with any questions.

Thank you very much, minister. That was a very helpful overview.

We will now move to questions. I will ask the first one. Do we understand what the scale of the problem is at the moment in the UK, but also with reference to Scotland? I imagine that it is quite difficult to measure it, although we know that it is escalating. Are there any indicators of the scale of the problem?

Secondly, will you say a wee bit about the challenges that we might face in applying the new legislation?

I appreciate that those are quite big questions, but I would be interested to know the answers to them, given the online sphere that we are looking at.

Hilary Third might want to say a little more about self-harm. Self-harm is quite hidden, and it is very hard to get reliable data on its prevalence throughout the population, even in Scotland, where we are very keen on improving in that area. It is quite hard to know how common the condition is, and how many people who self-harm access information on the internet that might encourage them to harm themselves more or more dangerously is quite unknown.

However, we hear anecdotal evidence. We think that there has been an increase in self-harm among young people, but we do not know whether that is a true rise or whether there has been an increase because the stigma has been removed and people are talking about it more. Young people live online. They are innately able to navigate that space; it is their space much more than it is older people’s space. It is therefore important that we are ready and prepared for the shift in behaviour.

On how the offence will be prosecuted, the bill has been carefully drafted to ensure that the threshold is narrow so that it does not capture people who are not engaging in criminal behaviour. Much of the aim of the bill is to discourage such behaviour and to make it possible to police it without ever having to prosecute it, as is the case with much criminal legislation. We want to shift the culture so that the behaviour does not happen in the first place rather than having to prosecute the offences once they have occurred.

The minister has covered most of the main points thoroughly. The data sources are not robust because achieving that would require people to attend hospital or general practitioner appointments, for example, and disclose their self-harm. Very often, the behaviour is hidden, and people do not seek medical attention. In addition, the behaviour is very stigmatised, which means that people may be unlikely to seek help. The work that we have done in looking at community sources suggests that self-harm is far more widespread than the quantitative data suggest and that it could be growing, particularly in some groups.

Absolutely. As the minister said, one of the important areas of work is the preventative work that is being done. I suppose that prevention and intervention are absolutely key.

Yes. We are very focused on early intervention and prevention in the mental health portfolio. That is very much where our focus lies. As I have said, we are launching a mental health strategy in the next couple of weeks. We will also launch a specific self-harm strategy later in the year. I am keen to say that it is world leading; it is certainly innovative. It is not common for countries to recognise the challenge that self-harm presents and produce strategies to tackle it. It is not a well-recognised issue. It is hidden and stigmatised, and we are really trying to shift the balance of that in Scotland.

A number of members want to come in. Jamie Greene will be first.

Thank you, convener. [Interruption.] We are getting quite a lot of feedback.

My questions are perhaps technical ones rather than wider policy ones, minister. Thanks to amendments that were passed at the committee stage in the House of Lords, clauses 165 and 166 of the bill state that the new offence can be committed where a relevant act is committed outside the UK by a person who is habitually resident in the UK or by a person who is a body incorporated or constituted under UK law. I am keen to explore what effect that has on Scots law and prosecution in Scotland.

Someone can be habitually resident in different parts of the UK, so would they be prosecuted under the bill in England and Wales or in Scotland? I will not name any particular social media company, but you can use your imagination. If somebody who is accountable as a corporate officer and therefore liable under that parameter habitually resides in Edinburgh, for example, but the company is registered in London, would they be prosecuted in Scotland? Would it be a lot clearer if the company was registered in Scotland and the person was resident here, although the act could be committed outside the UK—in the US, for example? It is a bit unclear how that would fall out in practice.

I think that that would depend on the circumstances of the individual case. However, your question illustrates why it is important that we have similar legislation across the UK. That is one of the reasons why we recommend consent. We recognise that the borders for the type of offence that we are talking about are not as clear cut as they might be for one that happens in real life rather than virtual life. Therefore, it is important that the legislation works across the UK.

I do not know whether Katy Richards wants to say a little bit more about that.

I am not sure that there is a huge amount more that I can say at this stage, because it will depend on the facts of each individual case. However, the clauses have been drafted to ensure that, because we are talking about an online environment, there can still be prosecutions within a relevant jurisdiction even if the offence takes place outside the jurisdiction.

We would be happy to write to the committee, to give a fuller answer if that would be helpful.

Yes. The online and technology industry is growing in Scotland, so there will be a number of people in senior management positions who ordinarily reside—or, to quote the bill, are “habitually resident”—in Scotland, and the question is whether they would be prosecuted under Scots law or English and Welsh law if the primary factor is where the person is resident, as opposed to where the company is registered or where the offence takes place. I just seek a bit of clarification on that. I know that the scenarios are hypothetical and we hope that offences will be few and far between, but it was not entirely clear from the LCM what the situation would look like.

What analysis has the Scottish Government done of the scale of companies that might fall into that category? Do we know how many large social media companies or tech companies to which the provisions are relevant have corporate headquarters in Scotland? Are most of them based elsewhere?

We do not have great data on that. As I said in answer to the convener’s first question, we do not have robust data that tells us how much self-harm is happening in Scotland. We also do not have enough data that tells us how much is being encouraged by online behaviour.

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I think that we can be confident that prosecutions would be rare. The threshold is narrow and well defined: there must be intent and deliberate pushing, and an initial warning would be given. I do not think that the amendment will lead to a large number of prosecutions.

Like much of the bill, the amendment tries to shift the culture to ensure that individuals and corporate organisations can be held responsible for their actions. Much of it is about shifting the culture and preventing harm rather than about enabling prosecution.

Obviously, that is at a fairly high level. I imagine that those prosecutions would be quite well publicised and would attract huge media interest, particularly when they relate to well-known online platforms.

The bill creates a specific new offence of encouraging or assisting the serious self-harm of another person. Although the offence itself is narrow, that could be interpreted quite widely. The idea of encouraging someone to self-harm strays from one territory. We commonly associate online encouragement of self-harm almost with online hate crime, in which the encouragement of self-harm is used perhaps more as an attack or an insult, rather than with something that might be perceived to be of assistance. That means that it could be quite widespread. We are all on social media and we all read those kinds of comments.

What are the implications for policing? We have heard concerns in the past that legislation is sometimes passed without a wide-ranging conversation with, for example, Police Scotland, which ultimately picks up the calls when people phone in to complain or to make allegations. What conversations have you had with cabinet secretary colleagues in other directorates about the resource implications, the scale and volume, or the public awareness raising that might go with this so that we do not suddenly and overnight create the perception of a new offence that the public will respond to?

I do not think that we run the risk of that happening, because the amendment defines the scope of the offence very narrowly and sets a high threshold. There must be an intention to encourage or assist self-harm, and that self-harm must be serious. That really is quite narrowly defined. I would not expect that to be used widely.

What we and the UK Government are aiming to do with the bill as a whole is shift the culture. I do not think that the offence can be used maliciously, because of the high thresholds. That is why we are recommending consenting to the LCM. We think that the amendment is a helpful one, and we do not foresee any risk of its being used wrongly or too widely.

That is very helpful.

Jamie Greene took part of my line of questioning, which was about the liability of corporate bodies.

I have a technical question. Ofcom will be the regulator, particularly for social media sites. You said that sites will be given an initial warning before being prosecuted and held liable. Will Ofcom provide regular—perhaps quarterly—reports about warnings and prosecutions? Will you get that information regularly?

It is a regulatory bill, and Ofcom will act as the regulator and will have powers to take action, including imposing fines, against companies that do not fulfil their new duties. Criminal action will be taken against senior managers who fail to follow information requests from Ofcom. I presume that Ofcom will regularly present information, as it currently does, so that type of information will be added to its regular reports. Those reports are made to the UK Government rather than the Scottish Parliament, although we should, of course, be able to access that information.

My understanding is that the bill is a positive piece of legislation but that there has been much criticism that it could be stronger. Either today or perhaps in writing to the committee, can the Scottish Government outline what further changes it thinks need to be made to the bill at Westminster to provide a stronger statutory framework?

Yes, we certainly could do that. The UK Parliament has had extensive engagement with stakeholders, including Scottish stakeholders, who are content with this particular amendment. There might be concerns about the Online Safety Bill more widely—people might want it to go further than it does—but our stakeholders in Scotland are particularly content with this amendment.

As you might imagine, people with lived experience were concerned that the bill might, as I said in my opening statement, criminalise people who were simply sharing their stories in order to seek or provide support. We have found that the UK Government has listened very carefully to those concerns, and the amendment has been crafted well to land in the right place with the appropriate balance and proportionality. Hilary Third might want to comment.

Ministers have written to the UK Government on a number of occasions—most recently, the First Minister wrote to the UK Government earlier this month—with observations about the broader bill. That is probably outside the scope of today’s conversations, but I presume that we could share that information if it is of interest to the committee.

Thanks. As you know, the committee has been looking at the broader issue of online child sexual exploitation and the escalating incidence of it. Our discussions have obviously incorporated the bill and its progress. We hope that we will remain sighted on the Government’s position on the bill, in particular, because the committee is very interested in that issue.

This is an incredibly important amendment, and I am delighted that the minister and the Scottish Government are taking the matter so seriously and emphasising prevention and culture change. That is a really positive way forward.

Is the UK Government planning to evaluate how the legislation is working? I am sorry if I have missed that in the notes.

I imagine that that would be part of the UK Government’s normal post-legislative scrutiny process.

As with the Economic Crime and Corporate Transparency Bill, it is good to see both Governments working so effectively and constructively together.

Minister, you spoke about the world-leading self-harm strategy. You were reluctant to call it that, but I see that the document does call it that—

It is not out yet.

You are being modest. I know that you cannot go into detail just now—I would not expect you to—but can you at least indicate whether it might include a legislative element?

The strategy is more about shifting practice and culture and recognising, first, that the condition exists. As I said, one of the challenges with self-harm is that it is hidden, because it is such a stigmatised behaviour, so the strategy is about shifting the culture and practices and ensuring that our health and social services—all our public services—can recognise it and give compassionate support to people who are in that situation.

That is great. Thank you.

As there are no other questions, we will, as usual, move on to our next item of business, which is consideration of any specific issues that we would like to include in our final report on the supplementary LCM. For me, it would be a case of saying that the committee very much welcomes the Scottish Government’s position. It is an important step forward, and it provides clarity. Enforcement of the legislation will perhaps not be without its challenges, but there seems to be some agreement on the important role of data and evaluation.

Would any other member like to include any specific issues in our report? If there is nothing specific, we will move on.

Do members agree that the Scottish Parliament should give its consent to the relevant provisions in the Online Safety Bill, as set out in the Scottish Government’s draft motion?

Members indicated agreement.

Are members content to delegate to me the publication of a very short factual report on the outcome of our deliberations on the LCM?

Members indicated agreement.

The issue now moves to the chamber for all members to decide on, based on our report.

I thank the minister and her officials for joining us this morning. We will have a short pause to allow the minister to leave.