The case for establishing a Joint Committee on Digital Regulation

Cross-party consensus has built up in recent years for a Parliamentary Committee on Digital Regulation to be set up. This article summarises the background, scopes the role and remit of such a Committee and sets out some of the practicalities related to establishing it.

Recent debates in relation to the first set of Online Safety Act (OSA) regulations - on categorisation thresholds - have returned to this theme, given concerns over how far Ofcom’s is taking account of Parliamentary intent in its interpretation of the legislation and implementation of the framework, as well as the failure by DSIT, in laying these first regulations, to deliver on a promise made by the previous Government to enable Parliamentary Select Committees to scrutinise draft statutory instruments (SIs) before they are laid.

As Lord Parkinson, the former Minister who made that promise for ongoing Parliamentary oversight, said in the Lords’ debate on the categorisation regulations in February this year:

In addition to making good on the promise for ongoing Parliamentary scrutiny of SIs by the relevant Committees, we firmly believe that the Government should establish a Joint Committee on Digital Regulation. This would send a strong signal to regulators working in the digital space about the importance of their ongoing and meaningful accountability to the legislature while also answering Parliament’s long-standing calls for a more formal vehicle to harness the expertise and interest in this agenda across both Houses and to build on the foundations of strong cross-party collaboration on digital regulation in recent years.

This article covers:

• The history of the calls for a new Joint Committee on digital regulation
• The current context
• The case for a Joint Committee including:
  • A brief overview of current Parliamentary scrutiny of regulators
  • Relevant policy and procedural considerations
  • Setting up a joint Committee.

In 2019, the Lords Communications Committee published a report (Regulating in a Digital World) which looked at the pace of technological change, the need for better horizon-scanning and the fragmentation of the regulatory landscape. One of its flagship recommendations was the establishment of a “Digital Authority” to coordinate regulators and give advice to Government on changes in regulation along with a Joint Committee to mirror its remit: “The combined force of the Digital Authority and the joint committee will bring a new consistency and urgency to regulation.”

The then Government did not accept either recommendation. It said that establishing a new Committee was a matter for Parliament but noted in relation to the Digital Authority proposal that it was “considering potential overlaps between new regulatory functions”. In July 2020, the Digital Regulation Cooperation Forum (DRCF) was announced - bringing together the Information Commissioner’s Office (ICO), the Competition and Markets Authority (CMA) and Ofcom - but it was not a statutory body, nor did it have decision-making powers.

In 2021, the Lords Communications and Digital Committee undertook a follow-up inquiry to its 2019 work and produced a report (Digital Regulation: Joined up and accountable?) which repeated its previous calls for a joint committee - “no single select committee has a remit to focus on digital regulation across Government departments and industry sectors. This is a significant gap in parliamentary oversight” - and set out suggestions for its remit:

• To scrutinise the effectiveness and appropriateness of regulators’ exercise of their statutory powers in relation to the digital world, particularly in the case of broad or novel powers—such as in relation to online safety—as well as relevant secondary legislation
• To assess the coherence of regulators’ work and their coordinated horizon scanning through scrutiny of the DRCF if, as we recommend, it is put on a statutory footing as the ‘Digital Regulation Board’
• To scrutinise the effectiveness of the Government’s cross-departmental work on digital regulation
• To make recommendations on where regulators’ powers need to be amended.

The Committee also recommended that the DRCF - which the Financial Conduct Authority (FCA) by then had also joined - be “placed on a statutory footing, with the power to resolve conflicts by directing its members” and that “statutory duties be introduced on regulators in the DRCF to cooperate and consult with each other, allowing them to share their powers and jointly regulate.”

By this stage, the draft Online Safety Bill (OSB) had started pre-legislative scrutiny so, when the Joint Committee on that Bill reported in December 2021, it picked up the baton from the Lords and recommended a new Committee which, in relation to the OSB, it felt would provide greater democratic accountability for Ofcom and other digital regulators, scrutinise the exercise of the Secretary of State’s powers and monitor Ofcom’s independence in that regard. The Committee also felt it should look across the digital regulation landscape to improve coherence, horizon scanning and problem solving.

In its response, the then Government said that setting up such a Committee would risk duplication and cut across the work of existing Parliamentary committees. (It is undoubtedly the case that there was resistance to the proposal at the time within Parliament.) As the Institute for Government last year noted in its Parliament and Regulators report: “the proposal was opposed by the chair of the Culture, Media and Sport Committee, who felt this undercut its remit, and progress stalled when government support also fell away.”

The digital regulation landscape is more complex now than it was in 2019 and 2021. While the DRCF is on a more formal footing, with a permanent Chief Executive appointed in April 2023, it is still a “voluntary forum”, engaged in joint thematic research and horizon-scanning but with no statutory powers and no duty for its members to cooperate. Calls for a Joint Committee on digital regulation to be established have surfaced frequently in debates during the passage of multiple pieces of legislation which cover the digital landscape (the Online Safety Bill, the Digital Markets, Competition and Consumer Bill, the Media Bill, the Data (Use and Access) Bill etc).

All these Bills shared - to a greater or lesser extent - a tendency by the previous Government to increase the powers of the Secretary of State to direct the responsible regulators and limit Parliamentary accountability. Concerns over the impact of this on regulatory independence were raised frequently during the passage of these Bills - particularly in the Lords - strengthening the calls for greater democratic accountability and scrutiny and further justifying a new Joint Committee to provide the focus for this.

Current scrutiny of digital regulators and regulation

This is patchy, not least as the interests of digital regulators and the sectors they oversee span much more than the remits of the lead Government departments to whom they formally report. For example:

• Ofcom’s work has historically been scrutinised by the DCMS Select Committee, though - with the formation of the Department of Science, Innovation and Technology (DSIT), which has responsibility for the online safety regime - the Science, Innovation and Technology Committee now has the lead interest. As we have seen, the Lords Communications and Digital Committee takes a keen interest in this topic and frequently calls Ofcom, along with its counterparts in the DRCF, to inquiry sessions.
• The FCA reports into the Treasury Select Committee and the CMA into the Business and Trade Committee, mirroring their Whitehall responsibilities.
• The oversight of the Information Commissioner’s Office is less clear cut; the DCMS Select Committee last held an inquiry into its work in 2019 but a recent Institute for Government report states that it now reports into the Science and Technology Committee, and DSIT is now its sponsor Department.

Many other Parliamentary committees have ongoing interests in regulation - a full list is provided in the last year’s IfG report(p21-22); those notable for their active interests in digital regulation specifically include the House of Lords Industry and Regulators Committee and the Public Accounts Committee, which held an inquiry last year into Ofcom’s preparedness for online safety regulation.

Within the previous Parliament’s Select Committee set up, there was no imperative - outside thematic inquiries, such as those undertaken by the Lords Comms and Digital Committee - for individual Select Committees to take a holistic view of the digital regulation landscape. They already have heavy workloads and lack the capacity to run broad cross-cutting inquiries, undertake horizon-scanning or run narrower deep-dives into specific areas of regulatory concern.

Nor do they have within their remit a responsibility to scrutinise the implementation of existing regulatory regimes, such as reviewing secondary legislation or the relationships between the executive and the independent regulators. The role of Parliament in the ongoing scrutiny of the implementation of the Online Safety Act was of much concern in the Lords but, in the absence of a formal route for this to be delivered, Peers had to take on trust the commitment from the then Government that they would be actively consulted at key points in the implementation timeline. As we have noted above, this failed at the first hurdle, with the relevant Committees only receiving the first set of regulations one working day before they were laid.

Relevant policy and procedural considerations

The scope set out by the Lords Comms and Digital Committee in 2021 (above) remains a strong starting point, encompassing scrutiny of decision-making, accountability and independence as well as a forward-looking function to identify gaps in either regulatory or Government coordination and coherence and/or make policy recommendations to Government. A Joint Committee, bringing in the expertise and institutional memory that sits in the Lords, remains a strong model and had significant cross-party support in both Houses from those involved in the passage of the Online Safety Act.

Other related considerations to take into account, at the time of establishing a Joint Committee, include the status of the DRCF and whether this should be put on a statutory footing; cross-governmental responsibility for AI, especially in the light of the post-election Machinery of Government moveof data and AI units into DSIT; and the most appropriate form of oversight for the Government’s programme of work to deliver the King’s Speech commitment to bring in “appropriate legislation” on AI.

Setting up a Joint Committee

While it is within Parliament’s gift to set up Committees, it relies on the backing of the Government of the day to ensure that it receives Parliamentary approval. Select Committees are reconstituted after every General Election for the whole Parliamentary period but the current Government decided not to create a new Joint Committee last July, when the other Select Committees were set up.

Setting up Committees is done via Standing Orders. Unless otherwise specified, a Select Committee is established as a permanent body of the House, which will exist indefinitely unless and until Standing Orders are amended again to abolish it. A time-limited Select Committee may be established by a Temporary Standing Order; for example, the Women and Equalities Committee was originally set up as a “trial” for one Parliament only. The relevant Standing Order must specify what the House wishes the Select Committee to do and what powers it grants it to carry out its task(s).