Children and the internet

‘I saw in the attention economy that, in order to create as much value as possible from data… you created features of the system that were unsafe or exposing for children… They should not be working for the man in Silicon Valley.’

First, we speak to Baroness Kidron about her work to protect children online. She explains why she led the way on creating ground-breaking protections for young people. 

‘It shows you can regulate the internet’

In this interview, Baroness Kidron explains the need to carry on pressing the issues created by a lack of regulation for tech companies, and the need for a series of interventions, likening the situation to the industrial revolution and a need for 17 Factory Acts at the time.

‘We've done a lot of the work of taking a draft bill, which was really approaching one of the most difficult issues of our time and actually taking it up a level into being a pragmatic and implementable bill’

Baroness Kidron also talks about the way forward for regulating social media giants, her hopes for the Online Safety Bill and the findings of the committee she served on to scrutinise the draft law.

‘It’s one of the joys of my life to have been embraced by that community’

Baroness Kidron also talks about her experience as a filmmaker, including directing the renowned To Wong Foo, Thanks for Everything! Julie Newmar. She explains how pleased she is to see drag and its stars such as RuPaul (who appeared in the film) doing so well today.

 

The Union

 

‘It really is time that we release the trap that central government has on law-making and indeed, on spending and delivering services’

We also speak to Baroness Taylor of Bolton and Lord Dunlop this month. They are discussing the Lords Constitution Committee’s report on resetting relations across the UK’s parliaments and governments.

‘The biggest threat to the Union is people feeling they're not sharing equally in the Union's benefits and that they feel powerless to make their voices heard… We're waiting as we speak, for the government's leveling up white paper. And I think that's going to be very important and it needs to be ambitious.’

They also discuss the threats to the Union between England, Scotland, Wales and Northern Ireland and how the dynamic can be improved.

‘Government doesn't always understand Parliament can actually be helpful in terms of getting the legislation into the right shape’

We also talk about the importance of legislative scrutiny and the recent Police, Crime, Sentencing and Courts Bill and, keeping to a cultural theme, we discuss with Baroness Taylor what it is like to see yourself portrayed on stage.

Find out more

• Find out more about the Joint Online Safety Bill Committee
• Find out more about the Lords Constitution Committee
• Read an introduction to the Constitution Committee’s latest report

 

Transcript

 

Matt:

Welcome to the House of Lords Podcast.

Amy:

This month, we’re talking about devolution and the Union with Baroness Taylor of Bolton and Lord Dunlop.

Matt:

And we’ll also discuss the issues around protecting young people online with Baroness Kidron.

[MUSIC]

Amy:

It’s a really busy month so far in January, and you might hear the effects of that on my voice, so apologies for what I sound like in this episode. Lots of bills progressing through the Lords with late and early sittings to get everything done by the end of the session

Matt:

And the week that we are recording we have seen the resignation at the despatch box of government minister Lord Agnew of Oulton, which took everyone in the chamber by surprise, including the government frontbench, who had to take a copy of his resignation.

As is often the case with these things we look for precedent, but we don’t have to look that far back in this case. Lord Bates in 2018 resigned at the despatch box. On that occasion for being late to chamber to answer questions for which he was very apologetic and offered his resignation. In that instance Lord Bates’s resignation was not accepted by then Prime Minister Theresa May, whereas Lord Agnew has resigned from government.

Lots of changes being made to the draft laws as well, including a string of changes made to the Police, Crime, Sentencing and Courts Bill. That included some changes that members had convinced the government to make on things like extending pardons for abolished same-sex crimes and also football banning orders. It also included a number of other changes, which we’ll be discussing with Baroness Taylor and Lord Dunlop, who both sit on the Lords Constitution Committee.

Amy:

We’ll also be talking to them about their latest report on the future of the union between England, Scotland, Wales and Northern Ireland. Plus we hear from Baroness Taylor about what it is like seeing yourself portrayed on stage. But first up, we’re talking to Baroness Kidron about her work in the Lords to protect young people online.

Matt:

Yes, Baroness Kidron led the way on a ground-breaking change to data protection law a few years ago, plus has recently served on the joint committee on the Online Safety Bill. That’s the draft law that the government aims to tackle harmful content online and regulate the big social media companies.

 

Amy:

In a very cultural episode of the podcast, Baroness Kidron is also an award-winning film and television director, so we naturally asked her about the legacy of the renowned film about three drag queens that she made. Here’s what she had to say on that and more…

[MUSIC]

Baroness Kidron:

Hello, I'm Beeban. I'm a Crossbench member of the House of Lords, and I've been in the House of Lords since July 2012, almost a decade.

Amy:

Beeban, welcome to the podcast. You have an extensive career as a director and producer of films and television. That includes directing the BAFTA award-winning TV serialisation of Oranges Are Not the Only Fruit, the second in the Bridget Jones films, and also the renowned To Wong Foo, Thanks for Everything! Julie Newmar. You're also the architect of a change to the Data Protection Act that created ground-breaking protection for children online. Could you tell us what led you from film and TV to work protecting young people?

Baroness Kidron:

Absolutely. I had about 30 years being a film director, and I sort of had a very bizarre career that took me to Hollywood, and I did independent films, I did documentaries, and I just always found that after I'd done a feature film, I wanted to do something about the real world. And in 2011, 2012, 2013, around that time, when a smartphone became the price point that an adult would give it to a child, I noticed all the children around me just went very silent. They had their eyes on the phone instead of on the room and on each other. And I started, even before I thought about it, I started... Just picked up my camera and started making what then became a film, a documentary film called In Real Life. And it was really an exploration of what it meant for teenagers to grow up in the digital world.

Baroness Kidron:

And as I made that film, I began to understand for myself that there was a very silent but huge injustice that was being perpetrated on an entire generation of children. We were sending them off into the digital world. We were saying grow up here, but we were not recognising that they were children. So, if you treat a kid like an adult, then actually what you do is erode the privileges and protections of childhood. And that's where it all started.

Amy:

And the Age Appropriate Design Code was created by your amendment to the Data Protection Act in 2018. What was the aim of your change to that bill?

Baroness Kidron:

The reason I brought in the age appropriate design code was because I saw that in the attention economy, that in order to create as much value as possible from data, spreading it, collecting it, keeping people on, you created features of the system that were unsafe or exposing for children. So, if you're keeping them on as long as possible, you end up making them add as many friends as possible, or if you are spreading it as far as possible, you make sure that they're as public and exposed as possible. And so I saw an absolute relationship between data protection and child safety, and that was why the code is constructed as it is, and why data protection was the first approach to child safety. It's safety by design.

Amy:

And so how did the Age Appropriate Design Code come about? What's the process for, putting an amendment down on a bill? What sort of work has to go on in the background for that to happen?

Baroness Kidron:

There's a few different journeys that an amendment can go on. In this case, it was always an amendment with cross party support. So, the people who put their name behind mine came from all parties, and that was... And it was addressing a problem that was absent in the bill. I'm not going to pretend that the government embraced it, but over a period of time it was clear that it had the support of both Houses. And over a period of time it became understood what it was for. And I think because it changed how... It was a change of approach, there was no history. It wasn't like the House arguing about whether we need PHSE or SRE, which is sort of a well-worn argument. It was something.

Baroness Kidron:

So it took everybody a little time to get their heads around it. Once they did, it was finally understood, much desired, and accepted by government. And to do them credit, the minister said from the dispatch box that I could have a role in articulating what I thought should be in it and he mentioned all the things that I wanted to see. It then went to the ICO. They consulted everyone who you'd expect. They wrote a draft that was then criticized by all and sundry. They wrote another draft. And eventually when that went in front of both Houses and to the secretary of state, it was published formally and it went into law with a transition period for compliance. And that was when things really hotted up, because as soon as we were in a 12-month period to transition into law, the resources of the tech companies went into complying.

Baroness Kidron:

So suddenly we were on top of the inbox. People understood that they had to do this, developer time, creative time. And one of my favourite things is that I have been contacted by most of the biggest companies in the world who now all have had to bring in child rights expertise and do child rights impact assessments through their services. So we're talking about a new culture from where children didn't exist and we pretend they're not there, to one in which you have to think about this as you develop your product. And that is the beginning of a very positive journey. And I would actually also like to do a shout out for the ICO through this, because that's the Information Commissioner's Office, who's the regulator. They understood that this was ground-breaking. They understood that we needed to work with people to explain what it might mean.

Baroness Kidron:

And they did a number of workshops. They've got a whole piece of their website that is dedicated to information for SMEs and so on. And perhaps the last thing I should say is, since then, the Irish data commissioner has published her Irish Fundamentals, which is, more or less, the Age Appropriate Design Code, and watch this space - I'm expecting another couple in the next couple of weeks.

Amy:

We should actually perhaps just explain for anyone who doesn't perhaps know what the design code is. Could you just tell us, in a nutshell, what it's designed to do?

Baroness Kidron:

What it does is it says that, if the user is a child, that you must afford them a higher degree of privacy and therefore safety. And what that means is things like not taking data that you don't need, or that they would not expect you to take, not spreading data when it's not in a child's best interest. And I think the key things that the code did, which have really transformed approaches around the world was, first of all, it said, actually children have existing rights. They apply online. Therefore, anybody under the age of 18 is a child. You must stop pretending that 13-year-olds are adults. And the second thing it did was it gave the protection wherever the child was likely to be. So instead of endlessly trying to make CBeebies or Disney or Sesame Street safer, that actually the protections go with the children into the spaces that we know they are, whether that's YouTube or Meta or Instagram or wherever they are.

Amy:

And before the code, you said, the tech sector has, 'against all rationale, been left with all the control, but no responsibility'. It came into effect last year. Are social media companies now playing ball, in your opinion?

Baroness Kidron:

That's a difficult question because, on the one hand, everybody's absolutely knocked over by how much they've done and what's been done in the name of the code. And if I give examples like, YouTube stopped autoplay for under eighteens. Now that doesn't seem very important until you know that 70% of what you watch is offered to you by YouTube through autoplay.

Amy:

Yeah.

Baroness Kidron:

Google put Safe Search as a default for all under eighteens. Instagram and TikTok stop direct messaging of adults, stranger adults, to children, all sorts of things that make a very material difference to the experience of children online. So absolutely stunning, the changes that have been made. The second half of my answer has to be, not everyone, not good enough, there's a lot of things that they are balking at that go to the heart of their business model.

Baroness Kidron:

For example, recommending popular material, irrespective of whether it's damaging or not. And some of the things that we still want to see will, of course, fall outside of a data protection regime. So there's also a lot of requirements that we're going to have in the Online Safety Bill and beyond. And I think that what I'd like to say to people is that the Age Appropriate Design Code is hugely successful for two reasons. One is the very particular things that it has achieved, but more importantly still is it shows you can regulate the internet. Yeah? Because a lot of people are still at that kind of zero that they think we can't.

Baroness Kidron:

Secondly, I'd like to say that if you think about the Industrial Revolution, there were 17 Factory Acts. Now that's health and safety within factories. That's not also the invention of sewers and street lighting and all the regulation that went with that, or the invention of the weekend, even. There were dozens and dozens of regulatory interventions to address the building of cities that was the result of industrialisation and indeed industrialisation itself. So what I'd like people to see in the Age Appropriate Design Code is an approach, a successful approach, a proportionate approach, a product safety approach, and a very fair approach that we now must do the next 17 interventions rather than say, 'Did it solve children's relationship with the digital world?' Because the answer is painfully, no.

Matt:

Beeban, last year you served on the joint committee on the draft Online Safety Bill, a joint committee being both peers and MPs, and the committee made recommendations to improve the bill back in December last year. We're expecting the government response, hopefully in the next few weeks. What are the red line issues there for you? What are you expecting them to say?

Baroness Kidron:

The key thing, and I think I actually speak on behalf of all committee members when I say this, is the key thing we try to make clear is that our suggestions, our recommendations, were a coherent whole, that they are interdependent. It's not a pick and mix. This is not an opportunity for Secretary of State to take some sort of nice headline grabbing recommendations and say 'we listened hard.' What we looked at was the structure of the bill, and the structure of the bill had sort of strayed into being a content bill that we were all concerned was A: unenforceable; B: complex; and C: actually strayed into this area of who knows what's truth. And we drove our recommendations into making it much more like the Age Appropriate Design Code in being a systems and processes - what you must think of on behalf of your users before you roll out your product.

Baroness Kidron:

And I do make this point, that the joint committee could not have had a broader ideological spread. It was both Houses, all parties, and none, like myself, and we were unanimous across our recommendations. So I am hoping, and I believe we are hoping, that the government sees that we've done a lot of the work of taking a draft bill, which was really approaching one of the most difficult issues of our time and actually taking it up a level into being a pragmatic and implementable bill, and that they should see it as that.

Matt:

I understand it was the first joint committee you sat on. How was that experience? How different is it from sitting on a Lords committee?

Baroness Kidron:

Do you know, it was absolutely fantastic. I really enjoyed it. I cannot tell you how hard we worked. I mean, we had 11 weeks, we had an extraordinary amount of evidence, extraordinary amount of hearings. And I think that by the end we were meeting every day. So it was a sort of speed-dating with colleagues from both ends of the House, which was very, very exciting. And to see the MPs at work, and to see how seriously their constituency issues, the issues from their constituents, weighed on them was really, really interesting. And also, I think there was a deep respect from that end of the House about the immense sort of expertise that some of the Lords have built up on this issue over time. And I think that we all enjoyed it, but absolutely I did enjoy it.

Baroness Kidron:

But I think more importantly, this is a joint committee. It is a pre-legislative committee. There was an actual piece of legislation at stake, and the seriousness of our recommendations, or indeed failure to recommend, was weighed heavily. It wasn't just a statement of now, and of policy, and of something that civil servants could sort of look at over the next few years as they build out the next thing, it was a real now urgent, soon-to-be law issue at stake. And there were so many stakeholders who really put their concerns in our hands. And so the seriousness of it and the short form impact of it really weighed heavily on the committee.

Matt:

During the committee hearings, what sort of stakeholder submissions and contributions did you have? Did you speak to the social media companies themselves?

Baroness Kidron:

Yeah, absolutely. We spoke to a very broad range of stakeholders. Early on we spoke to a lot of people who have been victims of the digital world, whether it's because of their race, because they were epileptic, we heard from bereaved parents, and so on. But we also, very importantly, heard from people who were worried about freedom of speech and journalistic integrity, and any of the unintended consequences of the bill, and perhaps pointed to some of the current weaknesses of the bill.

Baroness Kidron:

And then, of course, we heard from ministers from the Civil Service, from regulators, and the tech companies. I have to say that the tech company evidence was, I think, I should say, a bit of a car crash in total because they actually hadn't done enough homework, displayed a level of... I don't know whether it's ignorance or arrogance about the impact of their services. And I think that, in particular, the committee was very struck by the lack of governance. And that was, they didn't report upwards. These issues about safety didn't have a good, clear journey to the board. And I think that that was very much underlined by Francis Haugen's testimony, because, of course, she came to see the committee and, hiding research, being disingenuous about what you do publish, and people like her being blocked when they try and improve things internally.

Baroness Kidron:

And I think that that has been... That has changed the public mood. I think the idea that they know about some of these problems and they're not dealing with them, I think that has put a lot of people on the side of the bill who perhaps were a little bit worried in the first place.

Matt:

And we are speaking only a few days after your debate on the role of social media in the deaths of young people. In that debate you spoke about the ordeals that parents have to go through to access the data of their children when they've taken their own life. Is this another area where social media companies have all the power but none of the responsibility?

Baroness Kidron:

Yeah. I mean, absolutely. I mean, it's an absolute travesty to imagine, as I set out in that debate, a recently bereaved parent having to trawl through the online world to try and find evidence about the people who murdered him. Or indeed another parent who in the days after their child died, having to go to the Genius Bar at Apple and be refused a password. And I have had quite a lot to do with bereaved parents. They've sought me out as they have tried to campaign to get access for their data. And I do not accept the defence of the tech companies, which is, 'Well, our real concern is that other users may be distressed by what's found out, or it may cause another tragedy.' That does not explain why they don't give their data to the coroner. That does not explain why the police are unable to get that data. It does not explain why it's taken four years for one UK coroner to pursue this issue. Four years for the inquest of Molly Russell to come to fruition. And I think that that block in the system has to come to an end.

Baroness Kidron:

Now I was grateful to Richard Allen, formally of Facebook, for supporting my call and for acknowledging that it is technically possible and legally should be allowed, but I actually would like colleagues to really concentrate on this question that, quite apart from the child in question, if we don't look under the hood, see what they are seeing, that means the same material, the same people, the same videos, are being algorithmically spread to other young people, looped out forever and ever and ever, and no one actually held responsible or even trying to prevent that spread. So I think the bit that I am really concerned about is that it gives the tech companies cover to spread this stuff to other young children, even while you have the heartbreak of parents who can't find closure.

Matt:

And of course, we're talking here about very, very big companies, aren't we? Worldwide companies. Something like 45% of the global population uses at least one of the Facebook products. Are social media companies too big?

Baroness Kidron:

Yeah. I mean, definitely some of them. I think we must not fall into the trap of thinking that all the harm is done by the mega companies, but definitely any company in any sector that is a monopoly and more powerful than nation-states has got to be a problem for democracy, if you believe in democracy, period. I mean, that's just a fact. But I think the other thing is that there's a supply chain issue. If you can go seamlessly from a very large company and find yourself down a hole that may be a tiny company, run by three people, but it's putting children's faces on deep-fake porn, then why are they out of scope? So that is a question that government just has not got its head around.

Baroness Kidron:

The funny thing is that there is this whole argument about proportionality. I would agree with it. But actually, it is also the case that the less you're doing wrong, the less you have to change to meet regulatory systems. And that actually, if you sort of extrapolate out and say, 'Oh, okay, we're going to make sure that food from Tesco and Sainsbury and Iceland is safe, but actually you can do any kind of poison from the corner shop, whatever. That would ... it's so preposterous. Or if you're Ford, you must have a brake, but if you're some new eBike thing, you don't need one.' These things are irrational. And I think that colleagues should just really think hard about the fact that the tech sector is now responsible for the largest amount of money in lobbying around the world.

Baroness Kidron:

And this idea of their exceptionality, rather than seeing this as basic product safety that any other business, any other sector has to deal with, is something that they put a great deal of money into. And they are now bigger than big pharma, big food, the NRA. Their lobbying money is immense. And so we've just got to hold onto this idea. These are consumer-facing products. They have to be safe for consumers. And when it comes to kids, we expect a higher level of safety, because children do not have the life experience, the cognitive development, or the emotional understanding to act in their own safety in the same way as adults.

Baroness Kidron:

So for all of those reasons, we all deserve better, and children in particular. We have an absolute, fundamental, sort of moral duty to make sure these guys design their systems to be safe, because actually, if there are 1 billion kids online in the world, all of that value, 25% of global GDP now comes from the tech sector. Well, 1 billion kids, that's a lot, a lot of money they're making on the back of children. And we decided 150 years ago in this country to take kids out of the chimneys, put them in school, give them a childhood. This is what we're doing here now. They should not be working for the man in Silicon Valley.

Amy:

And to finish up, can we just circle back to To Wong Foo for a moment. Drag has experienced a bit of a resurgence in mainstream culture in the last few years, thanks to things in part like RuPaul's Drag Race. And RuPaul appeared, of course, in To Wong Foo. Are you surprised that it took such a long time for drag culture to have such wide interest again?

Baroness Kidron:

I'm delighted to see Ru have her own show, very similar to the narrative of To Wong Foo. And I am still... Every now and again, when I'm in New York on business or talking, involved with the UN or whatever else I'm doing, I find myself in a street, and there's a bunch of drag queens that I work with at that time. And there's a sort of a big hug and kiss, and 'do you know who it is?' And it's one of the joys of my life. It's one of the joys of my life to have been embraced by that community, to have participated, and been an early adopter and understander of what this meant and, 'all power to RuPaul, say I.'

Amy:

Absolutely.

Amy:

Beeban, thank you so much for joining us on the podcast. Been really interesting, hearing all your thoughts and all your different areas of work, and I'm off to watch Drag Race.

Baroness Kidron:

[Laughs] Absolute pleasure.

[MUSIC]

Matt:

And here’s Baroness Taylor of Bolton and Lord Dunlop

[MUSIC]

Baroness Taylor:

I'm Ann Taylor, Baroness Taylor of Bolton. I've been chairing the Constitution Committee for the past few years. I'm a Labour member of the House of Lords and was previously a Member of Parliament.

Lord Dunlop:

And I'm Andrew Dunlop. I have been a Conservative member of the Constitution Committee for the last four years. And before that I was an advisor to two prime ministers and a former minister for Scotland and Northern Ireland.

Amy:

Welcome to the podcast. Thank you both for joining us. And the Lords Constitution committee of which you're both members, has called for a reset of the relationships between the governments and law-making bodies in the UK. Why are you calling for this now?

Baroness Taylor:

Well, I think it's clear that there have been some tensions between different parts of the UK in recent years. And this year, 2022, is the centenary of the UK and the Union as we know it. And so, we decided to look at what the problems were, what the issues were and what might be the way forward.

Baroness Taylor:

We've taken evidence from a wide range of people in Scotland, in Wales, in Northern Ireland, as well as in the regions of England. And we've come up with some proposals, which we think should result in the resetting of the relationship between central government and the component parts. The UK is one of, if not the most centralized countries in the whole of Europe and much more centralized than those countries we identify with. So it really is time that we release the trap that central government has on law-making and indeed, on spending and delivering services. Unless we get a different balance, we don't think that we can face the challenges for the future in terms of COVID, in terms of dealing with Brexit, in terms of climate change, de-industrialisation. There are a lot of problems there, and we believe that all the answers are not in Whitehall and Westminster.

Lord Dunlop:

Yes. I mean, I would very much agree with Ann. I think we've been through some very tumultuous years with Brexit and COVID. And I think particularly during COVID, we've seen how it's important for governments to work together, to produce effective outcomes. And I think people want to see their governments working together. And boy, do we have some big challenges and opportunities ahead of us. How do we have a public health recovery? How do we have an economic recovery? How do we deal with climate change?

Lord Dunlop:

And on top of that, the world is changing very fast with an information and technology revolution. So really, I think our report is, let's not waste time on constitutional bickering. How can we improve the relationships between the governments of this country and start delivering for the people who need help and support?

Amy:

You mentioned there, of course, Brexit and the pandemic, what would you say is the biggest threat at the moment to the Union?

Baroness Taylor:

Well, I think it's attitudinal. It's got to be that people have got to want things to succeed. So that's why we have put an emphasis on respect and cooperation and partnership. The different parts of the United Kingdom have got to respect the paths that the other parts have. And then they have got to work together in order to deliver the kind of services that are needed.

Baroness Taylor:

I think you can divide the problems into three areas. One is structural. Have we got the right organisation to deliver services? Secondly, operational within the structures we've got, are they working well? And thirdly, the political. Now the political, we're going to have political differences between governments in different parts of a country. But if you have that basic respect for the different roles that different institutions have, then you've got a better starting point than what we have at the moment, which is the over-centralisation.

Baroness Taylor:

What we found when we were taking evidence, people said 'Well, in the early days of devolution, it was a case of, oh, they you are, get on with it, devolve and forget.' And more recently we had the Prime Minister and others having a more muscular approach, saying, 'We know what the Union's about, and we'll do it this way.'

Baroness Taylor:

We're not getting out any anywhere with either of those attitudes. And it is basically the devolved institutions respecting what Whitehall and Westminster can do and vice versa. And I think there's also another dimension here in terms of English regional and local government. But the biggest problem in terms of the Union is the need for respect from different institutions.

Lord Dunlop:

Yes. And if I could just sort of add to that. I think I would encapsulate the biggest threat to the Union as being people feeling they're not sharing equally in the Union's benefits and that they feel powerless to make their voices heard. Decisions are taken kind of remotely from where they live or how they feel about their daily life. And I think a lot of the impetus behind Scottish independence and Brexit flows from those two things.

Lord Dunlop:

If you look at the places in Scotland that voted yes in 2014, places like Dundee and Glasgow, I don't think what people were feeling in those cities is very different from what people are feeling in the north of England. So I think tackling these issues can be and should be a great unifying project.

Lord Dunlop:

We're waiting as we speak, for the government's levelling up white paper. And I think that's going to be very important and it needs to be ambitious. Because, as Ann has said, over many, many years, one of the problems that's beset the country is the regional economic inequality. And that happens all over the country. And so, we need an ambitious agenda going forward, that is both long term and has cross-party support. But those are the sorts of issues that I see as being the biggest threat to the Union going forward.

Amy:

And you mentioned there Scottish independence. There's obviously been a lot of talk about a new referendum in the last year. Is a reset in the relationships enough, do you think, to keep the Union together?

Lord Dunlop:

I think on its own, what do they say, it's a necessary, but not a sufficient condition. And I definitely think a reset will help a lot.

Lord Dunlop:

Devolution is the Union alternative to independence. And it, in my view, provides the best of both worlds, significant autonomy over domestic policy for each of the nations, but also that ability to come together to share risks and resources to deal with common problems. But I've always said that I think devolution is an unfinished project. And I think what our report is about is, how do you fill the gap? And the gap is shared governance. How do you develop the mechanisms for shared governance? And I think as Ann has said, attitudes matter as much, if not more, than structures.

Lord Dunlop:

And I think we're seeing some encouraging signs, and I think it's not just about managing or accentuating differences. It's about actually, how do you learn from each other, and how do you pursue joint initiatives?

Lord Dunlop:

So in 2014, the No campaign was called 'project fear', but what we need now is 'project hope'. And really, the theme of our report is how do you build a Union of cooperation and respect? And I think that goes with the grain of public of opinion. All the evidence suggests that the public want to see governments across the United Kingdom working together. And if any of those governments show themselves unwilling to work together, then I think there's a political cost to be paid for that.

Baroness Taylor:

I'd just add in terms of what Andrew was just saying, he reminds me that when we look at COVID and what's happened in terms of cooperation on COVID, you see the best and you see the worst.

Baroness Taylor:

When COVID first struck, the First Ministers of Scotland and Wales were included in the Cobra meetings, the emergency meetings that government had, and that lasted for a few months, and that was very positive, and they felt involved.

Amy:

And two things that people may have heard about around devolution, but perhaps aren't sure exactly what it means, are the Sewel Convention and the Barnett formula. Could you just explain a little bit about what those mean and your recommendations?

Baroness Taylor:

I think people would struggle to understand the Barnett formula from the day it was was actually invented by Lord Barnett in the '70s. And I'll leave Andrew to talk about that.

[LAUGHTER]

Lord Dunlop:

I think that's what's called a hospital pass.

Baroness Taylor:

It's a hospital pass alright. In terms of the Sewel Convention, when the legislation went through on devolution, it was decided that in those areas where the devolved institutions were given powers, Westminster would not actually legislate in those areas unless there was consent from the Scottish Parliament or the Welsh Assembly, as it was, now Welsh Parliament. And it's a convention, which means it's a rule that should be followed. And for a long time, it more or less was followed with the odd hiccup.

Baroness Taylor:

Brexit has actually caused some significant problems because the UK government did everything at the last minute. There was a lot of brinkmanship. There was a lot of emergency legislation, and it was very difficult for the Scottish institutions and the Welsh to actually find time and find a level of engagement with the UK government that allowed them to give consent. The Welsh did in the end, but the Scots didn't. And it causes resentment, if you feel that you've been given powers, but actually the UK government is overriding those powers.

Baroness Taylor:

And it's not a simple area, because many of these areas are a bit messy in terms of how much the powers infringe on devolved responsibilities, but it does cause resentment. And we think that there are ways of improving this situation and maybe Parliament itself, particularly in the House of Lords, could change its procedures so that we link in more with Parliamentarians in Scotland and in Wales so that, when legislation is going through and they've got concerns, they have a direct route into Westminster. And our institutions could flag up concerns and take them on board when we are passing legislation. I think that that would help to improve confidence that the concerns that people in Scotland or in Wales might have were actually properly considered by the Westminster Parliament, not just negotiated or ignored by the Whitehall government. Barnett formula, Andrew. Come on.

[LAUGHTER]

Baroness Taylor:

... see what you think about that one.

Lord Dunlop:

Well, a bit of history here. I mean, the Barnett formula was named after Joel Barnett, who was the Labour chief secretary, I think in 1979. So that tells you that the Barnett formula has been going for over 40 years.

Lord Dunlop:

And in simple terms, it's the formula which is used to determine how the treasury allocates funding to the devolved government. And without getting into the complexity of it, and it is quite complex, basically it relates to a population share of equivalent changes to English spending. That's the simplest I can make it. There are lots of other bits to it, but that is the basic principle.

Lord Dunlop:

And I think our point in the report, that as there have been changes to how devolved governments are funded and with great devolution of tax-raising powers to those governments, they have become less reliant on the treasury block grant.

Lord Dunlop:

And in our report, we're also calling for more devolution in England, including fiscal devolution. And really, our main point is that given all of those changes, we think it is right that the Barnett formula should be reviewed to see that it is still delivering in the way it did in 1979.

Lord Dunlop:

And I think the principle that everybody agrees on is that funding should be related to need. And whatever the tax-raising powers that different parts of the country have, it's the responsibility of the UK government, the central government, to be responsible for redistribution, to make sure that no matter where you live, there is a similar level of public service, irrespective of ability to raise tax and the tax base of the area in which you live. So that's really what we're calling for.

Lord Dunlop:

Things have changed. Let's look at it again and make sure that everybody is getting the funding that they need to deliver the services that people need and want.

Matt:

The report talks about strengthening inter-parliamentary relations between the UK Parliament, Scottish and Welsh Parliaments and the Northern Ireland Assembly. In the report, you recommend an enhanced role for the Lords in both scrutinising bills that engage the Sewel Convention, which Ann kindly explained, and in facilitating inter-parliamentary relations. The question I guess is, why do you think the Lords is particularly well placed to fulfil those roles?

Baroness Taylor:

Partly because we don't have constituents who take up a very large proportion of the time of individual Members of Parliament. And so, we have perhaps a different perspective on some issues.

Baroness Taylor:

The Lords does tend to concentrate on the details in a way that the Commons doesn't always find the time for. And that's another reason. The Constitution Committee went to Wales, went to Scotland, talked to the relevant committees there. And we were finding that many of the issues that they were talking about were very similar to the ones that concern us. What is the relationship between your government and your Parliament? How much say do you have, and is it at the right time?

Baroness Taylor:

And we do have procedures. For example, on legislative consent motion, where it's flagged up with Parliamentary papers, whether legislative consent has actually been achieved. Now, that's just one little note that just skims the surface of what the issues are.

Baroness Taylor:

What we think should happen is that, if there is a problem on legislative consent for example, the relevant committee in Wales or wherever, can get in touch with the relevant committee in the House of Lords, explain the issues that are causing concern. And then that committee in the Lords can decide whether members as individuals want to bring those problems to the attention of the House as a whole.

Baroness Taylor:

And I think that it would give more reassurance on the part of other legislatures that their concerns were being heard at Westminster, where there is a joint problem and a joint potential for a solution. So I think there's a willingness there.

Baroness Taylor:

And lots of Parliaments have connections. It's strange. We have the Commonwealth Parliamentary Association. So Members of Parliament, members of the House of Lords pre-COVID would go and visit Parliaments in other parts of the world and compare problems.

Baroness Taylor:

We've got the Inter-Parliamentary Association, which is for not just Commonwealth countries, and yet we were not having the same internally within the UK. And I think it would strengthen our democracy if we all felt that we were more connected. And problems in one area are very often problems elsewhere.

Baroness Taylor:

I mean, one of the things that devolution has shown is that you can experiment. The Welsh introduced charges for plastic bags before everybody else. And that was rolled out there, and everybody else said, "Oh yeah, that's a good idea." And it works.

Baroness Taylor:

Similarly, the Scots have done things to experiment that could be picked up by the UK government. So the more interaction we have, the more we can cooperate, the more we can learn from each other. And I think that, that would strengthen our democracy overall.

Baroness Taylor:

But in terms of your basic question, why the Lords, partly because we are the Lords, and we can make the suggestions for our chamber that we hesitate about making for the House of Commons. But also because there is a very real problem in terms of time constraints on members of Parliament.

Matt:

We've touched on England. You mentioned English regionalism, fiscal devolution, levelling up. Some though suggest the answer is an English parliament. Is that something you considered in the committee's investigation?

Lord Dunlop:

Yes. I mean, we did look at it, but I think there are two basic problems. The first is that there is no evidence at all that the people of England want an English parliament, which seems a pretty big hurdle to start with.

Lord Dunlop:

I think the other, the second problem is the size of England. I mean, England represents over 80% in population, in economic terms, of the United Kingdom. And I think establishing an English parliament would really seriously risk destabilizing the whole Union. I think it would make were there such a thing, the English First Minister, more powerful than the UK Prime Minister.

Lord Dunlop:

So I think in our report, we've taken a different approach. We've looked of course, at the evidence that was provided to us about an English parliament, but we've really focused on extending English devolution. And I think what was interesting during the course of the evidence we took and the review we undertook is that there is now evidence of growing support for English devolution.

Lord Dunlop:

And that isn't a surprise because people have taken part in elections for mayors and the like, and I think people can see tangible action on the ground, and they like the look of that. And we feel that, I think as a committee, that decisions should be taken closer to the people affected by them. And that's why we have very much focused on English devolution and extending it because I think there is a link to 'your economy will grow more strongly and faster if it grows more evenly.' And it will grow more evenly if power is devolved down. That's what all the international evidence that we received as part of the inquiry told us. And we're really getting behind that idea and that proposition.

Baroness Taylor:

Yes, I totally agree. I mean, there isn't an example of a federal system of government where one element in it is over 80% of the whole. And that in itself makes it not viable.

Baroness Taylor:

In terms of English devolution and power to mayors, to regional bodies, to combined authorities, to local government, we had some really powerful evidence from the Local Government Association, from both the Conservative leader on that organization and the Labour leader. They sat together in the same room, reinforcing each other's points about how they could deliver more effectively if the whole structure was changed, if we had a framework for local government and capacity building within local government and more freedom for local government to implement some of the policy decisions that were essential.

Baroness Taylor:

And it was very interesting to see the common approach that they had and the very positive examples they were giving us, of how they have to waste money bidding for central government projects that then don't come off. When, actually, if they were in part of a better system of allocation, they'd be able to get on with job and deliver on the projects. And that was, as I say, common in both of the political parties and something that I think impressed the committee very significantly.

Matt:

Andrew, can I ask you about the Dunlop Review, which you previously conducted on behalf of the UK government, about the government's Union capability? Do you think that things have moved in the right direction since your review? I think that was in 2019. And are there any further changes you'd like to see government make?

Lord Dunlop:

Yes. I mean, I think my review was really, how do you make sure that the health of the Union is really put at the heart of policymaking within the UK government? And also, how do you change the 'Whitehall knows best' mindset?

Lord Dunlop:

And therefore my review was all about what we've been talking about today. It's about attitudes, changing attitudes. How do you achieve that cultural change within the UK government?

Lord Dunlop:

I mean, I think after my report was published, I think we went through a period, and Ann's already mentioned it, of the government going down a road of 'muscular unionism', sort of overriding the devolved governments in their areas of responsibility. And I have to say that worried me and really wasn't in line with what I was recommending in my review. But I think as time has gone on, I think the government has changed its tack and is now adopting a more cooperative and respectful approach to the devolved government.

Lord Dunlop:

And so, I'm pleased about that because that does absolutely align with what I was recommending in my report. And I think the evidence for that is, I think we detected as a committee in our inquiry that there was a renewed respect for the Sewel Convention. That will take time, and we'll be watching very closely to see that that is followed through.

Lord Dunlop:

And I think the joint agreement between the UK government and the devolved governments on a new way of managing intergovernmental relations is also a very positive sign. But I think the key here is follow through.

Lord Dunlop:

And I think what we make clear in our report that the House of Lords, the Constitution Committee, and we hope equivalent committees in the House of Commons, will hold the government's feet to the fire. And that is the other key theme of both my report and the Constitution Committee report. And that is improving the transparency and scrutiny of this activity. And that is a big part of the recommendation I made. And it's a big part of the recommendations that the Constitution Committee makes. Because I think when you shine a light into all of this, it's more likely that the various governments will start to behave in a more cooperative, collaborative way. Some of the behaviours we've seen in the past might be a thing of the past. And I certainly hope so.

Baroness Taylor:

And I think that what Andrew has outlined in terms of intergovernmental relationships. And the need for greater transparency also spills over into parliamentary cooperation. If you're going to have the light shining more, as Andrew says, then you can have inter-parliamentary discussion of what's actually gone on in those intergovernmental meetings. And I think that that is helpful. So that, yeah, I think Andrew's right. There are chinks of light, but I think there's some way to go before the spirit of Andrew's recommendations are actually carried through.

Matt:

It would be remiss of us not to ask you about the Police, Crime, Sentencing and Courts Bill, which I know the committee looked at last September, given that this week there was a record number of government defeats on the bill.

Matt:

So, I mean, the committee, I think reviewed the bill last September, as I say, and warned that the size and complexity of the bill made it difficult for effective parliamentary scrutiny. And obviously, as I say, the government was defeated a number of times on that. Was that inevitable? Did you see that coming?

Baroness Taylor:

I think there was a degree of inevitability about it, and we were very critical, and we've been critical on other bills. But on this particular bill, it wasn't just the bill, as it was originally looked at last September. The extra additional, very significant problem was that whole chunks of legislation and provisions were being put in at the last minute that hadn't been looked at by the Commons at all.

Baroness Taylor:

And therefore we were presented almost with a supplementary bill, piggybacking on the basic bill. And that's why there was so much disquiet about that. And that's why there were so many votes. But really that sort of brings up the other side of respect and cooperation.

Baroness Taylor:

We have separation of powers in this country. And Parliament has a role and the executive has a role, and you've got to have respect for both roles.

Baroness Taylor:

So Parliament has got to respect the fact that the government makes decisions, but it has to be accountable to Parliament. But when it comes to legislation, governments need to reassess, I think, their approach to legislation. Because too often, Parliament is not given the information that it requires to fully go into the implications of the changes that the government wants to make.

Baroness Taylor:

That was there in mega way on Monday. But I think it's a creeping trend that Parliament itself has got to be very careful of. And the Constitution Committee has expressed concerns about this in the past. And if it goes on, I think they will be expressing very significant concerns in the future.

Lord Dunlop:

I think the only thing I would add is, when I was a government minister, I always felt that departments really didn't fully understand how the House of Lords worked, and its legislative teams were very much geared to the House of Commons. But actually, the House of Lords can have a big impact on the legislative process.

Lord Dunlop:

And I did find it strange that these new clauses and package of clauses was brought in at the last minute, because it seemed to me a very strange legislative strategy. The government doesn't have a majority in the House of Lords. And the way they've done it, the House of Lords has taken out a lot of those clauses. And as a result, for technical reasons, the House of Commons can't put them back in again. So it seemed to me, a very self-defeating legislative strategy by the government. And as a supporter of the government, I found that a bit strange. That's the only other-

Baroness Taylor:

Can I just pick up on that, Andrew? Because I think from my time in government as well, I think government doesn't always understand Parliament can actually be helpful in terms of getting the legislation into the right shape.

Baroness Taylor:

Government tends to think, "This is our legislation, accept it and get it through." Whereas sometimes some of the issues, if you have pre-leg scrutiny, a committee looking at the legislation early on, then that committee can often highlight problems that can be sorted at an early stage. Whereas if you railroad the legislation through, the problems come later down the line, and you've got a whole panoply of difficulties later on.

Baroness Taylor:

So I think that we need to get government ministers understanding that some of the suggestions that are made in Parliament in committees, or indeed on the floor of the House, they're positive, they're constructive. They're not all just political opposition. Very often, especially in the House of Lords, you get some very thoughtful and very experienced people pulling forward with ideas that would actually help the government.

Lord Dunlop:

No, and I think that's right. And certainly in the House of Lords, it's not just the amendments that get put down, debated and some of them carried, some of them not. It's a lot of the unseen work that goes on between members of the House of Lords and the government front bench in discussing about some of these issues. And actually, the government recognising that improvements can be made and concessions are made. And these things sometimes don't even go to a division. And a lot of that work is really not seen, but does go on. And I think illustrates the point that Ann has been making,

Matt:

We're talking here, I guess, about the difficulties of scrutinizing big complex bills. And only last month in our December podcast, the chairs of the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee were talking almost about the opposite problem, the use of skeleton bills.

Matt:

Is that something the committee's similarly concerned about? And I suppose the listeners might be interested in what's the right amount of detail for a bill. Is there such as a 'Goldilocks bill' out there?

Baroness Taylor:

Well, I think that's what we're always grappling with. But in answer to your question, yes, we do share the concerns of those two committees. Skeleton bills, we used to call them 'Christmas tree bills.' The Home Office was particularly, but even when we were in government. When I was Chief Whip, Leader of the House, we used to have a leg committee. And we always knew that when the Home Office brought forward a bill, that was a thin end of the wedge, because they would give you a bit of a bill. And then as it went through, they'd add all sorts of baubles and things they'd had in their bottom drawer and wanted to legislate on for years, and they bring them out and try them time again. Business managers have to try to contain what government ministers want to do.

Baroness Taylor:

So those concerns are there. And that's why I think we've got to look at this again. There are certain trends that are developing in terms of legislation that are extremely worrying, skeleton bills, the use of what are called Henry VIII clauses that your previous podcast would've covered.

Baroness Taylor:

The fact that so many significant things are now being decided by Secondary Legislation without proper reference to Parliament. One very clear example is the creation of offences so that you can actually have ministers able to create a new offence. Anything of that nature should actually come to Parliament first and not be possible for ministers to do it by a statutory instrument that gets at most 90 minutes discussion at some later date. So there are worrying trends and things that I think across both parties in the House of Lords, we are concerned about.

Amy:

Ann, if I can just, I think you might be our first guest that has been a character in a play. James Graham's This House was set in the House of Commons at the time that you were the first female whip. What was that like?

Baroness Taylor:

Amazing and surreal and yes, took me back. I actually went to meet the cast before the play opened. And I sat around in a big circle. I thought I was just going to watch a scene, but they all wanted to ask me questions, in order to get a whole feel of it. And I just regret that that particular couple of hours was not recorded because it brought back things that sparked memories that just went out the window.

Baroness Taylor:

But it was particularly peculiar because I went to see the play the first time with my daughter, who was the age I was then. And so, it was almost sort of sitting next to myself as a younger person.

Baroness Taylor:

The fact is that James Graham is just the most amazing playwright of this generation. And every single one of the plays that he has done, I have just been so impressed at how he gets under the issues, under people's skin.

Baroness Taylor:

And yet the Conservative whip's office went to see This House and thought it was terrific. The Labour whip's office went to see This House and they thought it was terrific. So somehow he managed to weave it all together in a way that had everybody praising it and thinking it was fantastic. And it was.

Amy:

Brilliant. Thank you so much, both of you, for joining us. It's been a really, really interesting discussion. Thank you.

Baroness Taylor:

Thank you. Pretty painless.

[LAUGHTER]

Lord Dunlop:

Thank you.