The British government is seeking expanded authority to amend substantial sections of the Online Safety Act through secondary legislation, a move that would allow ministers to alter primary law without the full scrutiny of a parliamentary vote.
This mechanism, often referred to as “Henry VIII powers,” would grant the executive branch the ability to rewrite specific provisions of the Act using statutory instruments. The government argues that such flexibility is essential to keep pace with the rapid evolution of digital technologies, specifically the emergence of generative artificial intelligence and the shifting nature of online harms.
The scope of secondary legislation
The Online Safety Act, which became law in late 2023, establishes a comprehensive regulatory framework requiring tech companies to protect users—particularly children—from illegal content and harmful material. Enforcement is managed by the regulator, Ofcom, which is tasked with producing detailed codes of practice that platforms must follow to avoid significant fines.
By utilizing secondary legislation, ministers can bypass the lengthy process of introducing a novel bill through both the House of Commons and the House of Lords. This allows for faster adjustments to the legal definitions of “harm” or the specific obligations placed on service providers as new threats emerge in the digital ecosystem.
Institutional and legal objections
Legal experts and digital rights advocates have raised objections to the delegation of such broad powers. The primary concern centers on the erosion of legislative oversight, as statutory instruments are subject to far less debate and fewer amendments than primary legislation.
Critics argue that because the Online Safety Act touches upon fundamental issues of free expression and privacy, any changes to its core mandates should require full parliamentary approval. There are concerns that the ability to rewrite the Act via ministerial decree could lead to “regulatory creep,” where the scope of censored content expands without a transparent democratic mandate.
The role of Ofcom
While the government holds the power to amend the law, Ofcom is responsible for the operational implementation. The regulator is currently in the process of finalizing the codes of practice that will dictate how platforms manage risk assessments and content moderation.
The pursuit of these expanded ministerial powers creates a parallel track of authority. While Ofcom develops technical guidelines based on the existing law, ministers would retain the ability to fundamentally shift the legal goalposts upon which those guidelines are built.
The Department for Science, Innovation and Technology has maintained that the agility provided by these powers is a necessity for national security and child safety, asserting that the slow pace of traditional legislation is incompatible with the speed of technological change.
The government’s proposal remains subject to the ongoing rollout of the Act’s various phases, with Ofcom currently consulting on the specific requirements for age verification and the prevention of illegal content.
