Lord Clement-Jones (LD)
My Lords, I rise to support Amendment 134, tabled by the noble Lord, Lord Stevenson, which was so ably introduced by the noble Baroness, Lady Merron. The Government accepted the Joint Committee’s recommendation that priority offences should be put in the Bill, and that is now contained in Schedules 5, 6 and 7. In particular, Schedule 7 sets out the priority offences. The noble Baroness, Lady Merron, has nailed it in setting out why these animal suffering-related offences fall within the Government’s criteria.
When the Government responded to the Joint Committee, they accepted our recommendation that we should put priority content in the Bill. As the noble Baroness, Lady Merron, said, the criteria are very clearly set out in paragraph 86 of their report:
“The prevalence of such content on regulated services … The risk of harm being caused to UK users by such content; and … The severity of that harm”.
The noble Baroness has absolutely set out how these offences fall within those criteria: the prevalence of these offences; the abuse that is present; the viewing by children and its impact on them; the impact on animal welfare, which would be positive if this content were treated as a priority offence; and the very strong public support.
Of course—the noble Baroness did not quite go here, but I will—there is a massive contrast with the inclusion of the encouragement of immigration offence in Schedule 7. These offences have far greater merit for inclusion in Schedule 7. I very much hope the Minister will accede to what I think is an extremely reasonable amendment.
The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)
I thank the noble Baroness for her amendment and the noble Lord, Lord Clement-Jones, for speaking so powerfully, as ever. I very much recognise the harms and horrors of cruelty to animals online or anywhere else. The UK has a proud history of championing and taking action on animal welfare, and the Government are committed to strengthening animal welfare standards and protections.
Our Action Plan for Animal Welfare demonstrates the Government’s commitment to a brighter future for animals both at home and abroad and provides a foundation for conversations on how we can continue to improve animal welfare and conservation in future. I can also reassure your Lordships that this Bill will tackle some of the worst online activities related to animal cruelty.
Amendment 134 seeks to add certain specified animal offences to the list of priority offences in Schedule 7. It is worth reminding ourselves that the Bill will already tackle some of the worst examples of animal cruelty online. This includes, for example, where the content amounts to an existing priority offence, such as extreme pornography, which platforms must prevent users encountering. Equally, where content could cause psychological harm to children, it must be tackled. Where the largest services prohibit types of animal abuse content in their terms of service, the Bill will require them to enforce those terms and remove such content. Improved user reporting and redress systems, as mandated by the Bill, will make it easier for users to report such content.
The Bill, however, is not designed to address every harm on the internet. For it to have an impact, it needs to be manageable for both Ofcom and the companies. For it to achieve the protections envisaged since the start of the Bill, it must focus on its mission of delivering protections for people. Schedule 7 has been designed to focus on the most serious and prevalent offences affecting humans in the UK, on which companies can take effective and meaningful action. The offences in this schedule are primarily focused on where the offences can be committed online—for example, threats to kill or the unlawful supply of drugs. The offences that the noble Baroness proposes cannot be committed online; while that would not stop them from being added for inchoate purposes, the Government do not believe that platforms would be able to take effective steps proactively to identify and tackle such offences online.
Crucially, the Government feel that adding too many offences to Schedule 7 that cannot be effectively tackled also risks spreading companies’ resources too thinly, particularly for smaller and micro-businesses, which would have to address these offences in their risk assessments. Expanding the list of offences in Schedule 7 to include the animal cruelty offences could dilute companies’ efforts to tackle other offences listed in the Bill which have long been the priority of this legislation.
Beyond the Bill, however, the Government are taking a very wide range of steps to tackle animal cruelty. Since publishing the Action Plan for Animal Welfare in 2021, the Government have brought in new laws to recognise animal sentience, introduced additional legislative measures to tackle illegal hare-coursing, and launched the animal health and welfare pathway as part of our agricultural transition plan. We will, of course, continue to discuss these important issues with colleagues at the Department for Environment, Food and Rural Affairs, who lead on our world-leading protections for animals, but, for the reasons I have set out, I am unable to accept this amendment. I therefore hope that the noble Baroness will withdraw it.
Baroness Merron (Lab)
My Lords, I am grateful to the Minister for his considered reply, outlining the ways in which he believes the Bill supports where this amendment is going. I am also grateful to the noble Lord, Lord Clement-Jones, for his support. Indeed, it is my view that the criteria have been met for inclusion of these animal welfare offences in this list of priority offences. It is, of course, disappointing that the Minister does not share the view that we have expressed.
Perhaps I could pick up a point from the Minister’s response. It seems to me that something that is illegal offline should also be illegal online. If something is illegal under the various Acts referred to but there is user-to-user content of these animal cruelty films, for example, is the Minister saying that this will be covered by the Bill in its current form?
I note that the Minister has spoken of continuing discussions with Defra, which is very welcome. I am also requesting a meeting to pursue this. It is something on which we could make progress, and I hope that the Minister would be open to that. With that, I beg leave to withdraw the amendment.
“10A_ An offence under section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship).”Member’s explanatory statement
This amendment adds the specified offence to Schedule 7, with the effect that content amounting to that offence counts as priority illegal content.
Lord Parkinson of Whitley Bay (Con)
As noble Lords will recall from the earlier debate on this issue, His Majesty’s Government take tackling violence against women and girls extremely seriously. This is why we have ensured that the Bill provides vital protections for women and girls, so that they can express themselves freely online without fear of harassment or abuse.
As noble Lords know, the Bill places strong duties on providers regarding illegal content. The Bill takes an approach which protects all users, but the framework accounts for the fact that some offences can disproportionately affect certain people. To that end, we have already listed several priority offences in Schedule 7 that we know disproportionately affect women and girls. These include sexual exploitation, intimate image abuse— including so-called revenge pornography—and extreme pornography.
In addition, I want to be clear that the Bill will also cover content which intentionally encourages priority offences, an issue that was raised as a concern in our previous debate. Paragraph 33 of Schedule 7 has the effect that inchoate offences of encouraging or assisting a priority offence are themselves to be treated as priority offences under the Bill. As a result, for example, where there is content that intentionally or knowingly encourages harassment online, services will have proactive duties in relation to this content.
Furthermore, the Bill will soon—as I mentioned earlier—introduce new intimate image abuse offences to tackle behaviour, such as the sharing of deep-fake images. These new offences will be listed as priority offences, as is already the case for the current revenge pornography offence under Section 33 of the Criminal Justice and Courts Act 2015. These offences are a major milestone for protecting women and girls, and will be introduced to the Bill as soon as possible. They will sit alongside the Bill’s other criminal provisions, such as its offences on cyberflashing, false communications and threatening communications.
Although I appreciate the intention behind Amendments 269 and 270 and look forward to hearing the arguments made by the noble Lords who will speak to them, I remain concerned by the approach suggested to change Clause 167 to a consent-based model rather than the current intent-based approach. We are confident that the offence, as drafted, captures acts of cyberflashing, including when supposedly done “for a joke”—which, of course, it certainly is not. This is because the focus of the offence as drafted remains firmly on the perpetrator’s abhorrent behaviour and not on the actions of the victim, as would happen with a consent-based approach.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
I join all those who have sent our best wishes to the noble Baroness, Lady Featherstone, for a speedy recovery. I am grateful that noble Lords were able to take forward her points in this debate.
As I said at the outset, protecting women and girls online is an objective of this Bill, which is reflected by the number of priority offences we have included that disproportionately affect women and girls. This includes the addition of the controlling or coercive behaviour offence, and I am grateful for the support from across the Committee for that amendment. This, in addition to the new cyberflashing offence and other criminal law reforms, demonstrates our continued commitment to increase the safety of women and girls online.
The amendments tabled by my noble friend Lady Berridge and the noble Baronesses, Lady Featherstone and Lady Gohir, relate to cyberflashing. The new cyberflashing offence, alongside the package of offences in this Bill, will bring significant benefit for women and girls across the UK, too many of whom have been subjected to the distressing behaviour that noble Lords have spoken about in this debate. We share the aim of noble Lords who have spoken in favour of those amendments to ensure that this offence is effective at stopping this behaviour.
Regarding Amendments 269 and 270, I want to reassure your Lordships that the intent-based approach in Clause 167 has been tested extensively both by the Law Commission and subsequently by His Majesty’s Government. The noble Lord, Lord Stevenson, is correct that we do not automatically agree with what it says, but we do take the commission’s expert views very seriously. The Crown Prosecution Service has stated that it has no concerns about using the offence that has been drafted to bring perpetrators to justice. Indeed, it strongly supported the inclusion of the “sexual gratification” element, which would, according to the Crown Prosecution Service, enable it to prosecute this offence more effectively.
The offence will capture many instances of cyberflashing, such as where pictures are sent to strangers via AirDrop in a crowded railway carriage. I agree with the points noble Lords raised about the settings and the simple technological change that, at an operator level, could make a big difference here. We are well aware of the concern set out by the noble Baroness, Lady Burt of Solihull, that an intent-based approach may let perpetrators off the hook if they send images supposedly for a laugh. We do not accept that view. The courts will, in the normal way, consider all the evidence to determine whether the elements of the offence have been made out. It is of course never on the victim to have to prove the perpetrator’s intention; it is for the police to investigate alleged offences and for the Crown Prosecution Service to establish the perpetrator’s intention in court.
I draw noble Lords’ attention to the inclusion of the word “humiliation” in Clause 167. This will catch many supposedly joke motives, since the perverted form of humour in these instances is often derived from the victim’s humiliation, alarm or distress. This offence has been crafted following calls, including by victims’ groups, to include an intention to cause the victim humiliation.
My noble friend Lady Morgan of Cotes said she was unable to attend the briefing we organised with the Law Commission so, for the benefit of those who were not able to join, let me reassure noble Lords that Clause 167 is based on the offence proposed by the Law Commission, which held an extensive public consultation with victims, the police, prosecutors and academics, and was drafted following further engagement with the police and the Crown Prosecution Service.
The Law Commission, as Professor Lewis set out in that briefing for your Lordships, did consider a consent-based approach, and its final report highlights the significant concerns expressed by respondents to its consultation. A consent-based offence, as the commission found, would result in overcriminalisation, capturing behaviour that does not warrant criminal sanction. For example, as Professor Lewis outlined at the meeting, it could capture a patient sending their doctor an image of their genitals for medical reasons. I take the point that the noble Lord, Lord Stevenson, just made interrogating that. The commission found that it would also criminalise misjudged attempts at intimacy where there was, for example, no genuine intention to cause harm or upset. It has looked at these issues.
Requiring a specific intent is not new and is taken in line with other non-contact sexual offences, including “in person” flashing—the offence of exposure. The police and Crown Prosecution Service are very familiar with these offences and with the evidence that is needed in court to prove the required intent. Crucially an offence based on a lack of consent would shift the focus away from the actions and intentions of the perpetrator to the victim and what they may or may not have done. This would be likely to result in a victim’s previous sexual or private behaviour being interrogated in open court. We do not want victims of this behaviour to be put under that sort of pressure. We want the focus to be fully on the perpetrator’s actions and intentions. The provisions in the Bill have been carefully targeted to protect victims from the intrusive and disturbing behaviour that noble Lords have set out, not to subject them to an unnecessary and distressing interrogation of their private lives.
Changing the consent test to reasonable belief that the defendant would have consented, in order to avoid criminalisation, would not work. Applying this test would mean that it would be much easier for genuinely harmful and culpable cyberflashing to escape conviction. For example, it would make it easier for a defendant to make an excuse, such as claiming that they reasonably believed that a person had consented to see a picture because they were on a particular dating app or, as was discussed in the briefing with the Law Commission, claiming that the victim had smiled back at them in a meaningful way on a train. They are not, perhaps, strong defences, but they are not—I am sure—ones that noble Lords would want to encourage through the drafting of this amendment. We are confident that an intent approach is the most appropriate way to frame this offence and that it ensures that the criminal law is workable, so that we can bring perpetrators to justice.
Lord Stevenson of Balmacara (Lab)
I am sorry to interrupt the Minister in his flow. Just to go back a little bit, the amendment in the name of the noble Baroness, Lady Featherstone, attempted to resolve the questions about where it was legitimate for material of the nature that he has been describing to be circulated. Would be accept that that approach has some merit? If so, then I go on to ask: is the decision still to go with intent rather than content for reasons other than relating to that particular point?
Lord Parkinson of Whitley Bay (Con)
I am sorry, I was slightly distracted by noises off. Would the noble Lord mind repeating his question?
Lord Stevenson of Balmacara (Lab)
It is a very narrow point, but it is important in terms of the overall approach that we are taking on this. The Minister very accurately described the reasons that the Law Commission came up with for moving back to an intent-based rather than content-based approach. I wanted to ask him to check whether the wording in the amendment that we signed up to, in the name of the noble Baroness, Lady Featherstone—ably introduced by the noble Baroness, Lady Burt, and spoken to by many people around the Chamber—would cover off those points where there is legitimate reason for this material to be circulated. I used an unfortunate phrase that I will not repeat. Are the Government happy to accept that it is possible to get around that objection by the Law Commission by making legitimate those particular explicit reasons for those pictures being circulated? I make that point only to get an admission at the Dispatch Box that the Government could get round the issue that has been mentioned, but they are still deciding to go for an intent-based approach for other reasons, which the Minister has just adumbrated and which I accept are genuine.
Lord Parkinson of Whitley Bay (Con)
In brief, we think the Law Commission has it right—
Lord Stevenson of Balmacara (Lab)
If the Minister could write to me on the point once he has had advice, or perhaps inspiration from the Box, that would be very helpful.
Lord Parkinson of Whitley Bay (Con)
I will certainly do so. It requires flicking through a number of amendments and cross-referencing them with provisions in the Bill. I will certainly do that in slower time and respond.
We think that the Law Commission, which looked at all these issues, including, I think, the questions put by the noble Lord, has done that well. We were satisfied with it. I thought its briefing with Professor Penney Lewis was useful in exploring those issues. We are confident that the offence as drafted is the appropriate one.
My noble friend Lady Morgan and others asked why both the Law Commission and the Government are taking a different approach in relation to intimate image abuse and to cyberflashing. We are taking action to criminalise both, but the Law Commission recommended different approaches in how to criminalise that behaviour to take into account the different actions of the perpetrator in each scenario. Sharing an intimate image of a person without their consent is ipso facto wrongful, as it is a violation of their bodily privacy and sexual autonomy. Sending a genital image is not ipso facto wrongful, as it does not always constitute a sexual intrusion, so greater additional culpability is required for that offence. To give an example, sending a photograph of a naked protestor, even without the consent of the recipient, is not always harmful. Although levels of harm resulting from behaviours may be the same and cause the same levels of stress, the criminal law must consider whether the perpetrator’s behaviour was sufficiently culpable for an offence to have been committed. That is why we think the intent approach is best for cyberflashing but have taken a different approach in relation to intimate image abuse.
Baroness Morgan of Cotes (Con)
I thank my noble friend for that explanation, which is very helpful and there is a lot in his reply so far that we will have to bottom out. Is he able to shed any light at all on when we might see the drafting of the intimate image abuse wording because that would be helpful in resolving some of the issues we have been debating?
Lord Parkinson of Whitley Bay (Con)
I cannot give a precise date. The Committee knows the dates for this Committee are a moveable feast, but we have been having fruitful discussions on some of the issues we have already discussed—we had one yesterday with my noble friend. I appreciate the point she is making about wanting to see the drafting in good time before Report so that we can have a well thought through debate on it. I will certainly reiterate that to the usual channels and to others.
Amendment 271 additionally seeks to require companies in scope to provide systems which enable users to report incidents of cyberflashing to platforms. Clauses 16 and 26 already require companies to set up systems and processes which allow users easily to report illegal content, and this will include cyberflashing. This amendment therefore duplicates the existing requirement set out in the Bill. Amendment 271 also requires in scope companies to report cyberflashing content to the Crown Prosecution Service. The Bill does not place requirements on in scope companies to report discovery of illegal content online, other than in the instances of child exploitation and abuse, reflecting the seriousness of that crime and the less subjective nature of the content that is being reported in those scenarios.
The Bill, which has been developed in consultation with our partners in law enforcement, aims to prevent and reduce the proliferation of illegal content and activity in the first place and the resulting harm this causes to so many. While the Bill does not place any specific responsibilities on policing, our policing partners are considering how best to respond to the growing threat of online offences, as my noble friend Lady Morgan noted, in relation to the publication last week of the Strategic Threat and Risk Assessment on Violence Against Women and Girls. Policing partners will be working closely with Ofcom to explore the operational impact of the Bill and make sure it is protecting women and girls in the way we all want it to.
I hope that helps noble Lords on the issues set out in these amendments. I am grateful for the support for the government amendment in my name and hope that noble Lords will be content not to move theirs at this juncture.
(a) section 24(A1), (B1), (C1) or (D1) (illegal entry and similar offences);(b) section 25 (assisting unlawful immigration).”Member’s explanatory statement
This amendment adds the specified offences under section 24 of the Immigration Act to Schedule 7, with the effect that (amongst other things) content amounting to encouraging those offences (as per the Serious Crime Act 2007) counts as priority illegal content.