Data (Use and Access) Bill [HL]

3rd reading
Wednesday 5th February 2025 Lords Chamber

Third Reading

Relevant documents: 3rd Report from the Constitution Committee, 9th and 12th Reports from the Delegated Powers Committee.

Welsh and Northern Ireland Legislative Consent sought.

15:53

[The Minister of State, Department for Science, Innovation and Technology (Lord Vallance of Balham) (Lab)]

My Lords, I will make a brief statement on the devolution status of the Bill. Parts 1, 2, 3 and 7 of the Bill include provisions within the legislative competence of the Northern Ireland Assembly, the Senedd Cymru and the Scottish Parliament. On 22 October, the Secretary of State for Science, Innovation and Technology wrote to counterparts in Northern Ireland, Scotland and Wales, seeking their agreement to initiate the legislative consent process and to support a legislative consent Motion in the Northern Ireland Assembly, the Scottish Parliament and the Senedd Cymru. Since the beginning of the Bill’s passage, my officials have been in regular contact with the Northern Ireland Civil Service, the Welsh Government and the Scottish Government. We are hopeful that the legislative consent process will progress swiftly over the coming weeks, ahead of Report in the other place.

Although it has not been possible to secure consent by this time, I take this opportunity to thank officials in Northern Ireland, Scotland and Wales and express my gratitude for the close working throughout the passage of the Bill. We remain committed to sustained engagement on the Bill with all three devolved Administrations as it progresses through Parliament.

Amendment 1

Moved by

[Lord Vallance of Balham]

1: After Clause 80, insert the following new Clause—
“Data protection by design: children’s higher protection matters(1) Article 25 of the UK GDPR (data protection by design and by default) is amended as follows.(2) After paragraph 1 insert—“1A. In the case of processing carried out in the course of providing information society services which are likely to be accessed by children, when assessing what are appropriate technical and organisational measures in accordance with paragraph 1, the controller must take into account the children’s higher protection matters.1B. The children’s higher protection matters are—(a) how children can best be protected and supported when using the services, and(b) the fact that children—(i) merit specific protection with regard to their personal data because they may be less aware of the risks and consequences associated with processing of personal data and of their rights in relation to such processing, and(ii) have different needs at different ages and at different stages of development.”(3) In paragraph 3, for “1 and 2” substitute “1 to 2”. (4) At the end insert—“4. Paragraphs 1A and 1B are not to be read as implying anything about the matters that may be relevant to the assessment of what are appropriate technical and organisational measures for the purposes of paragraph 1 in cases other than those described in paragraph 1A.5. In this Article, “information society services” does not include preventive or counselling services.””Member’s explanatory statement
This amendment imposes duties to take account of matters relating to children on controllers involved in providing information society services which are likely to be accessed by children. The duties apply when these controllers are designing the means of processing personal data and when carrying out the processing.

[Lord Vallance of Balham (Lab)]

I will now speak to the government amendment tabled in my name. The Government are firmly committed to protecting children’s personal data and ensuring that online services likely to be accessed by children are designed with their safety and privacy in mind. We have listened carefully to the concerns raised in this House during earlier debates and have worked quickly to bring forward this amendment, which reflects those discussions. During the debate on 21 January, I made clear that, while we could not accept Amendment 22 from the noble Baroness, Lady Kidron, which would have placed new duties on all data controllers, the Government were open to a more targeted approach that addressed the areas of greatest concern.

This amendment delivers on that commitment. It amends Article 25 of the UK GDPR, which already requires data controllers to design appropriate organisational and technical measures to implement the data protection principles. The amendment strengthens these obligations for information society services providers, such as social media and the streaming sites likely to be accessed by children.

They will be required to give extra consideration when deciding which measures are appropriate for online services likely to be accessed by children. Specifically, information society services providers must consider

“the children’s higher protection matters”

set out in the clause when designing their processing activities. These are:

“how children can best be protected and supported when using the services, and … the fact that children … merit specific protection with regard to their personal data because they may be less aware of the risks and … their rights in relation to such processing, and … have different needs at different ages and at different stages of development”.

The new duty expressly applies to

“information society services which are likely to be accessed by children”.

They are the same organisations that should already be following the ICO’s age-appropriate design code. Organisations that are already complying with the code should not find it difficult to comply with the new duty, but organisations that have treated compliance with the code as optional will now be under a clear legal duty to design their services with children’s rights and interests in mind.

I also want to make it clear that other organisations that process children’s personal data may need to consider these matters on a case-by-case basis and depending on the context. Although this amendment creates an express duty on information society services providers, those matters may sometimes be relevant in other contexts. Proposed new subsection (4) makes that clear.

I take this opportunity to thank the noble Baroness, Lady Kidron, and other noble Lords who have contributed to this important debate. I hope this amendment, together with the other steps we are taking in the Bill to protect children, including the new duty on the ICO to consider children’s interests when carrying out its regulatory functions, will be welcomed across the House. I beg to move.

[Baroness Kidron (CB)]

My Lords, I support the amendment in the name of the Minister, to which I have added my name, and welcome his words from the Dispatch Box. As he said, this new duty provides a direct and unequivocal legal duty on all information society services likely to be accessed by a child and acknowledges in the Bill that services outside the definition of ISS must also consider children—indeed, they must consider children’s specific protections when determining how to process their data.

For the last decade, I and others have fought to establish minimum standards to ensure the safety and privacy of children in the UK and, over time, we have learned that we cannot assume a trajectory of progress. Standards can go down as well as up, and we cannot be sure that the intentions of Parliament will always be interpreted as robustly as promised.

I am concerned about the impact of tech lobbying on this Bill, the regulator and the Government’s wider digital strategy. I hope that the companies represented by those lobbyists will take note of this amendment as a sign that, when it comes to children, they have absolute responsibilities under the law. The Bill team has persuaded me that the child-specific duties on the ICO in the Bill, in combination with its new reporting duties, mean that the ICO will report separately about steps it has taken and will take to uphold children’s heightened data rights. I would be grateful if the Minister could confirm that that is also the Government’s expectation.

16:00

On Report the Minister told the House:

“The new ICO duties set out in the Bill will ensure that where children’s interests are relevant to any activity the ICO is carrying out, it should consider the specific protection of children. This includes when preparing codes of practice”,—[Official Report, 21/1/25; col. 1692.]

including the promised action to deal with the problems of edtech and the new code on AI. I have spoken to many noble Lords in the Lords tech team, and we all welcome and look forward to the promised engagement from both the ICO and the department during the development of those codes.

I thank the Minister and the Bill team for their efforts in introducing this measure, and I ask the Minister to commit to writing to the ICO to confirm its expectation that it will reflect that UK data law has been further strengthened through this new duty to consider children’s higher protection matters. As he said, the AADC is not optional.

Finally, I congratulate the Home Secretary, the Secretary of State for DSIT and the Safeguarding Minister on the Government’s recent announcement that they will introduce legislation to make it illegal to possess, create or distribute AI tools designed to create child sexual abuse material. But I am also keen to recognise that this proposal was originally brought forward by this House as an amendment to this Bill and its predecessor. It would not have been possible without the hard work and support of countless noble Lords and MPs to secure this new law, including but not limited to the noble Lords, Lord Clement-Jones, Lord Stevenson and Lord Bethell, the noble Viscount, Lord Camrose, the noble Baroness, Lady Harding, and my noble friend Lord Russell.

This law addresses a clear and urgent need. I record our collective gratitude to the specialist police officers who, in addition to their front-line duties, took time to bring this issue to our attention and provided advice and input throughout. I also thank 5Rights, the NSPCC, the IWF, the Telegraph, Sky News and the BBC. Pushing for change, even change that is so clearly needed, is the tireless work of many people. Our thanks are due to them as our hearts go out to those who have been victims.

[Lord Stevenson of Balmacara (Lab)]

My Lords, the little exchange we have just had, which was most welcome, arose because it became clear in Committee that there were meetings of minds but not meetings of words in what had been presented there. I am pleased to join the noble Baroness, Lady Kidron, in congratulating the department, including the Minister and the Bill team, on listening to the House. When the House gets behind a theme or topic and expresses it across all sides, it is worth listening to what is being said and thinking again about what was originally proposed, so that what comes out in the end is for the good of all.

It is always a bit unnerving to be namechecked in somebody else’s speech, and I am grateful to the noble Baroness, Lady Kidron, for picking up the tech group, as she calls it, which has been following this and other Bills for the past five or six years. It has got together on many occasions to improve what we have seen before us, and I hope that the House recognises that. It is also important to recognise that when we speak as a House, we have a power that is worth engaging with, as we have shown on this occasion. I am grateful to the Minister for recognising that in his words at the Dispatch Box.

[Lord Russell of Liverpool (CB)]

My Lords, I rise briefly to congratulate the Minister and the noble Baroness, Lady Kidron, on the amazing work she has done. Furthermore, I appeal to the Government and all the different departments that may be involved in bringing before Parliament any legislation that in any way, shape or form involves children. We have repeatedly had to deal with Bills that have arrived in this House where it is quite clear that the needs and vulnerabilities of children are not being recognised right from the beginning in the way the legislation is put together. We have to pull it apart in this House and put it back together, because it has not been thought of properly in the first place.

I appeal to the Minister to ensure that the left hand knows what the right hand is doing. We need to learn the lessons of the battles that we have had to fight in recent years with a variety of Bills—largely successfully, mainly thanks to the noble Baroness, Lady Kidron. We do not want to keep on repeating those battles. We need to learn and do better.

[Lord Clement-Jones (LD)]

My Lords, it is a privilege to be part of the tech team and a pleasure to welcome a government amendment for a change. Although some of us might quibble with the rather convoluted paragraph 4, we should not stand on ceremony in that respect. I pay huge tribute to the tenacity of the noble Baroness, Lady Kidron, throughout a series of Bills, not just this one. Our motivation in pressing for this kind of amendment has been the safety of children, whether with the Online Safety Act or this Bill. This amendment takes the Bill a step further but, as the noble Baroness says, we will remain on the case. We look forward to engaging with the ICO on this as the Bill is implemented.

I echo the noble Baroness’s thanks to the Minister and the Government for putting forward the CSEA offence. As the noble Baroness said, that had its origin in this Bill but will now be in the crime and policing Bill. I thank the Government for taking that forward. Also, it is very nice to see the noble Baroness, Lady Jones of Whitchurch, back in her place.

[Viscount Camrose (Con)]

My Lords, I thank the Minister for bringing forward this amendment. I too welcome the return of the noble Baroness, Lady Jones, and wish her a speedy end to her recovery.

Most of all, I congratulate the noble Baroness, Lady Kidron, on her successful campaigning to deliver better protections for children during the passage of this Bill. Throughout our consideration of the Bill, we on these Benches have firmly supported stronger protections for children in the Bill, which build on the important and collaborative work done by so many of us in the tech team under the previous Government and this one. Although we had some specific concerns about the drafting of some previous amendments on this topic, we are delighted that the Government have listened to the noble Baroness and brought forward their own amendment, which the noble Baroness is able to support. We firmly agree that children merit specific protection regarding their personal data, as they may be less aware of the risks and consequences of data processing. We support the amendment.

[Lord Vallance of Balham (Lab)]

My Lords, I thank noble Lords who have contributed to this debate. I have noted the points about the left hand and the right hand, and about institutional memory. I echo other noble Lords in their thanks to the noble Baroness, Lady Kidron, for her persistence and insight. I can confirm that we would expect the ICO to update its regulatory action policy to reflect the changes and report against this duty. I will also write to that effect. I am glad that we have reached consensus on this very important matter.

Amendment 1 agreed.

Amendment 2

Moved by

[Lord Ponsonby of Shulbrede]

2: After Clause 139, insert the following new Clause—
“Creating purported intimate image of adult(1) The Sexual Offences Act 2003 is amended in accordance with subsections (2) and (3).(2) After section 66D insert—“66E Creating purported intimate image of adult(1) A person (A) commits an offence if—(a) A intentionally creates a purported intimate image of another person (B),(b) B does not consent to the creation of the purported intimate image, and(c) A does not reasonably believe that B consents.(2) “Purported intimate image” of a person means an image which—(a) appears to be, or to include, a photograph or film of the person (but is not, or is not only, a photograph or film of the person),(b) appears to be of an adult, and(c) appears to show the person in an intimate state.(3) Subsections (5) to (9) of section 66D (person in an intimate state) apply for the purposes of this section as if references in those subsections to a photograph or film were references to an image.(4) References in this section to creating a purported intimate image of a person do not include doing so by modifying a photograph or film of the person where what is created by the modification is an image which—(a) appears to show the person, but(b) does not appear to show—(i) something within section 66D(5)(a) to (e) (read with subsections (6) and (7) of that section) which is not shown in the photograph or film, or(ii) a person who is not shown in the photograph or film.(5) It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for creating the purported intimate image.(6) A person who commits an offence under this section is liable on summary conviction to a fine.66F Creating purported intimate image of an adult: further definitions etc(1) This section applies for the purposes of section 66E.(2) “Consent” to the creation of a purported intimate image includes general consent covering the particular act of creation as well as specific consent to that particular act.(3) Whether a belief is “reasonable” is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.(4) “Photograph” includes the negative as well as the positive version.(5) “Film” means a moving image.(6) A reference to an “image”, “photograph” or “film” includes data stored by any means which is capable of conversion into an image, photograph or film.(7) An image of a person appears to be an image of an adult if—(a) the impression conveyed by the image is that the person shown is aged 18 or over, or (b) the predominant impression conveyed by the image is that the person shown is aged 18 or over (even if some of the physical characteristics shown are those of a person under 18).”(3) In section 79(5) (meaning of references to image of a person), after “a person” insert “(except in sections 66E and 66F)”.(4) In the Sentencing Code, after section 154 insert—“154A Purported intimate images to be treated as used for purpose of certain offences(1) This section applies where a person commits an offence under section 66E of the Sexual Offences Act 2003 (creating purported intimate image of adult).(2) The purported intimate image to which the offence relates, and anything containing it, is to be regarded for the purposes of section 153 (and section 157(3)(b)) as used for the purposes of committing the offence (including where it is committed by aiding, abetting, counselling or procuring).””Member’s explanatory statement
This clause makes it an offence to create a purported intimate image of an adult without consent and provides that deprivation orders can be made under the Sentencing Code in connection with the offence.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, I am grateful for the opportunity to continue this debate on the intimate image deepfakes within the context of this legislation. We have heard the concerns raised by Members of this House and, as I committed to on Report, I am pleased to move a government amendment that will ensure that those who create an intimate deepfake of an adult without their consent, or a reasonable belief in their consent, are held accountable under the criminal law. This is an important step forward in itself, and one which shows how carefully the Government have listened. However, as I made clear last week, and as I will come on to, we will table further amendments as the Bill progresses through the House of Commons.

Before turning to the specifics of the amendment, I take this opportunity to express my sincere gratitude to the noble Baroness, Lady Owen of Alderley Edge. She has shown unwavering commitment to supporting the victims of online abuse, which has been invaluable. Her tireless efforts have significantly shaped policy in this critical area. I also thank the noble Lords, Lord Clement-Jones and Lord Pannick, and my noble friend Lord Browne of Ladyton, who have given much of their time to support the noble Baroness and meet me and my ministerial colleagues and officials as we work through the policy on this important issue.

Technological advancements have progressed at such a tremendous pace, making it increasingly easy for individuals to create a realistic intimate image of a person without their consent. This is unacceptable. We recognise the risk posed by the creation of these images, both to the individuals depicted in them and to society more widely. Victims report feeling embarrassed, violated and unsafe, and the images undermine the fundamental principle of consent—something we as a society hold in the highest regard. As such, we must act now.

As noble Lords will recall from last week’s debate, the Government committed to tabling an updated amendment at Third Reading reflecting the views heard in this Chamber. Amendment 2 will make it an offence to intentionally create

“a purported intimate image of another person”

without their consent or reasonable belief in their consent. Importantly, there will be no additional mental elements for this offence, which adopts a consent-based approach to better protect victims from harm. This recognises that creating such images, whatever the perpetrator’s purpose, should be considered a criminal violation of a person’s privacy. The scope of this offence will be limited to images of adults, as existing legislation already provides for a number of very serious offences involving similar images of children.

We have carefully considered the concerns raised regarding the types of images involved. We are grateful to the noble Baroness for her constructive collaboration. We have defined the images in the amendment more broadly than originally proposed, by reference to Section 66D(5) to (9) of the intimate image abuse framework in the Sexual Offences Act 2003. This offence will therefore cover the creation of the same types of images as are covered by the sharing intimate images offences, an approach which we intend to replicate in the proposed taking offences. Consequently, the criminal law will be comprehensive and consistent on this issue.

It will be a criminal offence to create, take or share an image which shows, or appears to show, someone engaged in sexual acts, or where the most intimate parts of the body are exposed or covered with underwear, or where the person is, for example, using a toilet.

The Government’s amendment includes a defence based on reasonable excuse, which would apply in the exceptional circumstances where there is a reasonable excuse for creating such an image. The defence places the legal burden of proof on the defendant, so it will be for the defendant to convince the court, on the balance of probabilities, that they had a reasonable excuse for creating the image, rather than for the prosecution to prove that they did not have such an excuse.

It is right that such a defence is available. The law in this country regularly includes a range of defences, including defences of reasonable excuse, and this defence is also available in many other offences, including intimate image offences. This is particularly so with such a new type of offence, where we simply cannot know all the circumstances, now and in the future, as technology develops, where it may be committed. That is another reason for the reasonable excuse defence.

We are confident that the courts would consider very carefully evidence of any such excuse, and how reasonable it was, on the facts of every individual case. That is something the courts are used to considering, and the CPS is used to interrogating, in many offences, and we believe this strikes the right balance between protecting victims and respecting individual rights.

16:15

Without wishing to pre-empt the noble Baroness, Lady Owen, I note that she has tabled Amendment 5, which aims to remove the reasonable excuse defence from the government amendments. I was clear during last week’s debate that we felt it necessary to include this defence in our amendments. Indeed, the noble Baroness’s amendment on Report included the same defence. It is the Government’s view that this defence is necessary to ensure that the deepfake offence is a proportionate response to the threats posed by intimate image deepfakes. Were Amendment 5 to be inserted into the Bill, the Government’s view is that the provision would more likely than not be incompatible with the European Convention on Human Rights.

The new offence would be a non-imprisonable offence with a maximum penalty of an unlimited fine. As this will be a sexual offence, victims will be entitled to automatic anonymity and be eligible for special measures at trial. I know that many Peers are concerned about the maximum penalty we propose for this offence and share the view of the noble Baroness, Lady Owen, that this defence should attract a custodial sentence, which she has put forward in her Amendment 6. I reassure the House that we have considered this very carefully, as we always do when creating new criminal offences. We are confident that the maximum penalty of an unlimited fine is appropriate for a new offence such as this, which captures a wide range of behaviour.

Furthermore, we think that this offence will typically, if not predominantly, be prosecuted alongside offences of sharing intimate images. This offence will often come to light when the images are shared, and sharing intimate images attracts a maximum penalty of up to two years’ imprisonment. We will, of course, continue to keep this under review.

I now turn to the topic that has generated considerable debate within the House and is the subject of several of the noble Baroness’s amendments, and that is solicitation. We are committed to making it a criminal offence to ask someone to create a deepfake for you, regardless of where they are based or where their image is created. We are committed to bringing forward amendments to do that during the Commons stages of the Bill, so that it will be criminalised alongside the act of creation itself when the measures come into law. This will ensure that both creating and soliciting the creation of an intimate deepfake image without consent or reasonable belief in consent are criminal. That is a promise I make from this Dispatch Box.

We have not been able to include solicitation in this amendment. That is not because we do not want to do it but because we need to make sure the offence is robust, taking into account the way in which similar terms are used elsewhere, and ensuring we do not risk creating confusion about which offence to prosecute or call into question the operation of other related areas of law. We know that an act of solicitation contributes to the commission of any eventual creation offence and, as such, we view it as a core part of the package to ensure a more complete and effective approach to justice. We remain committed to working with the noble Baroness on this issue, and hope that the assurance given today is enough to prevent her from pushing Amendment 3 to a vote.

I turn to another important issue raised by the noble Baroness in previous debates, and that is time limits. We understand how crucial time limits are. Unless a specific exception is made, there is a standard time limit that applies to summary-only cases. They need to be brought within six months of the offence being committed or the matter of the complaint arising. We have listened carefully to concerns expressed across your Lordships’ House and agree that we do not want perpetrators to get away with creating a deepfake without consent just because no one knew about it in time for the prosecution to commence within six months. We will therefore consider this very carefully to better protect victims, and I make a commitment today to bring back an amendment on this in the other place.

Let me close by thanking once again the noble Baroness, Lady Owen, the other signatories to her amendments and their supporters for their tireless campaigning on these important matters. I reiterate that the Government remain steadfast in bringing forward their manifesto commitment to ensure the protection of victims, and that is our priority. That is why we will, as I have promised, bring forward further amendments on solicitation and time limits in the other place. I trust that noble Lords will agree that our amendments represent a real step forward in criminalising deep fakes and protecting victims. I beg to move.

Amendment 3 (to Amendment 2)

Moved by

[Baroness Owen of Alderley Edge]

3: In the title of inserted section 66E, after “Creating” insert “or soliciting the creation of”

[Baroness Owen of Alderley Edge (Con)]

My Lords, I rise to speak to government Amendments 2, 8 and 9 and to my Amendments 3, 4, 5, 6, 7 and 10, which are tabled in my name and those of the noble Lords, Lord Pannick, Lord Browne of Ladyton and Lord Clement- Jones. In doing so, I declare my interest as a guest of Google at its Future Forum, an AI policy conference.

First, I thank the noble Lord, Lord Ponsonby, who has taken so much time in the past few weeks to meet me and discuss my concerns. I am very grateful for his patience and work in getting the new government amendment to a much stronger position than the original one. I am grateful for the undertaking to amend the time limit for prosecuting cases so that prosecution can take place even after six months have elapsed from the commission of an offence.

Amendments 3, 7 and 10 relate to my substantive amendment, Amendment 4, on soliciting sexually explicit content. I thank the Minister for his commitment to ensuring that solicitation will be included in the Bill when it reaches the Commons after scrutiny by parliamentary counsel. However, noble Lords will know that I have been urging the Government to tackle solicitation and that I am entirely inspired by the experience of Jodie, whom many noble Lords have met, and many women like her.

I echo the words of the noble Baroness, Lady Morgan, that my concern about solicitation is not new. In fact, I first flagged the issue to your Lordships’ House in July last year, so I cannot help but feel disappointed that, after all this time, the Government are still asking for longer. Solicitation is an integral part of the amendment, and I believe we cannot risk the amendment going to the Commons without its inclusion. I know so many of us, and the survivors watching, will feel far more reassured to send this Bill to the Commons with the wording clearly stating that the offence is committed irrespective of the location of the person or persons solicited, whether or not they are identified and whether or not the creation occurs.

I turn now to Amendment 5, which would remove reasonable excuse. This was an issue first highlighted to me by the noble Lord, Lord Pannick, on Report. The amendment speaks to our concern that reasonable excuse may be interpreted in a way that Parliament has not intended and may allow abusers to escape justice, leaving victims traumatised.

Finally, Amendment 6 gives judges the option of imprisonment as well as a fine. It is vital that the Government take a strong position in standing up to those who abuse women in this appalling way. I am sure that noble Lords will agree that there is no expectation that every perpetrator will end up in prison, but it is vital that the option is open to judges so that, in the most extreme of cases, there is a deterrent to show how seriously, as a society, we take this form of digital violence against women. Campaigners agree, saying that if you do not have prison, abusers will think they are untouchable. There is an attitude of being emboldened. Jodie and Sophie, both survivors, have independently described the Government's proposal of a fine as simply insulting. Jodie said:

“for the most serious cases of deepfake abuse, prison sentences must be an option for judges. The effect of this abuse is devastating, and the sentencing must reflect that”.

Sophie agreed that a fine would not have deterred her perpetrator and described the proposal as an insult to those whose lives are turned upside down.

My understanding is that the Government’s proposed non-consensual taking offence will rightly have the option of a prison sentence. I would be interested to know the Government’s reason for deeming that non-consensual taking can result in prison but non-consensual creation cannot. Internet Matters found that teenagers saw sexually explicit deepfakes as worse than real image-based abuse, for reasons such as lack of autonomy and awareness of the image, anonymity of the perpetrator and the ways in which the images may be manipulated to make the victim appear. I am sure that, like many young women, I am struggling to comprehend a legal system that offers a heavier punishment for fly-tipping than for the violation of my consent. How many more women must suffer before we finally treat VAWG offences on a par with other crimes?

I asked campaigners to share with me some of the language used to solicit this content when men posted clothed images with requests to put women in sexually explicit content. It gives an insight into the mind of the people who inflict this abuse on women. A milder one stated, “I want her done for two reasons. One, she is hot. Two, she has a huge ego and this will humble her”. Another said, “Do whatever you want to this woman. Degrade her”.

The vast majority of the language was far more extreme and left me feeling physically sick. I implore the Government to listen to the voices of survivors and to not close off the option of prison when prosecuting the people who inflict this appalling abuse, ripping away a woman’s consent to degrade her. I urge noble Lords across this House: think of the women in your lives—your daughters, granddaughters, nieces, wives. If someone had abused them in this appalling manner, would we still be saying that prison should not be an option?

For too long, women have had their pain minimised and their experiences belittled. We are at the precipice of a new age of extreme misogyny and I urge noble Lords to please strengthen the hands of the judges to tackle this abuse. I beg to move.

[Lord Pannick (CB)]

The skill and determination of the noble Baroness, Lady Owen, have persuaded the Government to address this important topic in the Bill. She has performed a great service to this House. I thank the Minister, most sincerely, and the Bill team for bringing forward their Amendment 2, and for the amount of time and trouble they have taken on this subject and their patience in discussions on this matter.

The Government have come a long way in their Amendment 2, but I agree with the noble Baroness, Lady Owen, that there are three improvements that this House can and should make to the Bill before it travels to the House of Commons. The first is to add an offence of soliciting a purported intimate image. That is the subject of Amendments 3 and 4 from the noble Baroness, Lady Owen. The people who create the purported intimate image are often outside the jurisdiction, so the law needs to penalise and deter those in this country who solicit such images from people abroad. There is no dispute from the Government. The Minister made it very clear on Report and again today that such solicitation should be an offence. The Government accept that it should be an offence whether the person solicited to create the image is here or abroad. The Government also accept that solicitation should be an offence whether or not the image is, in fact, created. All of that is agreed and Amendments 3 and 4 from the noble Baroness, Lady Owen, do the job.

The Government’s position, as the Minister has said, is that the solicitation offence will be added—he gave this commitment—in the House of Commons. I simply do not understand why a solicitation offence cannot be added in this House, to make it clear to the House of Commons that noble Lords believe that this is of fundamental importance.

16:30

I greatly respect the integrity of the Minister. I have had many dealings with him over the years and I greatly respect him, but all noble Lords will know that, once this Bill leaves this House, matters are out of our hands —and out of his hands. There are all sorts of reasons why the Government might change their mind on including a solicitation offence in the Bill, and then this House would have no opportunity to come back to the matter.

I hope that noble Lords will agree with the noble Baroness, Lady Owen, that this House should take this opportunity to include a solicitation offence, when there is no substantive dispute from the Government that it should be included in the Bill. As the Minister said in his very sensitive opening remarks, a solicitation offence is “an important part of the package” and is needed—that is what he said, and I respectfully agree—to make the legislation effective. The amendment of the noble Baroness, Lady Owen, does the job and I hope that we will support her.

The second improvement to which I hope the House will agree is to remove the “reasonable excuse” defence that is included in the Government’s Amendment 2, under new Section 66E(5). Amendment 5 from the noble Baroness, Lady Owen, would remove the reasonable excuse defence. The reason I support her on this is that I can see no circumstances in which there could be a reasonable excuse for the defendant’s conduct if the prosecution proves, as it must, the elements of this offence. Those elements, as defined perfectly properly by the Government, are that the defendant has intentionally created “a purported intimate image” of the victim; that they have done so when the victim has not consented; and that the defendant “does not reasonably believe” that she has consented. The prosecution has to prove all of that.

I asked the Minister on Report to give an example of when a reasonable excuse defence might apply if all those factors were proved. With respect, he did not do so. He has suggested in discussions that a defendant might lack mental capacity or be very youthful, but in such a case the CPS would need to prove an intention to create the image and mental capacity or youth would, of course, be important factors that the sentencing magistrate or judge would be bound to take into account.

I would add that for the legislation to include a reasonable excuse defence would be wrong in principle, because Parliament would be saying that such conduct—the conduct we are discussing—could be excusable, and it is not. To include such a defence would also be unfortunate in practice, because the inevitable consequence will be that defendants take up the court’s time presenting spurious excuses such as—this is what happens— “I was only having a laugh” or “The victim lacks a sense of humour”. That type of defence, and others, will add to the distress of the victims. A reasonable excuse provision has no place in this offence.

With great respect, I do not understand the Minister’s suggestion that the absence of a reasonable excuse defence would conflict with the European Convention on Human Rights. There can be no breach of the defendant’s human rights unless that person can bring forward an excuse which is reasonable. As I have suggested, it is impossible to envisage in what circumstances the excuse would be reasonable. You need to be a victim to have a human rights argument, and the defendant in this case is not a victim; the victim is the unfortunate woman whose privacy has been violated.

The third improvement that the amendments tabled by the noble Baroness, Lady Owen, address is to include in the Bill a power for the court not merely to impose a fine, which is the Government’s position, but, where appropriate, a sentence of imprisonment. The noble Baroness, Lady Owen, is proposing that the sentencing magistrate or judge should have the option—I repeat, the option—in severe cases to impose a sentence of imprisonment.

It is not difficult to envisage cases where a sentencing magistrate or judge should have the option of imposing a sentence of imprisonment for creating a purported intimate image of the victim. Suppose that the defendant has committed this crime on an industrial scale, with hundreds of victims. Suppose that the defendant had a previous relationship with the victim, which she has ended. Perhaps she declined to enter into a relationship with the defendant, and he has decided to punish and humiliate her as an act of revenge by using an innocent photograph that he has of her to create the purported intimate image, knowing that she has a particular mental vulnerability and that his conduct will lead to her having a mental breakdown when she learns that the purported intimate image of her is being seen by people in her community. Can the Government seriously maintain that, in a case such as that, the magistrate or the judge should be denied the option of imposing a sentence of imprisonment?

If the Minister will not think again and will not accept the amendments tabled by the noble Baroness, Lady Owen, on these three important issues, I hope that the noble Baroness will divide the House. If she does, she will certainly have my support.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I support everything that the noble Lord, Lord Pannick, has just said. Any of us who have ever acted as lawyers for women who have been exposed to this kind of conduct will know the suffering that ensues from it. The arguments placed before the House by the noble Baroness, Lady Owen, are absolutely right. The court has to have wider discretion on sentencing, because sometimes it will be, as the noble Lord, Lord Pannick, has said, that multiples of this will have been done and to many different women. It will be there on the internet for all to see, causing incredible mental anguish and pain.

I have just come from a Select Committee where we have been hearing evidence about transnational repression. We have just heard from a woman working for BBC Persian, who had the experience of photographs being turned into deepfake pornography and sent to her daughter’s school. I ask you to imagine the implications of that being circulated, to your own child’s detriment. That is the way in which these things work. I emphasise that there is no example of reasonable cause that could be imagined that could justify it—there really is not. It is very important that we all recognise that.

There will be people—let us imagine Mr Andrew Tate appearing in court for an offence of this kind, were he to do it—who will say that the world should see the beauty of women’s genitalia and admire the great beauty of women as they submit themselves to men. Do we really want the time of the courts to be taken up with that kind of nonsense—because it will be? It will be said to be about trying to inform and educate people about sexual intimacy and sexual matters. All manner of nonsense, presented as reasonable excuse, will be put before the courts—that is what will happen. I urge the court—sorry, I am going into lawyer mode. I urge the House, rather, to see the seriousness of this and that this is a moment where we should be taking a stand and saying no.

The noble Lord, Lord Pannick, raised three issues: sentencing and the options available to judges; the issue of reasonable excuse; and recognising that the prosecution authorities will not pursue a case against a child who has somehow stumbled upon a way of doing this. Very careful decisions will be made about people who have not got mental capacity. If we do not take a firm stance on this now, it will be used and abused in terrible ways, to the detriment particularly of women.

[Lord Phillips of Worth Matravers (CB)]

I simply want to endorse, but not repeat, the propositions of law advanced by the noble Lord, Lord Pannick.

[Baroness Butler-Sloss (CB)]

I will do exactly the same. It is extremely important that magistrates should have the power to imprison as well as to fine.

[Baroness Kidron (CB)]

I have spoken to these amendments at every stage of the Bill. One of the unfortunate outcomes of being a campaigner for online safety is the abuse that we get directly from people who do not want the online world to be safe. That abuse comes in all forms, including that which the noble Baroness is trying to criminalise. I say to the House that we must support the noble Baroness. I am so disappointed that the Government are not here with us. Support the noble Baroness.

[The Earl of Erroll (CB)]

My Lords, I have a couple of quick things to say. First, there is no reason not to put this into the Bill here; it can be amended in the Commons quite happily. Secondly, without solicitation in the Bill, there is a massive loophole. One can work out exactly how to get round the whole thing by just inserting someone soliciting in the middle. The other thing is that this can happen to men and could be used for blackmail, so this could be used against that, which is very dangerous. We need imprisonment in the Bill, because if someone makes enough money out of whatever it is that they put out there, a fine is nugatory and they will not worry about it. We need to have imprisonment as well.

[Lord Sentamu (CB)]

My Lords, I endorse every word that the noble Lord, Lord Pannick, and the noble Baroness, Lady Owen, have said.

I congratulate the noble Lord, Lord Vallance, from the Government, on bringing forward his amendment, which also incorporates the noble Baroness, Lady Kidron. The noble Baroness stood up and could not be deterred— I am glad that this has been a good result.

Noble Lords might want to know why the Government have put forward this amendment. A notification from the BBC came to my mobile at 1 pm. It had to do with Naga Munchetty, who says:

“Scammers spread fake nude pictures of me on social media”.


The scammers have written an article—which is absolutely false—saying, for example, that the Government have ordered Naga Munchetty to be detained, and it includes a lot of nude pictures. Given what the Government and the noble Lord, Lord Vallance, have done, that lady will feel that we are moving forward.

Finally, I say that soliciting must be in the Bill; reasonable doubt, or whatever other view, must be out; and imprisonment must be in the Bill.

[Lord Browne of Ladyton (Lab)]

In speaking to this group of amendments, I am mindful of the admonition from my noble friend the Chief Whip to respect the rules of the House, and I look at the advice that we are given on today’s agenda about how to conduct oneself in these circumstances, so I have no intention of repeating what the noble Baroness, Lady Owen, and indeed the noble Lord, Lord Pannick, have said, because I agree with every single word of it—and I agree with all the endorsements of the arguments that they have put forward. However, I want to make a contribution to this debate about the purpose of all this and what the issue is.

16:45

I thank my noble friend the Minister for the way in which he and the Bill team have conducted themselves and for their ability to listen and on occasion to act, which is a limited commodity sometimes in debates in your Lordships’ House, but it just has not gone far enough. For all the reasons that have been given, we should continue to deal with the issue of solicitation here, if we possibly can, because it is relatively simple. I do not know what the complication is: if people do things in this jurisdiction to avoid being prosecuted for doing other things, which is what solicitation is about, we should criminalise it—and we do in every other area of the law, as I have said before. I am trying not to make the same speech that I have made about three or four times on this.

On Monday, I was witness to a conversation about the challenges and priorities that the UK faces in the current geopolitical context in terms of its national security. One party to that conversation asked the other for an assessment of the highest-priority challenges faced in this current geopolitical environment and the other, who is an expert in national security, said in their opening remarks that we live in an age of impunity. We certainly do in that context, but it is clear from the data in relation to the creation and dissemination of these abhorrent AI-generated images that that is exactly where we are and where almost every woman or girl in the United Kingdom is in relation to this form of sexual abuse.

The victims, and those who feel that they may be victims but do not know about it yet, or who have been threatened to be victims, feel that they are living in a world of impunity. They feel that the perpetrators are committing these acts with no fear of sanction—or, indeed, the social consequences that should result from that. I am advised repeatedly that 98% of deepfake videos online today are pornographic and that, of those, 99% are of women or girls and have been created for misogynistic or revenge porn reasons. Despite the fact that we have criminalised the sharing of these images and that such an act attracts summary penalties under the Sexual Offences Act 2003 and the amendments to it in the Online Safety Act, there has been an almost negligible number of prosecutions and even fewer convictions. I do not know how many there have been and, if I asked my noble friend the Minister how many, I do not know whether he would be able to tell me, but it is a negligible number.

If and when these amendments pass into law, including the three amendments on what the noble Lord, Lord Pannick, identified as the main unresolved issues, they will help to end the feeling of impunity that scars the victims and ensure that everyone who creates or solicits the creation of such an image or video without the consent of the person involved will be committing a crime. Nothing can be less ambiguous than the operation of cause and effect. Perpetrators must know that this country has determined that it is criminal to create these images in these circumstances with no defence—and the defences are limited—and that they will be punished and unable to avoid the consequence by just getting someone else to do it on their behalf.

This legislation with the amendments proposed performs three principal tasks. With respect to those who serve us in various departments in this Government, it has been far too difficult to establish those three principal tasks. First, they establish consent as the determinant of criminality in these sexual abuse cases, as it already is in all other sexual abuse cases, thereby removing the burden on victims of engaging with the challenge of proving motive, which they should never have been asked to engage in. Secondly, they criminalise the solicitation or commission of sexually explicit deepfakes—I prefer the word “commission”, because there is a financial element for some of the people who create them solicited by others. Thirdly, in the guise of Amendment 6, they open the possibility of jail time for the perpetrator if the court regards that as appropriate in the specific case.

The measure of success of these provisions, if enacted, will lie not in the number of convictions brought, let alone jail time served, but in the number of women who do not become victims of deepfake sexual abuse in the first place, and in the more women and girls there are who are relieved of the fear that it may be happening to them and they do not yet know it, or that they can be threatened with it. As with the discussion of the strategic security issues to which I alluded in my earlier remarks, the key is not prosecution but deterrence. We know that, in any context, deterrence works only when it is rests on the possibility of an appropriately severe response where infractions are committed or where society is resilient to such behaviour—so deterrence by resilience.

I do not envisage a welter of convictions and short sentences resulting from these amendments—an issue that is particularly acute given the disastrous inheritance that this Government were bequeathed by their predecessor in terms of the prison estate and overcrowding —but the possibility must be written into law to deter those who may otherwise choose to commit such crimes. Noble Lords will recall a phrase from Coriolanus: “Action is eloquence”; however, when making legislation, it is not the act of prosecution that is desired—in fact, one can argue that that is an admission of a societal failing—but establishing a causal nexus of sufficient severity to ensure that bad actors choose not to incur severe risks to themselves and instead keep within the law.

In closing, I return to something that I said on Report—which is probably a breach of one of our pieces of guidance. We know that the march of technology and the feeling of anonymity and impunity afforded by the internet have conspired to make this problem epidemic. The amendments to which I have put my name and which have been championed with such energy and forensic advocacy by the noble Baroness, Lady Owen, and the noble Lords, Lord Clement-Jones and Lord Pannick, engage these challenges in a manner that I think is proportionate and just. It is for those reasons that they should stand part of this Bill as it becomes law.

[Baroness Bertin (Con)]

My Lords, I back 100% my noble friend Lady Owen’s amendments and pay tribute to the powerful contributions to this debate. I have spent the past year working on a pornography review, which I hope the Government will publish as soon as possible. I back these amendments 100%. This is an industry that is out of control and growing. There are so many victims—there are victims in the past and there will be many victims in the future. If these amendments are not backed, the Government will be falling short and failing those victims. I do not believe that this Government want to fall short; I have huge faith that they want to meet their targets on halving VAWG over the next few years. They will not meet that target, however, if they do not act bravely and take thorough, proper decisions on these kinds of crimes. We must back these amendments.

[Lord Sandhurst (Con)]

My Lords, I can be very short; there are three points. First, it must be right to include solicitation; it is integral to the success of this Bill, and it is necessary to do so. Secondly, to omit “reasonable excuse” is obviously right. It would be incompatible with the Bill to include it. Thirdly, it must be right to have imprisonment as a sentencing option in appropriate cases. What about someone who has done it before, particularly in respect of the same victim?

[Lord Butler of Brockwell (CB)]

My Lords, I want to say just one thing. In light of what has been said, I urge the Government to accept these amendments. They will do themselves no credit by resisting them, and I am certain the amendments will be passed.

[Lord Clement-Jones (LD)]

My Lords, I think we have an open-and-shut case. I start by congratulating the noble Baroness, Lady Owen, who has recruited a formidable group of Members of this House in support of her amendments. I cannot understand why the Government are allowing what could have been a very civilised agreement to founder on these three rocks. That seems to me to be quite extraordinary, particularly when we have heard that forensic tearing apart of the Government’s case by the noble Lord, Lord Pannick. One of the great campaigning skills of the noble Baroness, Lady Owen, has been to recruit him to deliver an absolutely brilliant destruction of the Government’s case. The “reasonable excuse” and solicitation aspects are both coach and horses. We do not want the Bill to leave this House without the noble Baroness’s amendments; otherwise, a coach and horses will be driven through those provisions.

As for the imprisonment aspect, that is probably the most important of the three for many of us. All the other comparable offences—false communications; threatening communications; encouraging or assisting serious self-harm; cyber flashing; revenge porn; epilepsy trolling; harassment and stalking—are imprisonable to a greater or lesser degree, so we really ask the Government to rethink their position before going to a vote. We will support the noble Baroness, Lady Owen, if she pushes this to a vote, which I very much hope she will if the Government do not concede. She used the phrases “digital violence” and “extreme misogyny”. Digital violence leads to and constitutes extreme misogyny, and that is why we are so passionate about this offence and getting it right.

[Viscount Camrose (Con)]

My Lords, I too support my noble friend Lady Owen in her amendments. Thanks to her tireless and frankly inspiring work, we have an opportunity to make a real difference now—today. She made a powerful and disturbing case for her amendments, and we have heard in Committee, on Report and now today how important these changes are to the many women who have already been victims of deepfakes. This is clearly something we need to address urgently to protect others from being victims in future and to bring perpetrators to justice. Deepfakes can ruin lives, and now is the time to act. In this, my noble friend has our full support.

I congratulate the Government on having travelled some way in tabling their amendment today. We are disappointed that they have still not been able to deliver including solicitation in the proposed offence. My noble friend’s amendments would ensure that it is an offence to solicit—I, too, rather prefer that term—or commission the creation of these kinds of images, and we support her inclusion of solicitation in the new offence.

Of course, I understand that the Government plan further amendments, but for now we are also disappointed that they have decided not to give the courts the option of imposing a custodial sentence on those who commit this new offence, and have chosen not to remove the “reasonable excuse” defence when a defendant has intentionally created an image of this type. Given the seriousness of the new offence and its significant impact on the lives of victims, this new law must have more teeth. We support my noble friend in bringing Amendment 6 to the House, and we will vote with her on this and her other amendments if she chooses to test the opinion of the House. Like others, I rather hope she will.

I conclude by once again paying tribute to my noble friend, who has assembled such a distinguished and respected group of signatories to and supporters of her amendments. Her approach to the Bill is in the highest traditions of your Lordships’ House, and I am proud to support her today.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been both a wide-ranging debate and a specific debate on the noble Baroness’s three amendments. I will deal first with the solicitation point. We have heard the strength of feeling, and the Government will not oppose the noble Baroness’s Amendments 3, 4, 7 and 10. As I said, we had wanted to do it another way, but we recognise the strength of feeling expressed in this debate.

17:00

I turn to Amendment 5, the “reasonable excuse” amendment. As the noble Lord, Lord Pannick, said, we had a discussion on Report in which I did not actually put forward what a reasonable excuse might be, but in a subsequent private discussion, I postulated that it might be a young person or somebody who lacked mental capability. I still think those are cases where one might advance that argument, but a more general point is that it is very common in courts up and down the land to have “reasonable excuse” arguments. One hears those arguments all the time, and it is for judges and magistrates to decide whether they think they are indeed a reasonable excuse. There is nothing unusual about that at all. Since the offence itself is, first, so widely drawn, and, secondly, novel, it is prudent to include the “reasonable excuse” wording within the definition of this offence. So, we will be opposing the noble Baroness’s Amendment 5.

All the examples given by the noble Lord, Lord Pannick, the noble and right reverend Lord, Lord Sentamu, and my noble friend Lady Kennedy were sharing offences, which are already imprisonable offences. The offence we are talking about is the creation of an image, not sharing or threatening to share. We agree that that should be an offence, but the maximum sentence will be an unlimited fine—potentially, an unlimited fine for each image. We think that that is appropriate, rather than having an imprisonable offence, so we disagree with the noble Baroness on Amendments 5 and 6.

We support the creation of this new criminal offence. In many other aspects of law, we are looking at how to combat this evil developing in the online world, but the approach we have outlined is the best one, and I urge noble Lords not to support the noble Baroness in Amendments 5 and 6.

[Baroness Butler-Sloss (CB)]

Before the noble Lord sits down, may I ask him about the aspect of deterrent? You may have someone—or a company—who is inordinately rich, or someone who is extremely poor, for whom, as he knows, a fine will not work because they do not have any money. There will be instances where a fine would not do but the deterrent would be the possibility of prison.

[Lord Ponsonby of Shulbrede (Lab)]

The noble and learned Baroness makes a fair point. In practice, this offence is very likely to be charged with the threat to share and other offences, which are of course imprisonable in their own right. As I said, there is no limitation to the number of offences that can be charged. We think it more appropriate that this be a fine-only offence, given the plethora of other offences which can be charged in this field.

[Baroness Owen of Alderley Edge (Con)]

It is important to clarify that someone can be in a relationship with a partner who creates a sexually explicit deepfake, which presents a very real threat to that person even if their partner has not actually threatened to share it. That is what campaigners and victims believe: if you are in this kind of relationship and you know that someone has developed these sexually explicit deepfakes without your consent, that presents a very real threat. We believe that should be imprisonable.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in a sense, this will be tested in the courts. If the woman knows that the images have been created, the threat is there; that is what she is worried about. Of course, that is a separate offence, as I have already said. On the offence where there is no threat and it is just the creation of the image, we believe that a fine-only sentence is appropriate.

Amendment 3 (to Amendment 2) agreed.

Amendment 4 (to Amendment 2) agreed.

Amendment 5 (to Amendment 2)

Moved by

[Baroness Owen of Alderley Edge]

5: In inserted section 66E, leave out subsection (5)
Member's explanatory statement
This amendment would remove a “reasonable excuse” defence when a defendant has intentionally created the purported intimate image, the victim does not consent and the defendant does not reasonably believe that the victim consents.

17:06

Division 1

Ayes: 318

Noes: 130

17:21

Amendment 6 (to Amendment 2)

Moved by

[Baroness Owen of Alderley Edge (Con)]

6: In inserted section 66E(6), leave out “a fine” and insert “imprisonment for a term not exceeding the maximum term for a summary offence or a fine (or both)”
Member’s explanatory statement
This amendment seeks to ensure that the courts have the option of sentencing a convicted defendant to a term of imprisonment if the court thinks that is appropriate in the circumstances of the individual case.

[Baroness Owen of Alderley Edge (Con)]

My Lords, this gives me a chance to thank all noble Lords for their contributions. It is essential that we have prison as a deterrent in our fight against this appalling abuse. Victims view a fine as an insult and, with that in mind, I wish to test the opinion of the House.

17:21

Division 2

Ayes: 302

Noes: 132

17:33

Amendment 7 (to Amendment 2)

Moved by

[Baroness Owen of Alderley Edge]

7: In the title of inserted section 66F, after “Creating” insert “or soliciting the creation of”

Amendment 7 (to Amendment 2) agreed.

Amendment 2, as amended, agreed.

Clause 142: Extent

Amendment 8

Moved by

[Lord Ponsonby of Shulbrede]

8: Clause 142, page 174, line 22, at end insert—
“(c) section (Creating purported intimate image of adult) (creating purported intimate image of adult) extends to England and Wales only.”Member’s explanatory statement
This amendment provides that the new Clause “Creating purported intimate image of adult” extends to England and Wales only.

Amendment 8 agreed.

In the Title

Amendment 9

Moved by

[Lord Ponsonby of Shulbrede]

9: Title, line 18, after “services;” insert “to make provision about the creation of purported intimate images;”
Member’s explanatory statement
This amendment is consequential on the amendment inserting the new Clause “Creating purported intimate image of adult”.

[Lord Ponsonby of Shulbrede (Lab)]

I beg to move.

Amendment 10 (to Amendment 9)

Moved by

[Baroness Owen of Alderley Edge]

10: After “creation” insert “and solicitation”
Member’s explanatory statement
This amendment relates to Amendment 4.

Amendment 10 (to Amendment 9) agreed.

Amendment 9, as amended, agreed.

A privilege amendment was made.

17:34

Motion

Moved by

[Lord Vallance of Balham]

That the Bill do now pass.

[Lord Vallance of Balham (Lab)]

My Lords, this Bill has had a lively and long previous life, with many of these areas having been debated over the years by noble Lords sitting here today. I would like to give a brief summary of some of the changes that have been made to the Bill, as well as reflecting on some of Bill’s core aims.

I start by giving thanks. I hope I will be forgiven for not naming every noble Lord who has spoken on this Bill to date. I extend my gratitude to my noble friend Lady Jones, who I am sure everyone here is delighted to have back. She laid excellent foundations in getting the Bill through its initial stages in the House. I am sure that noble Lords will want to join me in wishing my noble friend a swift and full recovery.

This has been my first experience leading on legislation in this House. I apologise for when I got things wrong. I have learned a great deal. I am grateful for both the support and the many shades of advice that I have been given.

On the deepfakes point, I join the many noble Lords who have expressed their admiration for the work of the noble Baroness, Lady Owen. It is her first time bringing an issue of such great importance to a debate. She has done so with great skill, determination and passion. The Government have undoubtably heard your Lordships’ clear views on this crucial issue.

The other area of the Bill that has been strengthened today is on children’s data. We have put into law the children’s higher protection matters. I extend thanks to the noble Baronesses, Lady Kidron and Lady Harding.

The noble Lord, Lord Bethell, raised excellent points about online harms research, and we had a robust discussion of automated decision-making thanks to the noble Baroness, Lady Freeman of Steventon, the noble Lords, Lord Clement-Jones and Lord Markham, and the noble Viscount, Lord Camrose.

More broadly, many noble Lords contributed to the debates on AI and copyright, including the noble Lords, Lord Bassam, Lord Freyberg and Lord Holmes, and the noble Earl, Lord Clancarty. I agree that AI poses some of the most pressing questions of our time, and the strength of feeling on copyright is clear. I emphasise that we have heard this House. We are listening, including with our open consultation, and, as I have said several times, we are committed to making the right decision on this—and right means right for all parties.

We wholeheartedly agree with the noble Viscount, Lord Colville, on the importance of scientific research and that scientific research is in the public interest, even though we still have some concerns on the formulation and unintended consequences of the specific amendment. I thank him for raising the debate and bringing different opinions to the table.

As my noble friend Lady Jones said at Second Reading, data is

“integral to almost every aspect of our society and economy, from NHS treatments and bank transactions to social interactions”.—[Official Report, 19/11/24; col. 146.]

I will use this final part of my speech to highlight some of the areas where there has been agreement across the House and which highlight some of the huge potential that data and the contents of the Bill can have on our lives.

We have new provisions for smart data schemes and new digital verification services to provide new ways for people to prove and verify identities. The maps provided by the creation of the national underground asset register will improve the efficiency and safety of the way we install, maintain, operate and repair our buried infrastructure. We have a new soft opt-in mechanism for charities, which will help them raise vital funds by allowing them to continue to reach out to supporters.

The contents of the Bill support delivery of every one of the five missions set out by the Prime Minister. I know that in the other place there will be further discussions on the Bill and on the changes that noble Lords have made. I am in no doubt that there will be further disagreements, but I am sure that Members will be grateful for the time and scrutiny afforded to the Bill. That will only make it a better Bill and will ultimately help it achieve its aims to harness the power of data, drive economic growth, support modern digital government and improve people’s lives.

Finally, I thank the officials who worked on the Bill, including the Bill team: Simon Weakley, Lois Clement, Ryan Jones, Robyn Connelly and Joy Aston.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I was very pleased to hear my noble friend Lord Vallance’s words in relation to what we have been doing today and also taking a broader conspectus of what we have been doing in the longer periods of Committee and Report. I think he has answered the question I was going to leave him with, which was on whether the Government were in listening mode when the House took such determined decisions, as it has done on a number of issues, which I know he was opposed to. I hope that I am right in assuming that he is saying that he understands the motivation behind them, which is in no sense to try to wreck the Bill but, in the best interests of this House, to try to make sure that what comes out of it reflects the wider experience and range of views that can come from those who have knowledge and understanding of this Bill.

As he said, this is not the first data protection Bill we have—I was going to say “endured”, but that is not right—enjoyed, and we have been through a number of the issues that have surfaced again in the past few weeks at other times. As we heard in Committee—a number of people have said this and I think it is still true—this is really not the data protection and data processing Bill that we need. What we have is an attempt to try to bridge some of the infelicities that have occurred in recent years because of the combination of legislative processes that have happened within the GDPR, Brexit and the Data Protection Act 2018. That does not make it the Bill we could have had. I am not forecasting, but I suspect that we will probably have to return to this within a few years to try to bring forward some of the issues that are still buried in this, which do not come out quite as well as they could do, and I look forward to that.

The Minister was right to say that this is his first major piece of legislation. I think he has done extraordinarily well to be able to pick up the mantle and the first steps taken by my noble friend Lady Jones, who we welcome back. I also pay tribute to the Bill team, who have been exemplary in trying to provide the information we need to make the best decisions.

We will see the Bill back in due course. It will have, presumably, changes to some of the issues on creative copyright, scientific research and some other points that the noble Lord mentioned. I hope that, when that happens, we will have an opportunity to reflect on that together, and I make an open invitation to the Minister to engage with some of the people he has named already, whose clear interest in this has been flagged to him. I am sure they would want to try to continue the discussion before we go into the formal processes.

[Lord Clement-Jones (LD)]

My Lords, I think we have had quite enough excitement for one day. I want to thank colleagues all Benches—they know who they are—for making the fairly gruelling passage of this Bill endurable. I thank the noble Baroness, Lady Jones of Whitchurch, and the noble Lord, Lord Vallance. We were sorry to lose the noble Baroness, Lady Jones, but the noble Lord, Lord Vallance, played the part of a kind of impact substitute in the second half of the match, and I thank him. I thank Mohamed-Ali Souidi in our Whips office for his enormous hard work on this Bill. I also thank the rather sleep-deprived Bill team. They engaged constantly on the Bill and what has resulted is a much better Bill than its predecessor, the DPDI Bill—but it is still not perfect.

I think we have made some progress, as the Minister outlined, on the charities’ soft opt-in, which I welcome that very much, the automated decision-making code to be drawn up by the ICO, the jurisdiction review, which was not heralded in Hansard, but I very much hope that the MoJ will get that under way, enhanced children’s duties, which were just passed today, assurances on researcher access to the noble Lord, Lord Bethell, and two enormous strides, potentially. I tend to think of the noble Baroness, Lady Kidron, and the web crawlers as a new rock band, but we place a lot of hope that the Government will see the light on that and that in due course we will also see the outcome of the debate on what constitutes scientific research. Of course, the noble Baroness, Lady Owen, has triumphed today with her new offence and I very much hope that, in its full form, it will take its place in statute.

Sadly, there was no movement on ministerial powers in key areas such as recognised legitimate interest, but we live in hope that this Government will, at least at some stage, have a self-denying ordinance. We are not there yet; maybe we have to keep plugging away in future Bills. But we are a lot more content with this Bill going forward to the Commons than we would have been if the DPDI Bill had gone in the same direction.

17:45

[Viscount Camrose (Con)]

My Lords, this Bill has an unfortunate combination of being extremely important and somewhat obscure, but we have between us scrutinised it very closely over the past few months. Thanks are very much due to the noble Lord, Lord Vallance—particularly for stepping in, as the noble Lord, Lord Clement-Jones, said, as an impact substitute—to the noble Lord, Lord Ponsonby, the noble Baroness, Lady Jones of Whitchurch, and, of course, to the noble Lord, Lord Leong, for their constructive engagement and the—I cannot think of a better word—professional way in which they have taken this Bill through our House. It has not been an easy Bill for any of us. I know at first hand how demanding some of its elements are for Ministers and I am pleased to have the chance at this point to express my appreciation.

I thank all noble Lords for their contributions throughout Committee and Report and, indeed, tonight. We hope the other place will look favourably on the constructive amendments that we have all made to this Bill and we look forward to continuing to engage with the Government as it makes further progress.

Bill passed and sent to the Commons.