Lord Hanson of Flint
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Baroness Kennedy of The Shaws (Lab)
Before my noble friend rises to reply, I want to emphasise, as someone who has practised at the Bar over many decades, like the noble Baroness, Lady Cash, the importance of our recognising in the course of these discussions that, while we are dealing here with a spate of offences clearly committed by gangs of Pakistani men, this is not confined to Pakistani men. The Epstein case has told us quite clearly that upper-class white men with power can abuse and groom and commit these crimes. I have seen it since my early years at the Bar. I see the noble Lord, Lord Thomas, sitting there, and we acted in cases involving East End gangs who passed around girls who were part and parcel of that world. Nowadays, in the drugs world, pass-around girls, who are often underage, are part and parcel of that world. So we must not become fixated on the idea that this happens only in certain communities. I just want that to be emphasised.
The Minister of State, Home Office ( Lord Hanson of Flint) (Lab)
I am grateful to all those who have spoken in what I think everybody in the Committee will accept is a very wide set of amendments, covering a large number of issues. I shall try my best to summarise and respond on behalf of the Government as a whole.
I start by saying that the horror of the events that have led to the discussions that we have had today need to be recognised, and I need to say from the Government Front Bench that we wish to ensure that we prevent those events happening in future. I just remind the Committee that the Government have been in office for 17 months so far, and the Bill before the Committee today includes a wide range of measures that have arisen out of reports published before the Government came to office, including the IICSA report under Alexis Jay, and are starting to look at some of the issues that have come out of the inquiries and discussions that we have had on issues, including the audit from the noble Baroness, Lady Casey, on group-based child sexual abuse.
I also place on record, and remind the Committee, that the Government accept all the recommendations that the noble Baroness, Lady Casey, has made, and are seeking to put those recommendations into practice. I accept today that there are a number of amendments down and discussion points pressing the Government on a range of issues, but I hope that we all have the same objective in mind, which is to prevent further similar horrors.
Lord Blencathra (Con)
Why, then, was it legitimate to pass the War Crimes Act, bringing to justice someone who committed crimes, not even in this country, 50 years ago?
Lord Hanson of Flint (Lab)
The noble Lord has made his case. I have put my view. If he wishes to examine it further, we can do so in due course. I understand that he wants to bring people to justice. So do I, but the approach we want to take is different from his, and we will have to accept that.
Amendment 271B, in the name of the noble and learned Lord, Lord Keen, and Amendment 271C, in the name of the noble Lord, Lord Blencathra, would give effect to recommendation 1 of the National Audit on Group-based Child Sexual Exploitation and Abuse from the noble Baroness, Lady Casey, that the law should be changed so that adults penetrating a child aged under 16 are charged with rape. As I have said, the Government have accepted this recommendation and have committed to changing the law. I reassure noble Lords that we are working fast to consider how that law change should be made. We are discussing this. I met the noble Baroness, Lady Casey, as part of that work and I will update Parliament soon about our proposed approach but, at the moment, I hope that the noble and learned Lord accepts that we are committed to that legislation and will table it as soon as time allows.
Amendment 271C, in the name of the noble Lord, Lord Blencathra, would mean that someone suspected of or charged with a sexual offence against a child that involved penetration would be described as having committed rape, whether the penetration was penile or non-penile, and regardless of what the offence is actually called in legislation. It would also mean that a wide range of other non-penetrative offending behaviour would be referred to simply as sexual assault. I do not think that that meets the intention of the recommendation from the noble Baroness, Lady Casey, as it would not substantially change criminal law. Additionally, the difference in how offences are labelled in the Sexual Offences Act 2003 and mandating how enforcement agencies then refer to those offences could lead to operational confusion, which I hope the noble Lord would seek to avoid.
Amendment 271B, in the name of the noble and learned Lord, Lord Keen, which I have already mentioned, would create a new offence of rape which would apply when an adult penetrates with their penis the vagina, anus or mouth of a child aged 13 to 15. The offence would not require proof of an absence of consent or reasonable belief. I say to the noble Lord, Lord Davies, who spoke to it on behalf of the noble and learned Lord, Lord Keen, that the Government are committed to making this change in law. We have accepted the recommendations of the noble Baroness, Lady Casey, and we strongly agree with the sentiment behind the amendment. However, we are also aware of the need to ensure a robust framework of sexual offences, which must work effectively across all types of child sexual abuse. This will be a significant change to the framework and, as such, if the noble Lord will allow me, we need to discuss it with the police and prosecutors to make sure that they have the tools needed to bring abusers to justice. When we have done that and taken those considerations into account, we will change the law, and we will update Parliament when we do that. I hope he can accept that intention.
I am grateful to the noble Baroness, Lady Cash, for her Amendments 288A and 288B. These overlap with the provisions in Chapter 2 of Part 5, which provide for a duty to report, which we will come on to later; she noted and accepted that. We believe, after extensive consultation with the relevant sectors, that the model in that chapter is the appropriate one to adopt. Again, we can debate that later, and I am sure we will, but that is the Government’s view at the moment.
Amendment 288B seeks to create a criminal offence specifically in respect of concealment by public officials. I am mindful that the type of offence proposed by this amendment may overlap with existing statutory provision, including obstruction of justice offences. Later, we will come on to consider the offence of preventing or deterring a reporter from carrying out their duty in Clause 79, and it will be part of the appropriate way forward at that stage.
Finally, the noble Baroness, Lady Cash, also tabled Amendments 288C and 288D, which are about the collection of the ethnicity and nationality data of child sexual abuse offenders and victims. I note what the noble Lord, Lord Russell of Liverpool, said. The recommendation from the noble Baroness, Lady Casey, is to work alongside the police to establish improvements which are required to assist the collection and publication of this data. We have accepted that recommendation. This includes reviewing and improving the existing data that the police collect, as well as considering future legislative measures if required. The objective the noble Baroness, Lady Cash, has set is one that we have accepted. We are working through that at the moment and, although it may not be satisfactory today, it is an objective to which she and the noble Lord, Lord Russell, can hold us to account.
This is an important debate. I think we are at one on these things, but it is the Government’s firm view that most of the amendments are not the way forward or need further refinement along the lines that I have already outlined to the Committee. As I have said, the Government are committed to changing the law in relation to rape. We will take away amendments and consider this further for Report.
Given these caveats, let us go back to where we started on this wide-ranging group, which is whether we should have a statutory timescale for the inquiry. Going back to the lead amendment in this group, I hope the noble Baroness, Lady Maclean, will withdraw her amendment because we are trying to do this as speedily as possible. The converse impact of her amendment may well be to create a further delay to a process that the Government are determined to get down as quickly as possible, as the noble Baroness, Lady Walmsley, said, to land the inquiry and get further recommendations to tighten up areas in which we need to reduce—and, we hope, stop—the number of further victims of these awful crimes.
Baroness Maclean of Redditch (Con)
My Lords, I thank the Minister for addressing my amendment and the others in such detail, and my noble friends Baroness Cash and Lord Blencathra for adding their support.
Even though the Minister has not accepted my amendment and stated that the others do not fit with the Government’s plans, I welcome the agreement across the Committee that we all support the principle of the work that is happening. However, I make no apologies for standing up and saying that the system is still not adequate in many ways. I am sure that the Minister can recognise some of this. I remember sitting in the Home Office in 2021-22, when I was a Minister there, and asking for the data about ethnicity and whether there was any connection. I was told, “No, Minister, there is none”. We all know now that that was not the case. I wish to God we had known that then so we could have done more for the victims. Collectively, we have all let them down; this is not a party-political issue, but one in which we should feel ashamed about what has happened to those vulnerable girls in our country.
I accept the Minister’s point about the timeline and the passage of the Bill, and that, were he to accept my amendment, it would potentially be delayed further than any of us would wish. I beg leave to withdraw my amendment.
Lord Hanson of Flint
Member's explanatory statement
This amendment spells out, on the face of the Bill, that “satisfied” here means satisfied on the balance of probabilities
Lord Hanson of Flint
“ScheduleCCE prevention orders: ScotlandPower to make CCE prevention order
1 (1) This paragraph applies if—(a) the Chief Constable of the Police Service of Scotland, in accordance with paragraph 3, makes an application to a sheriff for a CCE prevention order in respect of a person,(b) the Sheriff Appeal Court or the High Court allows a person’s appeal against a conviction for any offence,(c) a person is acquitted of any offence by or before a court by reason of the special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995,(d) a court finds under section 53F of the Criminal Procedure (Scotland) Act 1995 that a person is unfit for trial and has done the act charged against them in respect of any offence, or(e) a court deals with a person convicted of an offence for that offence.(2) The court may make an order under paragraph 2 (a “CCE prevention order”) in respect of the person (“the adult”) if they are aged 18 or over and the conditions in sub-paragraphs (3) to (5) are met.(3) The first condition is that—(a) in any case, the court is satisfied on the balance of probabilities that the adult has engaged in child criminal exploitation or in conduct associated with child criminal exploitation, or (b) in a case within paragraph (c), (d) or (e) of sub-paragraph (1), the offence in question is an offence under section 40.(4) The second condition is that the court considers that there is a risk that the adult will engage in child criminal exploitation.(5) The third condition is that the court considers that it is necessary to make the order to prevent the adult from engaging, or reduce the likelihood of the adult engaging, in child criminal exploitation.(6) In sub-paragraph (3)—(a) in paragraph (a), the reference to engaging in anything includes engaging in it before (as well as after) the time when this paragraph comes into force;(b) paragraph (b) applies in relation to findings made in respect of conduct occurring before (as well as after) that time.(7) In this paragraph—(a) a reference to an adult “engaging in child criminal exploitation” is to the adult—(i) doing anything that constitutes an offence under section 40 (as it has effect in Scotland), or(ii) doing anything in England and Wales or Northern Ireland that would constitute an offence under section 40 (as it has effect in Scotland) if done in Scotland;(b) a reference to an adult “engaging in conduct associated with child criminal exploitation” is to the adult doing anything, in any part of the United Kingdom, that is associated with the doing of anything within paragraph (a)(i) or (ii).CCE prevention orders
2 (1) A CCE prevention order is an order which—(a) prohibits the adult from doing anything described in the order;(b) requires that adult to do anything described in the order.The order may in particular require the adult to comply with paragraph 6 (notification requirements).(2) A court may include a prohibition or requirement only if it considers it necessary for the purpose of preventing the adult from engaging, or reducing the likelihood of the adult engaging, in child criminal exploitation.(3) Prohibitions and requirements must, so far as practicable, be such as to avoid—(a) any conflict with any religious beliefs of the adult;(b) any interference with the times, if any, at which the adult normally works or attends any educational establishment;(c) any conflict with the prohibitions and requirements of any other court order or interdict to which the adult is subject.(4) A prohibition or requirement applies throughout the United Kingdom unless expressly limited to a particular area.(5) A CCE prevention order must—(a) specify the period for which it has effect, which must be at least two years, or(b) state that it has effect until further order.(6) Where, in a case within paragraph 1(1)(e)—(a) the adult has been remanded in custody by an order of a court, or(b) a custodial sentence has been imposed on the adult or the adult is serving or otherwise subject to a such a sentence, a CCE prevention order may provide that it does not take effect until the adult is released from custody.(7) A CCE prevention order may specify periods for which particular prohibitions or requirements have effect.(8) Where a court makes a CCE prevention order in respect of a person who is already subject to such an order, the earlier order ceases to have effect.Applications for CCE prevention orders
3 (1) The Chief Constable of the Police Service of Scotland may make an application for a CCE prevention order.(2) An application under this paragraph must be made to the sheriff in whose sheriffdom—(a) the adult lives, or(b) the Chief Constable of the Police Service of Scotland believes that adult is in or is intending to come to.Interim CCE prevention orders
4 (1) This paragraph applies where the sheriff adjourns the hearing of an application for a CCE prevention order made under paragraph 3.(2) The sheriff may, if they consider it necessary to do so, make a CCE prevention order lasting for a fixed period or until the determination of the application (an “interim CCE prevention order”).Paragraph 2(5) does not apply in relation to an interim CCE prevention order.(3) The only requirement that may be imposed by an interim CCE prevention order on the adult is a requirement to comply with paragraph 6 (notification requirements).(4) Subject to that, the sheriff has the same powers in relation to an interim CCE prevention order as in relation to an order made at a final hearing.(5) Nothing in sub-paragraph (2) prevents the variation of the duration of an interim CCE prevention order, or the discharge of such an order, under paragraph 7.CCE prevention orders in criminal proceedings: procedural powers
5 (1) This paragraph applies in the circumstances mentioned in sub-paragraph (1)(b), (c), (d) or (e) of paragraph 1.(2) The court may make a CCE prevention order—(a) at its own instance, or(b) on the motion of the Lord Advocate, Crown Counsel or procurator fiscal (or any person duly authorised to represent or act for them).(3) For the purpose of deciding whether to make a CCE prevention order, the court may consider evidence led by the prosecution and evidence led by the adult.(4) It does not matter whether the evidence would have been admissible in the proceedings giving rise to the circumstances referred to in sub-paragraph (1).(5) The court may adjourn any proceedings relating to the making of a CCE prevention order.(6) If the adult does not appear for any adjourned proceedings, the court may—(a) further adjourn the proceedings,(b) issue a warrant for the adult’s arrest, or(c) hear the proceedings in the adult’s absence.(7) The court may act under sub-paragraph (6)(b) only if satisfied that the adult has had adequate notice of the time and place of the adjourned proceedings. (8) The court may act under sub-paragraph (6)(c) only if satisfied that the adult—(a) has had adequate notice of the time and place of the adjourned proceedings, and(b) has been informed that if the adult does not appear for those proceedings, the court may hear the proceedings in the adult’s absence.(9) Nothing in this paragraph limits any other powers of the court.Notification requirements
6 (1) This paragraph applies where a CCE prevention order requires the adult to comply with this paragraph.(2) Before the end of the period of three days beginning with the day on which a CCE prevention order requiring the adult to comply with this paragraph is first served, the adult must notify to the police—(a) the adult's name and, where the adult uses one or more other names, each of those names, and(b) the adult's home address.(3) If, while the adult is required to comply with this paragraph, the adult—(a) uses a name which has not been notified under the order, or(b) changes home address,the adult must notify, to the police, the new name or the new home address.(4) A notification under sub-paragraph (3) must be given before the end of the period of three days beginning with the day on which the adult uses the name or changes home address.(5) A notification under this paragraph must be made—(a) by attending at a police station for the time being specified in the document published under sub-paragraph (6) and giving an oral notification to a constable, or to a person authorised for the purpose by the officer in charge of the station, or(b) in a way specified in the CCE prevention order.(6) The Chief Constable of the Police Service of Scotland must publish, in such manner as the Chief Constable thinks fit, a document containing the name and address of each police station at which a person may give a notification under this paragraph.(7) The Chief Constable of the Police Service of Scotland must keep under review a document published under this paragraph and may, from time to time, publish a revised version of the document in such manner as the Chief Constable thinks fit.(8) A notification under this paragraph must be acknowledged in writing.(9) In this paragraph “home address” means—(a) the address of the adult’s sole or main residence in the United Kingdom, or(b) where the adult has no such residence, the address or location of a place in the United Kingdom where the adult can regularly be found and, if there is more than one such place, such one of those places as the adult may select.(10) In determining the period of three days mentioned in sub-paragraph (2) or (4), no account is to be taken of any time when the adult is—(a) lawfully detained or otherwise lawfully deprived of their liberty, in the United Kingdom, or(b) outside the United Kingdom.Variation and discharge of CCE prevention orders made on application
7 (1) This paragraph applies where a person mentioned in sub-paragraph (2) applies to the appropriate sheriff for the variation or discharge of a CCE prevention order made in the circumstances mentioned in paragraph 1(1)(a).(2) The persons are—(a) the adult;(b) the Chief Constable of the Police Service of Scotland.(3) On the application, the appropriate sheriff may (after hearing from the applicant and, if the other person mentioned in sub-paragraph (2) wishes to be heard, that person) make any order varying or discharging the order that the appropriate sheriff considers appropriate.This is subject to sub-paragraph (7).(4) The power to vary an order includes power to—(a) include an additional prohibition or requirement;(b) extend the period for which a prohibition or requirement has effect;(c) extend the period for which the order has effect.(5) The appropriate sheriff may make provision of a kind mentioned in sub-paragraph (4) only if they consider that the provision is necessary to prevent the adult from engaging, or reduce the likelihood of the adult engaging, in child criminal exploitation.(6) Sub-paragraphs (3), (4) and (7) of paragraph 2 apply to additional prohibitions or requirements included on a variation of an order.(7) The appropriate sheriff may not discharge an order before the end of the period of two years beginning with the day on which the order was made, without the consent of the adult and the Chief Constable of the Police Service of Scotland.This sub-paragraph does not apply to an interim CCE prevention order.(8) In this paragraph “the appropriate sheriff” means—(a) the sheriff who made the order,(b) a sheriff in the sheriffdom of that sheriff, or(c) a sheriff in the sheriffdom—(i) in which the adult is resident at the time of the application,(ii) in which the chief constable believes that adult to be, or(iii) to which the chief constable believes that adult intends to come.Variation and discharge of CCE prevention orders made in criminal proceedings
8 (1) This paragraph applies where a person mentioned in sub-paragraph (2) applies to a relevant court for the variation or discharge of a CCE prevention order made in the circumstances mentioned in sub-paragraph (1)(b), (c), (d) or (e) of paragraph 1.(2) The persons are—(a) the adult;(b) the Lord Advocate, Crown Counsel or procurator fiscal (and any person duly authorised to represent or act for them).(3) On the application, the court may (after hearing from the applicant and, if the other person mentioned in sub-paragraph (2) wishes to be heard, that person) make any order varying or discharging the order that the court considers appropriate.This is subject to sub-paragraph (7).(4) The power to vary an order includes power to—(a) include an additional prohibition or requirement; (b) extend the period for which a prohibition or requirement has effect;(c) extend the period for which the order has effect.(5) The court may make provision of a kind mentioned in sub-paragraph (4) only if it considers that the provision is necessary to prevent the adult from engaging, or reduce the likelihood of the adult engaging, in child criminal exploitation.(6) Sub-paragraphs (3), (4) and (7) of paragraph 2 apply to additional prohibitions or requirements included on a variation of an order.(7) The court may not discharge an order before the end of the period of two years beginning with the day on which the order was made, without the consent of the adult and the Chief Constable of the Police Service of Scotland.This sub-paragraph does not apply to an interim CCE prevention order.(8) In this paragraph “relevant court” means—(a) where the High Court made the order, that court;(b) where the sheriff made the order, the sheriff.Appeals
9 (1) The adult or the Chief Constable of the Police Service of Scotland may appeal to the relevant court against a decision made—(a) on an application under paragraph 3 (applications for CCE prevention orders);(b) under paragraph 4 (interim CCE prevention orders);(c) on an application under paragraph 7 (variation and discharge of CCE prevention orders made on application);(d) on an application under paragraph 8 (variation and discharge of CCE prevention orders made in criminal proceedings).(2) In this paragraph“relevant court” means—(a) in the case of a decision of a sheriff court, the Sheriff Appeal Court;(b) in the case of a decision of the High Court, the High Court.(3) On an appeal under sub-paragraph (1) the relevant court may make—(a) such orders as may be necessary to give effect to its determination of the appeal, and(b) such incidental and consequential orders as appear to it to be appropriate.(4) Where a CCE prevention order is made by virtue of sub-paragraph (1)(b), (c), (d) or (e) of paragraph 1, the order is taken to be a sentence for the purposes of any appeal.(5) Where a CCE prevention order is made on appeal, for the purposes of this Schedule (other than this paragraph) the order is to be treated as made by the court from which the appeal was made.Offence of breaching CCE prevention order
10 (1) A person who, without reasonable excuse, fails to comply with an order mentioned in sub-paragraph (2) commits an offence.(2) The orders are—(a) a CCE prevention order;(b) a CCE prevention order under Chapter 1 of Part 4 (CCE prevention orders on application or acquittal etc. in England and Wales);(c) a CCE prevention order under Chapter 2A of Part 11 of the Sentencing Code (CCE prevention orders on conviction in England and Wales); (d) a CCE prevention order under Schedule (CCE prevention orders: Northern Ireland) (CCE prevention orders in Northern Ireland).(3) A person who commits an offence under this paragraph is liable—(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);(b) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine (or both).(4) The Scottish Ministers may by regulations amend sub-paragraph (2) so as to add to or remove from the list of orders any relevant UK order.(5) In proceedings for an offence under this paragraph, a copy of the original order mentioned in sub-paragraph (2), certified by the proper officer of the court that made it, is admissible as evidence of its having been made and of its contents to the same extent that oral evidence of those matters is admissible in those proceedings.(6) “Relevant UK order” means an order under the law of England and Wales or Northern Ireland which appears to the Scottish Ministers to be equivalent or similar to a CCE prevention order.Offences relating to notifications
11 (1) This paragraph applies where a CCE prevention order requires a person to comply with paragraph 6 (notification requirements).(2) The person commits an offence if—(a) without reasonable excuse, they fail to comply with that paragraph, or(b) in purported compliance with that paragraph, they notify to the police any information which they know to be false.(3) A person who commits an offence under this paragraph is liable—(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);(b) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine (or both).(4) A person commits an offence under sub-paragraph (2)(a) on the day on which they first fail, without reasonable excuse, to comply with paragraph 6.(5) The person continues to commit the offence throughout any period during which the failure continues.(6) But the person may not be prosecuted more than once in respect of the same failure.(7) Paragraph 10(5) applies for the purposes of this paragraph.Interpretation
12 In this Schedule—“adult” has the meaning given by paragraph 1;“CCE prevention order”, except in paragraph 10(2)(b) to (d), means an order under paragraph 2 (and accordingly includes an interim order made by virtue of paragraph 4);“engaging in child criminal exploitation” has the meaning given by paragraph 1 (and related expressions are to be construed accordingly);“High Court” means the High Court of Justiciary.”Member's explanatory statement
This amendment inserts a new Schedule about CCE prevention orders in Scotland.
Lord Hanson of Flint (Lab)
I do not think I have ever given an indication the noble Lord could not speak, but there was a 13-minute contribution on a 10-minute latitude.
Lord Blencathra (Con)
I apologise to the noble Lord, Lord Hanson; I was not referring to him. It was the Government Whip who was getting very agitated about my comments. I could have spoken for a lot longer if I had degrouped my amendments, but I am not going to do that.
Quite simply, Clause 56 lists all the crimes in Part 1 of Schedule 6 that are relevant to convicting someone of controlling another person’s home for criminal purposes. Schedule 6 is about two pages of big issues—very large crimes—which are completely inappropriate for a summary trial. This is about hijacking someone else’s home, where the homeowner is kept prisoner. That is such big stuff that it should not be triable by summary but only in a Crown Court.
I beg to move—after one minute and 21 seconds.
Lord Hanson of Flint
(a) section 40 (child criminal exploitation);(b) section 59 (causing internal concealment of item for criminal purpose).”Member’s explanatory statement
This amendment adds the offence of causing internal concealment of an item for a criminal purpose, created by this Bill, to the list of offences that are relevant offences in England and Wales for the purpose of the offence of control over another’s home for criminal purposes (clause 56).
Lord Hanson of Flint
“(4A) The circumstances in which A exercises control over B’s dwelling include circumstances where—(a) A arranges for another person (C) to exercise control over B’s dwelling (including by exercising control over any of the matters mentioned in subsection (4)), and(b) C does exercise that control.”Member’s explanatory statement
This amendment makes it clear that control over another’s dwelling may be via another person, for the purposes of the offence in clause 56.
Lord Hanson of Flint
“(c) CCE prevention orders under Schedule (CCE prevention orders: Northern Ireland).”Member’s explanatory statement
This amendment gives a power to the Department of Justice in Northern Ireland to issue guidance to the Chief Constable of the Police Service of Northern Ireland about the new CCE prevention orders for Northern Ireland.
Lord Hanson of Flint
Member’s explanatory statement
This is a minor drafting change.
Lord Hanson of Flint (Lab)
My Lords, I will also speak to further amendments later. I just want to say thank you to the noble Lord, Lord Blencathra, for his kind words before he goes. My reputation is ruined, but there we go. I thank him anyway.
The government amendments in this group and the clauses to which they relate are vital in safeguarding the public from some of the gravest harms emerging from the digital age. All the amendments in this group of government amendments, starting with Amendments 295A and 295B, pertain to the introduction of a defence for authorised persons to test and investigate technologies for child sexual abuse material, extreme pornography and non-consensual intimate imagery capabilities. These are abhorrent crimes and we must ensure that our laws keep pace with them.
Noble Lords will know that the rapid advancement and prevalence of AI technologies without adequate guardrails has increased the volume of AI-generated abuse imagery circulating online. These harms fall disproportionately on women and children. We must get ahead of these risks. At present, AI developers and public safety organisations seeking to test for these risks face significant legal jeopardy from testing. These legal blocks mean that testers could be liable to prosecution if they create illegal images during testing. We want to support government and public safety organisations in their commitment to research internet safety. If we are serious about AI safety, it is essential that we support continuous and rigorous testing so that testers can be confident that models are safe to use and support our ambition to drive down CSAM online.
This defence could give a technology company the ability to understand the capabilities of its models, identify weaknesses and design out harmful outputs. Amendment 295A introduces a power by regulations to create new testing defences. The Secretary of State will authorise persons to carry out technology testing subject to rigorous conditions. I confirm that any regulations that are brought forward will be subject to the affirmative parliamentary procedure and testing will be subject to rigorous oversight and strict mandatory operational safeguards. The regulation-making power will also extend to making provision for the enforcement of any breaches of conditions and may include creating criminal offences.
Amendment 295B lists the offences to which this defence applies. The Secretary of State will have the power to amend this list of offences as the law evolves. This will ensure that the defence remains fit for purpose. I hope the Committee welcomes that the Scottish Government and Northern Ireland Department of Justice want this defence to be extended to Scotland and Northern Ireland. The offences listed may be amended, as appropriate, for England and Wales as well as for Scotland and Northern Ireland. The Secretary of State will be required to consult Scottish Ministers and the Department of Justice in Northern Ireland before making any regulations that would affect the Scottish Parliament or the Northern Ireland Assembly.
Clause 63 criminalises artificial intelligence image generators, which are used by offenders to create child sexual abuse imagery. Our law is clear that AI-generated child sexual abuse material is illegal. However, these fine-tuned models that facilitate the creation of child sexual abuse material currently are not. Therefore, the Government are making it illegal to possess, make, adapt, supply or offer to supply a child sexual abuse image generator, punishable by up to five years’ imprisonment.
Government Amendments 267 and 268 ensure that we take a unified approach across the United Kingdom. This is why we are creating equivalent offences in Scotland and Northern Ireland. Clause 64 amends Section 69 of the Serious Crime Act 2015 to criminalise the possession of advice or guidance on using artificial intelligence to create child abuse imagery. Sadly, there are so-called paedophile manuals that contain guidance for offenders on how to abuse children sexually and how to create indecent photographs or pseudo-photographs—which are illegal under the existing offence in the Serious Crime Act 2015. However, this offence does not include guidance for offenders about how to use AI to create illegal images of children and is applicable only to England, Wales and Northern Ireland. Amendment 269 extends the offence, as amended by Clause 64, to Scotland, ensuring that these vile manuals can be tackled across the whole of the United Kingdom. The other amendments in this group are consequential on the main amendments that I have described.
Together, these government amendments will enhance the protection of women and children, prevent criminal use of AI technologies and improve long-term safety by design and the resilience of future AI development. I commend the amendments to the Committee. I beg to move.
Lord Hacking (Lab)
My Lords, if I could intervene for a moment, the Bill is going at a fine pace through the House, but I am a little concerned about Amendment 263. The problems of modern slavery that I have raised in the House are very severe.
Lord Hacking (Lab)
I know. I am just asking for some assistance with this—does the proposed new clause in Amendment 263 still stand?
Lord Hanson of Flint (Lab)
The Committee has considered that amendment. If the noble Lord wishes to write to me on any details, I will certainly write back to him, but, in the interests of progress, it would be better if that was dealt with outside the Chamber, given that we have debated those matters already.
Baroness Doocey (LD)
My Lords, very briefly, the government amendments set out the devolution arrangements to ensure that criminals cannot exploit differences between the four nations, and we are very happy to support them.
Lord Davies of Gower (Con)
My Lords, this is an important issue that I know there is cross-party support for, and I am largely supportive of the intentions behind the amendments in this group.
The first of the Minister’s amendments acts largely to tidy up the drafting of the Bill and ensure its thoroughness. I agree with this. Expanding the scope for technology testing regarding child sexual abuse materials is welcome.
Similarly, extending provisions to ensure that they are the same in all parts of the union is a minor but important amendment. Consistency across our internal borders is the best way to ensure that children are protected equally everywhere. It should help with cross-border co-ordination between authorities, and I therefore welcome it.
I see the logic behind government Amendments 295A and 295B. It is the right approach that, if the Government want to crack down on technology, they should first do so at the source. That means discovering which technologies are being used to create unlawful content, which requires people to test them. This would also, I hope, have the additional effect of not blanket banning content for people without nuance, instead targeting the specific pieces of software responsible. So long as the individuals able to use this as a defence remain strictly authorised by the Secretary of State, I appreciate the amendment’s aim.
This should go hand in hand with an initiative similar to the one suggested by my noble friend Lord Nash. If the Government can identify the technology used, they should attempt to shut it down. Unfortunately, this is often outside the Government’s jurisdiction and therefore some form of software to prevent the distribution of child sexual abuse material might be the next best approach. I hope that the Minister can confirm that they are perhaps looking at this.
As I said, this is a non-partisan issue. We all want to reduce child sexual abuse, online or offline, and these amendments should work to help the Bill achieve the former. I hope that the Minister can, in due course—perhaps at a later stage—fully outline how this new technology will be implemented and applied consistently, and will consider my noble friend Lord Nash’s amendment, but I broadly support the approach.
Lord Hanson of Flint (Lab)
My Lords, I am grateful for the support from the noble Baroness, Lady Doocey, and the noble Lord, Lord Davies of Gower. If the noble Lord will allow me, I will reflect on what he said and give him a fuller briefing on the detail of how we are approaching the AI issue. Obviously, we will come on to further amendments in the next group, which I will respond to once they have been moved.
Lord Davies of Gower (Con)
My Lords, I am grateful to all noble Lords who have contributed to this extremely important debate, particularly the noble Baroness, Lady Kidron, and my noble friend Lord Nash for their continued efforts on the protection of children online.
This group should unite the whole Committee. We can be in no doubt about the need to safeguard children in an environment where technology is evolving at unprecedented speed and where the risk of harm, including the creation and dissemination of child sexual abuse material, is escalating. It is a sad truth that, historically, Governments have been unable to keep pace with evolving technology. As a consequence, this can mean legislation coming far too late.
Amendment 266, tabled by the noble Baroness, Lady Kidron, would require providers of online services, including generative AI systems, to conduct risk assessments on the potential use of their platforms to create child sexual abuse images. The Committee has heard compelling arguments about the need for meaningful responsibilities to be placed on platforms and developers, particularly where systems are capable of misuse at scale. We recognise the seriousness of the challenge that she has outlined, and I very much look forward to what the Government have to say in response.
On my noble friend Lord Nash’s amendment, we are particularly sympathetic to the concerns that underpin his proposal. His amendment would mandate the installation of tamper-proof software on relevant devices to prevent the creation, viewing and sharing of child sexual abuse material. My noble friend has made a powerful case that prevention at source must form part of the comprehensive strategy to protect children. While there are practical questions that will require careful examination, his amendment adds real value to the discussion. I am grateful for his determined focus on this issue, and I hope the Government also take this amendment very seriously.
Similarly, Amendments 479 and 480, also tabled by the noble Baroness, Lady Kidron, speak to the responsibilities of AI search tools and AI chatbots. The risk of such technologies being co-opted for abusive purposes is not theoretical; these threats are emerging rapidly and require a response proportionate to the harm.
From these Benches, we are sympathetic to the objectives across this group of amendments and look forward to the Government’s detailed response and continuing cross-party work to ensure the strongest protections for children in an online world. As has been said several times throughout Committee, protecting children must remain our highest priority. I hope the Government take these amendments very seriously.
Lord Hanson of Flint (Lab)
I am grateful to the noble Baroness, Lady Kidron, for the way she introduced this group of amendments and for her tireless work to protect children online. I say on behalf of all noble Lords that the support she has received today across the Committee shows that her work is vital, especially in the face of emerging technologies, such as generative AI, which present opportunities but, sadly, also have a darker side with new risks for criminal misuse.
She has received the support of the noble Baronesses, Lady Morgan of Cotes, Lady Boycott, Lady Bertin and Lady Doocey, my noble friends Lady Berger, Lady Royall of Blaisdon and Lord Hacking, the noble Lords, Lord Bethell, Lord Russell of Liverpool, Lord Hampton and Lord Davies of Gower, the noble Viscount, Lord Colville of Culross, and others to whom I will refer later. That is quite an array of colleagues in this House. It is my job to respond to this on behalf of the Government, and I will try to be as helpful as I can to the noble Baroness.
The Government share her desire to protect the public, especially children, online, and are committed to protecting all users from illegal online content. We will continue to act to keep citizens safe. Amendment 266 seeks to create a new duty on online service providers—including those already regulated under the Online Safety Act—to assess and report to Ofcom or the National Crime Agency on the risk that their services could be used to create or facilitate the generation of AI child sexual abuse material. The amendment would also require online service providers to implement measures to mitigate and manage the risks identified.
I say to the noble Baroness that UK law is already clear: creating, possessing or distributing child sexual abuse images, including those generated by AI, is already illegal, regardless of whether they depict a real child or not. Child sexual abuse material offences are priority offences under the Online Safety Act. The Act requires in-scope services to take proactive steps to prevent such material from appearing on their services and to remove it swiftly if it does.
As she will know, the Government have gone even further to tackle these appalling crimes through the measures in the Bill. I very much welcome her support for Clause 63. We are introducing a world-leading offence criminalising the possession, adaptation and supply of, or offer to supply, an AI model that has been fine-tuned by offenders to create child sexual abuse material. As I mentioned earlier, we are also extending the existing paedophile manual offence to cover advice on how to abuse AI to create child sexual abuse material.
We have also introduced measures that reflect the critical role that AI developers play in ensuring their systems are not misused. To support the crucial work of the Government’s AI Security Institute, we have just debated and agreed a series of amendments in the previous group to provide authorised bodies with the powers to legally test commercial AI models for extreme pornography and other child sexual abuse material. That is essential to allow experts to safely test measures, and I am pleased that we received the Committee’s support earlier.
Lord Russell of Liverpool (CB)
If it is beyond the remit of the National Crime Agency and Ofcom to do anything about this, perhaps the Minister will tell us who is going to take responsibility and actually enforce what the noble Baroness is trying to persuade the Government to do in the amendment.
Lord Hanson of Flint (Lab)
All chatbots are regulated under the Online Safety Act. If there is harmful or illegal content or advice in relation to children, it is up to Ofcom to take action on those matters. Many of these issues are for DSIT Ministers and Ofcom. I am a Home Office Minister. The noble Baroness has requested a meeting and I will put that to my DSIT ministerial colleagues. I hope they will be able to meet her to reflect upon these issues. Although I am answering for the Bill today, some of these issues are DSIT matters, and it is important that she has an opportunity to raise them with DSIT.
Baroness Kennedy of The Shaws (Lab)
My Lords, I was stimulated to rise by something that the noble Baroness, Lady Doocey, said. She was speaking to the reply that had been given by the Minister, and it made me think that what has to be looked at here is the law and its inadequacies in dealing with those who are not human—that is the nature of a robot. The law is constructed around the mental element of mens rea to convict people of a crime. Surely it should be possible for us, in the limited area of dealing with robots, to be able to say that that mental element need not be present in dealing with this kind of offending and that one should be able to construct something that leads back to those who are creatively responsible for bringing them into being.
It reminds me of the argument that is made in the United States about not bothering to restrict guns because it is not guns that kill people but the people using the guns who are responsible. In fact, those who manufacture them might be looked at for the responsibility that they bear for some of this. We should be looking much more creatively at the law. There should be an opportunity for lawyers to look at whether, in this instance with this development—which is so out of the ordinary experience of humankind—we should think about legally changing the rule on mens rea when it comes to robots.
Lord Hanson of Flint (Lab)
There are a number of issues before the Committee today and the Government will reflect on all the points that have been mentioned. However, the view at the moment is that these amendments would risk creating significant legal uncertainty by duplicating and potentially undermining aspects of the Online Safety Act.
Lord Bethell (Con)
My Lords, I am enormously grateful to the Minister for reassuring us that all chatbots are captured by the Online Safety Act; that is very good news indeed. Can he reassure us that Ofcom will confirm that in writing to the House? I appreciate that he is a Home Office Minister, but he speaks on behalf of all of government. I think it is fair, given the nature of the Bill, that he seeks an answer from Ofcom in this matter.
Lord Hanson of Flint (Lab)
My assessment is that the vast majority of chatbots are captured—
Lord Hanson of Flint (Lab)
Many AI chatbots that enable users to share content with each other or search live websites for information are within the scope of the Online Safety Act’s duties. Providers of those services—
Viscount Colville of Culross (CB)
I want to repeat what I said in my speech. There are some chatbots, such as Replika, that do not have user-to-user functionality. They are created for just one user, and that user cannot pass it on to any other users. There is concern that the law does not cover that and that Ofcom does not regulate it.
Lord Hanson of Flint (Lab)
If I may, I will take away those comments. I am responsible for many things in this House, including the Bill, but some of those areas fall within other ministerial departments. I am listening to what noble Lords and noble Baronesses are saying today.
Currently, through Online Safety Act duties, providers of those services are required to undertake appropriate risk assessments and, under the Act’s illegal content duties, platforms must implement robust and timely measures to prevent illegal content appearing on their services. All in-scope providers are expected to have effective systems and processes in place to ensure that the risks of their platform being used for the types of offending mentioned today are appropriately reduced.
Ofcom currently has a role that is focused on civil enforcement of duties on providers to assess and mitigate the risks posed by illegal content. Where Ofcom may bring prosecutions in some circumstances, it will do so only in relation to regulatory matters where civil enforcement is insufficient. The proposed approach is not in line with the enforcement regime under the Act at the moment, which is the responsibility of Ofcom and DSIT.
Baroness Berger (Lab)
My noble friend is making really important comments in this regard, but on the specific issue of Ofcom, perhaps fuelling much of the concern across the Committee are the comments we have heard from Ofcom. I refer to a briefing from the Molly Rose Foundation, which I am sure other noble Lords have received, which says that uncertainty has been “actively fuelled” by the regulator Ofcom, which has told the Molly Rose Foundation that it intends to maintain “tactical ambiguity” about how the Act applies. That is the very issue that unites us in our concern.
Lord Hanson of Flint (Lab)
I am grateful to my noble friend for that and for her contribution to the debate and the experiences she has brought. The monitoring and evaluation of the online safety regime is a responsibility of DSIT and Ofcom, and they have developed a framework to monitor the implementation of the Act and evaluate core outcomes. This monitoring and evaluation is currently tracking the effect of the online safety regime and feeding into a post-implementation review of the 2023 Act. Where there is evidence of a need to go further to keep children safe online, including from AI-enabled harms, the Government will not hesitate to act.
If the noble Baroness, Lady Kidron, will allow DSIT and Ofcom to look at those matters, I will make sure that DSIT Ministers are apprised of the discussion that we have had today. It is in this Bill, which is a Home Office Bill, but it is important that DSIT Ministers reflect on what has been said. I will ensure that we try to arrange that meeting for the noble Baroness in due course.
I want also to talk about Amendments 271A and 497ZA from the noble Lord, Lord Nash, which propose that smartphone and tablet manufacturers, importers and distributors are required to ensure that any device they have is preinstalled with technology that prevents the recording and viewing of child sexual abuse material or similar material accordingly. I acknowledge the noble Lord’s very valid intention concerning child safety and protection, and to prevent the spread of child sexual abuse material online. To that end, there is a shared agreement with the Government on the need to strengthen our already world-leading online safety regime wherever necessary.
I put to the noble Lord, and to the noble Lord, Lord Bethell, on his comments in support, that if nudity detection technology could be effectively deployed at scale, there could be a significant limiting impact on the production and sharing of child sexual abuse material. I accept that, but we must get this right. Application of detection technology that detects and blocks all nudity, adult and child, but which is primarily targeted at children, would be an effective intervention. I and colleagues across government want to gather evidence about the application of such technology and its effectiveness and impact. However, our assessment is that further work is needed to understand the accuracy of such tools and how they may be implemented.
We must also consider the risks that could arise from accepting this amendment, including legitimate questions about user privacy and data security. If it helps the noble Lord, Lord Nash, we will continue to assess the effect of detection tools on the performance of mobile device so that we can see how easy it is to circumvent them, how effective they are and a range of other matters accordingly. The Government’s focus is on protective measures within the Online Safety Act, but we are actively considering the potential benefits of the technology that the noble Lord has mentioned and others like it in parallel. There will be further future government interventions but they must be proportionate and driven by evidence. At the moment, we do not have sufficient evidence to ensure that we could accept the amendment from the noble Lord, but the direction of travel is one that we would support.
Lord Nash (Con)
Will the Minister meet me and representatives from software companies to explain why they say this technology works?
Lord Hanson of Flint (Lab)
I am very happy to arrange a meeting with an appropriate Minister. I would be very happy to sit in on it. Other Ministers may wish to take the lead on this, because there are technology issues as well. I have Home Office responsibilities across the board, but I have never refused a meeting with a Member of this House in my 16 months here and I am not going to start now, so the answer to that question is yes. The basic presumption at the moment is that we are not convinced that the technology is yet at the stage that the noble Lord believes it to be, but that is a matter for future operation. I again give him the assurance that, in the event that the technology proves to be successful, the Government will wish to examine it in some detail.
I have absolutely no doubt that we will revisit these matters but, for the moment, I hope that the noble Baroness can withdraw her amendment.
Baroness Kidron (CB)
I pay tribute to the noble Lord, Lord Nash, for his amendment and his fierce following of this issue, and for bringing it to our attention. I recognise that this is a Home Office Bill and that some of these things cross to DSIT, but we are also witnessing crime. The Home Office must understand that not everything can be pushed to DSIT.
Your Lordships have just met the tech Lords. These are incredibly informed people from all over the Chamber who share a view that we want a technological world that puts kids front and centre. We are united in that and, as the Minister has suggested, we will be back.
I have three very quick points. First, legal challenges, operational difficulties and the capacity of the NCA and Ofcom were the exact same reasons why Clause 63 was not in the Online Safety Bill or the Data (Use and Access) Bill. It is unacceptable for officials to always answer with those general things. Many noble Lords said, “It’s so difficult”, and, “This is new”, with the Online Safety Bill. It is not new: we raised these issues before. If we had acted three or four years ago, we would not be in this situation. I urge this Government to get on the front foot, because we know what is coming.
Lord Hanson of Flint
“Child sexual abuse image-generators: Northern Ireland(1) In the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)), after Article 42 insert—“Creation of CSA material
42A Child sexual abuse image-generators(1) It is an offence for a person to make, adapt, possess, supply or offer to supply a CSA image-generator.(2) It is a defence for a person charged with an offence under this Article of possessing a CSA image-generator to prove that the person—(a) was sent the CSA image-generator without any request having been made for it (by or on behalf of the person), and(b) did not keep it for an unreasonable time.(3) It is a defence for a person charged with an offence under this Article of possessing, supplying or offering to supply a CSA image-generator to prove that the person did not know, and did not have cause to suspect, that the thing possessed, supplied or offered to be supplied was a CSA image-generator.(4) For further defences, see Article 42B.(5) A person who commits an offence under this Article is liable—(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both);(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).(6) In this Article—(a) “CSA image-generator” means anything (including any program and any information in electronic form) which is made or adapted for use for creating, or facilitating the creation of, CSA images;(b) “CSA image” means—(i) an indecent photograph or pseudo-photograph of a child, within the meaning of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17));(ii) a prohibited image of a child, within the meaning of section 62 of the Coroners and Justice Act 2009, that is not an excluded image within the meaning of section 63 of that Act;(c) a reference to making a CSA image-generator includes adapting anything that is not a CSA image-generator in such a way that it becomes a CSA image-generator. 42B Article 42A: supplementary(1) It is a defence for a person charged with an offence under Article 42A—(a) to prove that the person made, adapted, possessed, supplied or offered to supply the CSA image-generator for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world,(b) to prove that the person was a member of the Security Service, the Secret Intelligence Service or GCHQ (a “security body”) and made, adapted, possessed, supplied or offered to supply the CSA image-generator for the purposes of the exercise of any function of the security body, or(c) to prove that the person—(i) was a member of OFCOM, was employed or engaged by OFCOM, or assisted OFCOM in the exercise of any of its online safety functions, and(ii) made, adapted, possessed, supplied or offered to supply the CSA image-generator for the purposes of OFCOM’s exercise of any of its online safety functions.(2) An internet service provider does not commit an offence under Article 42A by—(a) providing access to a communication network, or(b) transmitting, in a communication network, information provided by a user, if the provider does not—(i) initiate the transmission,(ii) select the recipient of the transmission, or(iii) select or modify the information contained in the transmission.(3) The references in paragraph (2) to providing access to, or transmitting information in, a communication network include storing the information transmitted so far as the storage—(a) is automatic, intermediate and transient,(b) is solely for the purpose of carrying out the transmission in the network, and(c) is for no longer than is reasonably necessary for the transmission.(4) An internet service provider does not commit an offence under Article 42A by storing information provided by a user for transmission in a communication network if—(a) the storage of the information—(i) is automatic, intermediate and temporary, and(ii) is solely for the purpose of making more efficient the onward transmission of the information to other users at their request, and(b) the internet service provider—(i) does not modify the information,(ii) complies with any conditions attached to having access to the information, and(iii) on obtaining actual knowledge of a matter within paragraph (5), promptly removes the information or disables access to it.(5) The matters within this paragraph are that—(a) the information at the initial source of the transmission has been removed from the network,(b) access to it has been disabled, or(c) a court or administrative authority has ordered the removal from the network of, or the disablement of access to, the information.(6) An internet service provider does not commit an offence under Article 42A by storing information provided by a user who is not acting under the authority or control of the provider if— (a) the provider had no actual knowledge when the information was provided that it was, or contained, a CSA image-generator, and(b) on obtaining actual knowledge that the information was, or contained, a CSA image-generator, the provider promptly removed the information or disabled access to it.(7) Article 76(1) applies in relation to an act which, if done in Northern Ireland, would constitute an offence under Article 42A as if references to a United Kingdom national included—(a) a body incorporated under the law of any part of the United Kingdom, or(b) an unincorporated association formed under the law of any part of the United Kingdom.(8) Article 42A(6) applies for the purposes of this Article.(9) In this Article—(a) “GCHQ” has the meaning given by section 3 of the Intelligence Services Act 1994;(b) “OFCOM” means the Office of Communications;(c) a reference to OFCOM’s “online safety functions” has the meaning given by section 235 of the Online Safety Act 2023;(d) “internet service provider” means a provider of—(i) a service that is made available by means of the internet, or(ii) a service that provides access to the internet;(e) “user” , in relation to an internet service provider, means a user of a service provided by the internet service provider.42C Liability for an offence under Article 42A committed by a body(1) This Article applies where an offence under Article 42A is committed by a body.(2) If the offence is committed with the consent or connivance of—(a) a relevant person in relation to the body, or(b) a person purporting to act in the capacity of a relevant person in relation to the body,the person (as well as the body) commits the offence and is liable to be proceeded against and punished accordingly.(3) In this Article—“body” means a body corporate, a partnership or an unincorporated association other than a partnership;“relevant person” , in relation to a body, means—(a) in the case of a body corporate other than one whose affairs are managed by its members, a director, manager, secretary or other similar officer of the body;(b) in the case of a limited liability partnership or other body corporate whose affairs are managed by its members, a member who exercises functions of management with respect to it;(c) in the case of a limited partnership, a general partner (within the meaning given by section 3 of the Limited Partnerships Act 1907);(d) in the case of any other partnership, a partner;(e) in the case of an unincorporated association other than a partnership, a person who exercises functions of management with respect to it.”.(2) In Schedule 3 to the Sexual Offences Act 2003 (offences for purposes of Part 2 of that Act) after paragraph 92O insert— “92OA An offence under Article 42A of that Order (child sexual abuse image-generators) if the offender is sentenced in respect of the offence to imprisonment for a term of at least 6 months.”.”Member’s explanatory statement
This new Clause makes provision for Northern Ireland equivalent to that made by clause 63 for England and Wales.
Lord Hanson of Flint
“Possession of advice or guidance about child sexual abuse or CSA images: Scotland(1) In Part 4 of the Sexual Offences (Scotland) Act 2009 after section 41 insert—“41A Possession of advice or guidance about abusing children sexually or creating CSA images(1) It is an offence to be in possession of any item that contains advice or guidance about abusing children sexually or creating CSA images.(2) “Abusing children sexually or creating CSA images” means doing anything that constitutes—(a) an offence under section 52 or 52D of the Civic Government (Scotland) Act 1982;(b) an offence under section 1, 2 or 7 of the Criminal Law Consolidation (Scotland) Act 1995 against a person under the age of 18;(c) an offence under section 10 of that Act;(d) an offence under section 1, or any of sections 9 to 12, of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005;(e) an offence under Part 1 or section 46 of the Sexual Offences (Scotland) Act 2009 against a person under the age of 18;(f) an offence under Part 4 or section 42 of that Act;(g) an offence under section 1 of the Human Trafficking and Exploitation (Scotland) Act 2015 against a person under the age of 18 that is committed with a view to exploitation that consists of or includes behaviour within section 3(3), (4) or (5) of that Act (prostitution and sexual exploitation), or doing anything outside Scotland that would constitute such an offence if done in Scotland.(3) It is a defence for a person (D) charged with an offence under this section—(a) to prove that D had a legitimate reason for being in possession of the item;(b) to prove that—(i) D had not read, viewed or (as appropriate) listened to the item, and(ii) D did not know, and had no reason to suspect, that it contained advice or guidance about abusing children sexually or creating CSA images; or(c) to prove that—(i) the item was sent to D without any request made by D or on D’s behalf, and(ii) D did not keep it for an unreasonable time.(4) A person guilty of an offence under this section is liable—(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both;(b) on conviction on indictment, to imprisonment for a term not exceeding 3 years or to a fine, or to both.(5) In this section “item” includes anything in which information of any description is recorded.41B Section 41A: supplementary provision(1) A service provider does not commit an offence under section 41A by—(a) providing access to a communication network, or(b) transmitting, in a communication network, information provided by a user, if the provider does not—(i) initiate the transmission,(ii) select the recipient of the transmission, or(iii) select or modify the information contained in the transmission.(2) The references in subsection (1) to providing access to, or transmitting information in, a communication network include storing the information transmitted so far as the storage—(a) is automatic, intermediate and transient,(b) is solely for the purpose of carrying out the transmission in the network, and(c) is for no longer than is reasonably necessary for the transmission.(3) A service provider does not commit an offence under section 41A by storing information provided by a user for transmission in a communication network if—(a) the storage of the information—(i) is automatic, intermediate and temporary, and(ii) is solely for the purpose of making more efficient the onward transmission of the information to other users at their request, and(b) the service provider—(i) does not modify the information,(ii) complies with any conditions attached to having access to the information, and(iii) on obtaining actual knowledge of a matter within subsection (4), promptly removes the information or disables access to it.(4) The matters within this subsection are that—(a) the information at the initial source of the transmission has been removed from the network,(b) access to it has been disabled, or (c) a court or administrative authority has ordered the removal from the network of, or the disablement of access to, the information.(5) A service provider does not commit an offence under section 41A by storing information provided by a user who is not acting under the authority or control of the provider if—(a) the provider had no actual knowledge when the information was provided that it was, or contained, advice or guidance about abusing children sexually or creating CSA images, and(b) on obtaining actual knowledge that the information was, or contained, advice or guidance about abusing children sexually or creating CSA images, the provider promptly removed the information or disabled access to it.(6) In this section—(a) “service provider” means a person providing an information society service;(b) “information society service” means a service normally provided—(i) for remuneration,(ii) at a distance,(iii) by electronic means, and(iv) at the individual request of a user of the services;(c) “user” , in relation to a service provider, means a user of a service provided by the service provider.(7) In subsection (6)(b)—(a) “at a distance” means that the service is provided without the parties being simultaneously present;(b) “by electronic means” means that the service is—(i) sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and(ii) entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;(c) “at the individual request of a user of the services” means that the service is provided through the transmission of data on individual request.”.(2) In Schedule 3 to the Sexual Offences Act 2003 (sexual offences for purposes of Part 2 of that Act) after paragraph 59ZJ insert—“59ZJA An offence under section 41A of that Act (possession of paedophile manual) if the offender—(a) was 18 or over, and(b) is sentenced in respect of the offence to imprisonment for a term of at least 12 months.”.”Member’s explanatory statement
This amendment makes provision for Scotland equivalent to that made for England and Wales and Northern Ireland by section 69 of the Serious Crime Act 2015, as amended by clause 64.
Lord Hanson of Flint
Member’s explanatory statement
This amendment is consequential on my new clause (Child sexual abuse image-generators: Scotland) inserted after clause 63.
Lord Sandhurst (Con)
My Lords, as was clear from our debate, this is a very important group of amendments, which seek to clarify and improve a necessary measure in the Bill. When we discussed the fourth group today, we heard about the horrific crimes committed against some children in this country: the industrial-scale abuse of young, white, working-class girls over the past four decades, as well as abuse of other groups. This happened —and is still happening—because the people who commit these crimes are among the most depraved in our society. However, it has also happened because people familiar with the abuse, or even those who had mere suspicions, turned a blind eye or simply did not look at what was in front of them.
The victims were failed by everyone, from the police to the authorities, their teachers and community leaders. Too often, they were treated with a blind negligence that bordered on positively enabling the crimes that were occurring. We have heard many powerful speeches today; I cannot list them all, but I remind the Minister of the introduction by the noble Lord, Lord Meston, on behalf of the noble Baroness, Lady Grey-Thompson, and the powerful speech from the noble Baroness, Lady Featherstone.
I think we all now agree that safeguarding needs to be supported by sanctions. How else can we put a stop to bureaucratic failure to report? The difficult and important question is around striking the balance when doing that, to make certain that it is effective but that it does not have unintended, unhappy consequences. It is important also to make non-reporting a criminal offence, but, again, exactly how that is phrased will need considerable care. Many ideas have been canvassed today, and it would be dangerous for me to try to draft on the hoof at the Dispatch Box.
There was force in the speech of the noble Baroness, Lady Miller, as to why there should be an exception for what is learned in confession, and that was also important. I am not urging that there should be an exception, but it should be looked at. We have had arguments on both sides. What is the evidence? What are likely to be the benefits of opening that up? Personally, I think it should be opened up, but it should be looked at with care.
We heard earlier today from the noble Baroness, Lady Cash, all about the grooming gangs, so I will not go back to that, but they are an incredibly striking example of why we need a duty to report suspected child sex offences in general and why it is important that the clause is properly drafted.
One important oversight, which was spotted by noble Baronesses, Lady Cash and Lady Grey-Thompson, concerns the reference to Wales. As has been established, it is necessary to correct an oversight in the drafting. As things stand, local authorities and police forces in Wales will have to be informed of crimes, but only if they are considered crimes in England. That must be redrafted, and I hope the Minister will agree to that come Report stage.
Amendment 283A in the name of the noble Baroness, Lady Cash—which was not moved, but it is sensible to make the point—would implement another recommendation of the Casey review, adding child criminal exploitation to the crimes for which there is a duty to report. It is important to look at all these points when drafting the obligations.
We on this side are largely supportive of the principles behind the several amendments in the name of the noble Baroness, Lady Grey-Thompson. Leaving out subsections (5) and (6) raises an interesting point. It is obviously better to be safe than sorry. We will have to look very carefully at what removing those subsections would actually do.
We on this side worry about removing defences in cases where an individual genuinely fears for the safety of the victim or believes that someone else has definitely submitted a report. That must be looked at, too. Perhaps the Minister can guide us on how to ensure that genuine defences with merit will remain available without providing a route to or excuse for shirking responsibility.
The noble Lord, Lord Murphy of Torfaen, raised an interesting point about the bureaucratic burden on faith schools. Government obviously must look at that. It should not be a let-out; equally, we on this side would not support any extra unnecessary burden being imposed. However, it must be done properly.
My noble friend Lord Polak’s Amendment 286A raises important considerations. It is worth noting that he is supported by Barnardo’s, the NSPCC and other organisations with great specialist expertise and knowledge—and not just anecdotal knowledge; they really know what is going on. He is looking to prevent the intentional concealment of child sex offences. That must be the absolute minimum. My noble friend Lord Bethell was supportive of that amendment, and he was right to caution us about going too far, so that it has the unintended consequence of not achieving what we all want to achieve. His words of caution should be heeded.
As to Amendment 274 in the name of the noble Lord, Lord Meston, we are rather hesitant in our support. Ensuring that a report goes straight to the local authority, which then has a duty to inform the police, might risk slowing down a response that is often needed quickly. Indeed, it might never reach the police. If a child is in imminent danger of being abused, it is not the local authority which should know first; it must be the police, who have to respond. There should be a simultaneous notification, because it can be, in effect, simultaneous.
With this amendment, it seems that someone who reported child abuse to the police would be criminalised for not going to the local authority. That cannot be right. Leaving it to the discretion of the individual which authority to report to, while requiring that there be a duty to do so, seems to us to be the right thing. People will know generally where to go but they must go to one or the other, and not automatically to the local authority first.
I think I have addressed the amendments from the noble Baronesses, Lady Featherstone and Lady Walmsley. These are all interesting points. The Government and those behind the Minister must look at this very carefully. It is really important to get the drafting right.
Amendments 283 and 286A seek to create and expand the specific crime of preventing or concealing reports of abuse. These are largely in line with the amendments addressed in the group in which we debated grooming gangs, so we support the intentions behind them.
As I have said, this is a group of amendments that have been tabled with the best of intentions. The issue in question should be entirely non-partisan; it is simply a question of how best to manage it and get it right, making certain that children and young people in this country are not allowed to suffer in the way in which they have for the last 30 years. I hope that the Minister will take away the points which are being made and, not least, add Wales to the list of jurisdictions. That is all I need to say at this stage tonight.
Lord Hanson of Flint (Lab)
I am grateful to the noble Lord, Lord Meston, for moving the amendment on behalf of the noble Baroness, Lady Grey-Thompson, and to colleagues who have spoken this evening. This has been a valuable debate on Chapter 2, Part 5. As noble Lords will know, introducing a statutory duty delivers the intention of the Independent Inquiry into Child Sexual Abuse. I am confident that the measures we have brought forward strike the balance that we need.
A number of amendments have been tabled, and I am sorry that Amendment 271F, in the name of the noble Baroness, Lady Cash, was not moved. However, it is important to put on record that the reason the duty relates to the Welsh Government is that they have declined to legislate for a mandatory reporting duty in their own response to the independent inquiry. Therefore, we are respecting the devolution settlement by not including that legislation in the Bill. It is a devolved matter which requires the consent of the Senedd.
There are a number of other amendments which I will try to speak to. We know that child sexual abuse continues to go unreported. The reasons for this are complex, including fear, stigma and lack of awareness. The right reverend Prelate the Bishop of Manchester covered some of those points in relation to the performance of the Church of England.
The unique nature of child sexual abuse as a type of harm requires the introduction of this new duty. I want to be clear that the introduction of the new duty establishes a floor, not a ceiling, and does not change or interfere with in any way the existing expectations set by government that all children at risk of harm should be referred to the appropriate authority for guidance and advice.
I want to first touch on Amendments 274 and 276, in the name of the noble Baroness, Lady Grey-Thompson, which seek to require that reports under the duty are made to local authorities only, removing, with minor exceptions, the option to notify the police. Allowing reports to be made to either the local authority or the police, as recommended by the independent inquiry, ensures that reporters can act swiftly, so I cannot accept that amendment.
The right reverend Prelate the Bishop of Manchester and others, including the noble Baronesses, Lady Walmsley, Lady Grey-Thompson and Lady Featherstone, and the noble Lord, Lord Clement-Jones, sought to introduce a criminal offence for those who conceal or fail to report abuse. The Government do not consider this type of sanction, which risks creating fear and apprehension among those with reporting responsibilities, to be proportionate or effectively targeted. That is why we are empowering reporters by focusing the criminal sanctions in this Bill on anyone who seeks to interfere with them carrying out their duty, rather than on the reporters themselves. This issue has been carefully considered by a number of agencies and has the support of, among others, the NSPCC, the Lucy Faithfull Foundation, Barnardo’s, the Centre of Expertise on Child Sexual Abuse and the Children’s Commissioner, so I cannot support the amendments.
The noble Baroness, Lady Miller of Chilthorne Domer, the noble Baroness, Lady Grey-Thompson—via the noble Lord, Lord Meston—the noble Lord, Lord Clement-Jones, and my noble friend Lord Murphy of Torfaen seek to extend the duty to a number of additional contexts. The purpose of the duty is to report and place a clear requirement on those most likely to encounter information relating to sexual abuse. I say to the noble Baroness, Lady Miller, and the right reverend Prelate that this does include members of the clergy. Proposals to extend the ambit of a reporting duty to those who do not personally come into contact with children would introduce another layer of procedural complexity.