Digital Economy Bill

Baroness Butler-Sloss Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 20th March 2017 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I was wondering which of us would go first, so I apologise to the House for being a little slow.

I strongly support the work that the Government aim to do on age verification. It is admirable work and, as a former family judge, it is exactly what I would have hoped that this Government would do. I have therefore had no general involvement in the Bill until this moment—but I am concerned that their admirable work is likely to have the unintended consequences that the Minister says he does not intend to have.

The government amendments deleting “prohibited material” and putting in its place “extreme pornographic material” are giving a message which is of great concern to me. The Prime Minister has gone public, hugely to her credit, in saying that she wishes to eradicate domestic violence. But the impact on the public of a lack of online protection in relation to prohibited materials, by changing the reference to extreme pornography, will inevitably leave a gap. Although the Government say that it will not, it seems obvious that it will leave a gap—which means that serious violent porn will not, if this legislation goes through, be covered in the way that extreme, violent pornographic material will be.

This is an opportunity for those disposed to violence, particularly in the home against spouses and partners, to see it online before they try it out in their own home. Perhaps I may give your Lordships one rather telling example of how this impacts not only on women. Many women out there, some of whom have already been polled, will be absolutely astonished and some, I believe, are outraged by the idea that this degree of violent porn online will not now be part of what is restricted. But I had a case on one occasion of two children, aged about 10 and 11, who kept the television on as loud as they could so that they could not hear their father beating their mother. Day after day they sheltered in the kitchen, away from what was happening in the front room.

The message is what worries me. Perhaps the message is even more important than the wording because the extreme, violent pornography may be identified as something which would not include a great deal of serious, violent porn—whatever the Government might say. This is the matter that has brought me to table an amendment and to speak to your Lordships today. There is some flawed Crown Prosecution Service guidance, but I do not propose to say anything about it as I hope that other noble Lords will do so.

We are facing a vast number of amendments from the Government on the second day of Report, without any prior consultation or any opportunity in Committee for noble Lords to ask rather more about the likely consequences, intended or unintended, of these amendments. So I have tabled Amendment 25YD—I thank noble Lords for telling me which one it is; there are such a lot of Ys—saying that there should be two aspects: first, that the use of the words “extreme pornographic material” in the place of “prohibited materials” should not last for more than three years; and, secondly, that in two years, by regulation, the Government should be looking at, reviewing and reporting on whether this has had any adverse effect. I have to say that I would be very surprised if it had not.

I am grateful to the Secretary of State for a very helpful letter in which he says that the Government are looking at a Green Paper followed by a White Paper. I am also grateful to three Ministers for coming to a meeting. I asked, although it is likely that I already knew the answer, whether, after the White Paper, there would be legislation. However, we have Brexit. I was hearing only this morning how many Bills in addition to the great repeal Bill will need to be brought through this House as well as the other place in the 18 months to two years before we come to the end of Article 50 and leave the EU. The likelihood of getting legislation in the next two years to deal with the sort of violent porn that I am talking about is really remote. I am concerned about the damage that it may do to women and also, inevitably, to children, if the man and the woman have children. However young they are, the children will suffer as well as the women—and, sometimes, the men.

That is the general background to this somewhat elaborate amendment. I hope it may find favour with the House.

[Baroness Benjamin (LD)]

My Lords, I am very pleased to hear the Minister say that the remit of the IWF is to be extended and that soon it will be able to remove these images wherever in the world we see child abuse images stored. At present the IWF can take down only UK-stored images. Every day that passes sees the increasing abuse of innocent children because of these images. When can we expect to see the IWF given all the necessary powers to take down any child abuse images that are ever seen on the internet, in line with the offline as well as the online policy that the BBFC has? On this International Day of Happiness, I thank the Government for ensuring that children will be safeguarded and will not be able to see abusive pornographic material anywhere, and that as soon as possible the IWF will be given all the powers it needs to make sure that we do not harm children anywhere in the world.

--- Later in debate ---

[Lord Paddick]

I will try to say it again more clearly. It is the fact that the Crown Prosecution Service is not prosecuting people for possessing prohibited material. That brings the definition of prohibited material into disrepute, as far as the law is concerned. I am not quite sure what it is that the noble Lord does not understand about it being brought into disrepute in that respect.

[Baroness Butler-Sloss]

Why cannot the CPS just change its guidance?

[Lord Paddick]

Indeed. What the Minister said backed up what the noble Lord, Lord Browne of Belmont, said about the criticism of there being no public consultation. There has been no public consultation about introducing adult pornography into the Bill, in the form of prohibited material. There needs to be a public debate on this to decide whether the British Board of Film Classification’s operation, where it does not issue certificates for prohibited material, is the right standard or whether the CPS standard is right. There has not been a public debate about that, and we need one.

Having said all that, I entirely agree with the noble and learned Baroness, Lady Butler-Sloss, about the impact that gratuitous violent pornography can have in terms of domestic violence and the impact that it then has on children in those families. That needs to be debated and addressed. However, that is not what the Bill was primarily intended to do. Contrary to what the noble Lord, Lord Farmer, suggests, this is not some deal that has been done between the opposition parties and the Government over keeping age verification. A Conservative Back-Bench amendment was introduced in the other place at a late stage, which is why there has not been sufficient time to debate the subject in this place either, and certainly not enough public consultation on the issue. In accepting that amendment, the Government introduced this complication.

Many noble Lords around the Chamber today have said, although I do not know if they realised this, that the definition of prohibited material does not go far enough either. You can get the sort of things that they want banned from the internet on a DVD, albeit an R18, bought from a shop. The noble Lord, Lord Farmer, gave examples of the sort of sexual activity that he disapproves of. I do not know whether he knows that some of the activity that he talks about is legal to buy in a shop on a DVD. We are getting into a mess here because there is no agreement generally about what should and should not be allowed to be seen.

--- Later in debate ---

Moved by

[Baroness Butler-Sloss]

25YD: After Clause 22, insert the following new Clause—
“Extreme pornographic material: review and repeal
(1) Subject to subsections (2) to (6) at the end of the period of three years beginning with the day on which this Act is passed—(a) section 16(1)(g) to (i) ceases to have effect;(b) section (meaning of extreme pornographic material) (1) and (2) ceases to have effect, and is substituted with the following, which comes into force on that day—“(1) In this section “extreme pornographic material” means either of the following—(a) the whole or part of a video work— (i) if it is reasonable to assume from its nature that the video work was produced solely or principally for the purposes of sexual arousal, and (ii) if the video works authority has determined the video work not to be suitable for a classification certificate to be issued in respect of it;(b) material whose nature is such that it is reasonable to assume—(i) that it was produced solely or principally for the purposes of sexual arousal, and(ii) that the video works authority would determine that a video work including it was not suitable for a classification certificate to be issued in respect of it.”(2) Following the publication of a report under subsection (3) the Secretary of State may by regulations made by statutory instrument provide that the provisions of this Act do not cease to have effect in accordance with this section but are to continue in force indefinitely or for a specified period of time.(3) The Secretary of State must, within a period of two years beginning with the day on which this Act is passed, review and prepare a report on the operation of the provisions mentioned in subsection (6).(4) The review and report must consider the effect of the introduction of the definition of “extreme pornographic material” on the regulation of pornographic material under this Act and other enactments.(5) The Secretary of State must lay a copy of the report before each House of Parliament.(6) The sections are—(a) section 16,(b) section 22,(c) section (meaning of extreme pornographic material),(d) section 23,(e) section 25,(f) section 27.”(7) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by, a resolution of each House of Parliament.”

[Baroness Butler-Sloss]

My Lords, I shall make a few points, although this was discussed in rather greater detail a little earlier. I start with the use of the word, “suspect” in relation to prohibited materials. It seems to me that it is suspect with the Crown Prosecution Service; it is an odd definition and does not mean that it is generally applicable. The words, “prohibited materials” were removed from the Bill as a result of the Perry amendment in the Commons: they were in the Bill anyway. It is important that that point is known. I have to say to the Minister that the move by the Government from children to adults in the amendments is due to the government amendments, which have been picked up by myself and other noble Lords. We would not have raised these issues without the government amendments. It is important to say that because I have no desire whatever to frustrate or inhibit the excellent work on age verification to be found in the Bill.

I think everybody agrees that this is now a mess. There is need for a proper debate on internet safety strategy, but it needs, if I may say so, a review with some teeth and pressure on the Government because of all the other government work there will be in the light of Brexit. The otherwise admirable amendment of the Labour Front Bench is, in my view, insufficiently strong because it has no teeth.

My amendment is not, despite what has been said, unduly prescriptive. If one looks with some care at the wording, which I am glad to say someone else drafted, subsection (1)(a) of the proposed new clause says that,

“section 16(1)(g) to (i) ceases to have effect”,

but that is a fallback position. It is there to require the Government, under proposed new subsections (2) to (6), to have a review and to draft a report which will be laid before Parliament. It applies only if that is not achieved within two years, and since the Government are offering at least a Green Paper by June it should not be all that difficult to have a review and a report. Consequently, the work that is suggested in this amendment meets what is needed, which is two things: that the mess should be reviewed; and that the Government should be under a degree of pressure to make sure they get on with it and do not put it into the long grass, not because they want to do so but because of the pressure of other government business. I beg to move and, if no one else wishes to speak, I should like to test the opinion of the House.