Data (Use and Access) Bill [HL]

Baroness Chakrabarti Excerpts

Consideration of Commons amendments and / or reasons
Monday 12th May 2025 Lords Chamber

I conclude by asking the Minister to give his assurance that, were reasonable excuse to remain in these offences, no court in England and Wales would interpret reasonable excuse as a perpetrator claiming that they were creating the content for artistic purposes. The baseline should always be a woman’s consent; there is nothing more important.

[Baroness Chakrabarti (Lab)]

My Lords, I will speak primarily to pay tribute to the noble Baroness, Lady Owen of Alderley Edge. We need to be crystal clear that we would not be here and we would not have come as far as we have—notwithstanding residual concerns—but for her work. Her entry into your Lordships’ House was greeted by the most shocking barrage of misogynistic innuendo and abuse, including from a septuagenarian, privileged veteran of progressive journalism who really ought to have known better. It was pretty ghastly to watch.

However, it has been a joy of equal measure to witness the noble Baroness’s response to her critics, and this has been the best kind of response. With her campaign—backed by supporters across the House, including the noble Lord, Lord Clement-Jones, and supporters in civil society and the academy—she has made, in less than two years, a greater contribution to the most vital part of the legislative work of this House than many make in decades. Perhaps the young have something to teach their elders, after all, particularly about the new and all-too-lawless continent of the internet, which we have been discussing for some time today.

After nearly 30 years at the interface between criminal policy and the ECHR, I share the analysis of the harm caused by this 21st-century cybersex offence that has been offered by the noble Baroness, Lady Owen, and the noble Lord, Lord Pannick. By contrast, I fear that Whitehall has displayed a breathtaking lack of empathy for the mostly women and girl victims of this conduct—a lack of empathy that, at times, verges on the obtuse. That has gone on for some years, as the noble Baroness indicated. It accounts for the time taken by the Government to agree to the offence being imprisonable, but I am glad that we finally got there.

Now, at the 11th hour, I too fear the sheer breadth of the Government’s reasonable excuse defence, which might drive a coach and horses through the protection. This kind of degrading conduct is no light-hearted matter. The creation of deepfake intimate image without a person’s consent is capable of destroying their dignity, mental health and life. More broadly, it is capable of changing the whole flavour of our society: in the classroom, in the workplace and wherever men and women rub along together. That is what is at stake.

“Reasonable excuse” defences are appropriate and necessary in the context of broad, strict liability offences capable of catching otherwise innocent behaviour. The classic example is the strict liability offence of being in possession of a blade in a public place. Without that “reasonable excuse” defence, any of us could be criminalised on the way back from the kitchen department at John Lewis, so there is an obvious reason for a reasonable excuse defence to that strict liability offence.

I put it to the House that we would not dream of a “reasonable excuse” defence for sexual assault. The offence requires intention, action and the sexualised aspect. Once these are established, there simply is no reasonable excuse. I believe that the creation of a deepfake intimate image is equivalent to sexual assault if it is without consent. I learn that the Government are concerned about freedom of expression in the context of creating deepfake intimate images without someone’s consent. Let us please remember that freedom of expression is not an absolute; it must be balanced with proportionate interference to protect the rights of others, hence laws against breach of copyright, child pornography and so on all over the world, including in the United States—famously, the land of the First Amendment.

I really must press my noble friend the Minister to explain in some detail—more than we have heard so far—why the tighter “reasonable excuse” defences from the noble Baroness, Lady Owen, of red teaming and political satire do not do the trick? In other words, what are these other reasonable excuses for pernicious conduct of this kind? Why should there be any reasonable excuse for the solicitation offence? Where is the freedom of expression in soliciting that someone else creates the deepfake image?

I noticed the introduction of the concern about covert policing—I think my noble friend the Minister raised it—but surely he recalls the covert human intelligence Act, a very controversial Act of 2020 that I am still very concerned about, which allows the authorities to grant advanced immunity to people committing criminal conduct in the course of their covert surveillance. I am a bit concerned about that suddenly popping up as a reasonable excuse of government at the 11th hour on this offence.

Without further specifics, I am really concerned about the impression that the Government just do not get it, that they do not totally understand what is being perpetrated online and that they are not properly taking the protection of women and girls sufficiently seriously. I would really regret that. This is the coalface of human rights at this moment in the 21st century. I really hope there is still time for the Government to listen further to the compelling arguments of the noble Baroness, Lady Owen, and think again.

[Baroness Kidron (CB)]

My Lords, the noble Baroness, Lady Chakrabarti, has said everything I was going to say and more and better, so I want just to pay tribute to the noble Baroness, Lady Owen of Alderley Edge, and to say that I too have witnessed her forensic fight over the last few months. I hugely admire her for it, and I congratulate her on getting this far. I absolutely share all the concerns that both noble Baronesses have expressed. Just in case I do not have the opportunity again, I congratulate the noble Baroness on her extraordinary work and campaigning.