Digital Economy Act 2017 (Commencement of Part 3) Bill [HL]

Earl of Erroll Excerpts

2nd reading
Friday 28th January 2022 Lords Chamber

[The Earl of Erroll (CB)]

My Lords, I almost wonder what I can add to what the two previous speakers have said. I entirely agree with the noble Lord, Lord Morrow, in bringing this Bill; it is long overdue. I just do not know what went wrong inside the Civil Service and the Executive for Part 3 of the Digital Economy Act not to have been implemented. I entirely agree with the analysis of the noble Baroness, Lady Benjamin, that this could have been done very much more quickly. I do not understand what went wrong.

I will make two principal points. First, the online safety Bill does not even begin to cover adequately the point covered by Part 3 of the Digital Economy Act. There are some suggestions from the Select Committee as to how it might be done through the age-appropriate design code, but I do not think that has the teeth of Part 3—its financial sanctions are the only thing that will really bite and make people comply properly. I will come back to that in a moment.

The second point is the constitutional issue, which I find quite intriguing. Parliament is supposedly sovereign; it legislates and sets the rules, and the executive departments carry them out. How, constitutionally, is it correct for the Executive to overrule Parliament? I am quite worried about the balance of power between the two arms of government. The delaying tactics used by DCMS were exasperating. It failed to do something that it also made a mess of about a year earlier in informing the EU about regulations coming into force. It knew it had to do that, so was that deliberate? I do not really need an answer—we can guess.

Then we have the BBFC being appointed the regulator, as the noble Baroness, Lady Benjamin, just said; it went off at a tangent and produced regulations about data protection and GDPR, which was not its job but the job of the Information Commissioner’s Office. Its job was age verification and making sure that people were not accessing the sites. We spent a huge amount of time on Part 3 because we recognised its purpose and importance. On the whole, we did a very good job—we realised that effective sanctions had to be in there or it would not work.

What really worries me is not just extreme pornography, which has quite rightly been mentioned, but the stuff you can access for free—what you might call the “teaser” stuff to get you into the sites. It normalises a couple of sexual behaviours which are not how to go about wooing a woman. Most of the stuff you see up front is about men almost attacking women. It normalises—to be absolutely precise about this, because I think people pussyfoot around it—anal sex and blowjobs. I am afraid I do not think that is how you go about starting a relationship. Starting children off, at the age of 10 or 11—goodness knows when they start watching this stuff—thinking that this is how you should treat a girl when you first start going out with her, probably in your early teens, is not a good idea. We could have stopped it. For some reason, the Executive decided not to. I would love to know who kept blocking it, because there are funny people in there—it really worries me.

We had support for it from the major porn providers. I wondered why, and discovered that quite a few of the directors had teenage children. They did not like teenagers looking at this stuff either. They would have gone along with it as long as it was done universally, to stop the smaller ones grabbing their market. It could have been done, and they were going to help police it. We even produced a BSI PAS 1296 on how to do anonymous age verification to make sure that people who wanted to browse a website —for instance, a parliamentarian—could do so anonymously, but they would be age-verified in doing it. I chaired the working group on it, which is why I know quite a lot about that bit. It worked, and quite a few age-verification and attribute providers worked on how to do it. There are various examples out there; we even had demonstrations for whoever wanted to go and see it, including members of the Executive, the Home Office, DCMS, the BBFC, parliamentarians and everyone. They worked.

The real problem is that the online safety Bill, which we were promised would deal with this, does not. It deals with the intermediaries; the bit that Part 3 of the DEA could not cover because, I suspect, it was lobbied not to by Facebook, Google and all that lot. Quite rightly, it attacks that part of it. However, by repealing Part 3, the Government are dropping the ultimate sanctions you need to sort out the sites you go to in order to see this stuff. That is where you need the protections. It is all very well people being checked half-way down a Google search or whatever, but by the time they have got to where the search goes, that age check will not be there. You must have it at the front end of the porn sites themselves. That is what we had in the DEA; I have no idea why the Government do not want it. Again, I wonder what the motives are of those inside government doing this.

What else can I say? I do not understand why they will not just implement it. If they need to pass this Bill to do it, please do so. If they just want to get on with implementing Part 3 of the Digital Economy Act, that is probably quicker, as we would not have to go through all the stages of this Bill in this and the other House. My plea to the Government is this: get on with it.