Digital Economy Bill

Lord Ashton of Hyde Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Thursday 2nd February 2017 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, we all share a common purpose in wanting the new age verification process in Part 3 to be robust, trusted and effective. It is of course vital that we put in place powers to protect children from viewing inappropriate pornographic material, and we have rehearsed the arguments as to why it is important many times before in the House. We therefore believe that there should be an overriding duty of care on internet service providers and ancillary service providers to keep children and young people safe when using these sites.

The details of how this duty should be applied need to be subject to further consultation, which is what our Amendment 54B seeks to achieve. However, more substantially, we are concerned about the scale and the scope of the regulatory functions in the Bill, which to our mind have not been thought through and were not given sufficient scrutiny in the Commons. This was not helped by the fact that substantial new clauses were added to the Bill late on in the process which considerably extend the powers of the age verification regulator. The result is that Part 3 feels very much like a work in progress, with many of the usual checks and balances unresolved.

This was identified by the Constitution Committee and the Delegated Powers and Regulatory Reform Committee which, as we know, raised a number of specific concerns that we will address in later amendments. By way of example, the Constitution Committee stated:

“We question whether the House can effectively scrutinise the Bill when its scrutiny is impeded by the absence from the face of the Bill of any detail about the operation of the proposed age-verification regime”.


We agree with that point and we have concerns about the whole regulatory structure as it is currently set out in Part 3. That is what Amendment 54D seeks to address.

The amendment in the name of the noble Baroness, Lady Howe, specifies that the regulator should be the British Board of Film Classification, and it has been widely assumed that it would take on a similar classification role for online to that which it already carries out for offline. But the new, expanded role set out in Part 3 has much more extensive powers to follow up those who fail to apply age verification filters with fines and ultimately with the blocking of their sites by internet service providers. We believe that these functions are separate and should be carried out by a separate regulator. Indeed, when we recently met the Minister, Matt Hancock, he said that Ofcom was in a better position than the BBFC to handle the financial penalties proposed.

In addition, there is a need to specify who will carry out appeals and to ensure that this is a separate, independent organisation and not one that is appointed by the regulator. This point was raised by the Delegated Powers Committee and again we have tabled separate amendments on it that will come up later. Finally, we would argue that there needs to be effective oversight and supervision of the new regime to ensure proper governance and value for money. Arguably, Ofcom rather than the Secretary of State should have a role in holding both the classification and the enforcement agencies to account, as well as reporting to Parliament from time to time on progress. But of course Ofcom cannot do everything, which is an additional reason why we believe that we need to take time to allocate the different layers of responsibilities correctly.

No doubt other noble Lords, like ourselves, have received over the past few weeks representations from many bodies providing internet service provision, payment and ancillary services. They have raised concerns about the new powers in the Bill and how they will work in practice. Indeed, one of the ISPs went as far as to say that it was so concerned that it was going to redraft the whole of Part 3—so there is a major concern about how the powers are to be allocated. This is why we believe that it is important to get this right by taking more time to consult on the role and functions of the regulator or regulators and to bring a clearer set of proposals back to both Houses. Amendment 54D would achieve this objective.

We believe that we need to take extra time to get this right. It should not be left to the Secretary of State and the eventual system for protecting children, which is something we all agree with, will be much more robust as a result. I beg to move.

[The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, with the permission of the Committee, it may be helpful if I say a few words before other noble Lords make their contributions in order to help the rest of our debate on this part of the Bill and to put on record the Government’s position on a key issue that we will be debating today.

The BBFC is going to be given powers in the Bill to give notice to payment service providers and ancillary service providers under Clause 22 and to ISPs under Clause 23 of websites that have inadequate age verification as well as prohibited material. Many noble Lords have raised concerns with me about the scope of what amounts to “prohibited material”, so let me put on record what I have been telling those noble Lords in the many meetings we have had. The Government disagree that “prohibited material” should be excluded from the regulator’s powers. We must not unintentionally legitimise all types of pornographic content as long as age verification controls are in place. Extreme pornography can involve dangerous content. The current definition of “prohibited material” in the Bill would bring parity with the offline world—material that would not be classified by the BBFC, including material that is in breach of criminal law.

The Government’s intention is to protect children from harmful content. We have listened to the arguments that in doing so, the drafting of the Bill may have unintentionally extended the powers of the regulator too far. We all share a common goal of keeping children safe and the Government will ensure that, in achieving this aim, we have a proportionate and fair impact on others who enjoy the freedoms and equalities that are important to everyone. So I can commit that we will give this further consideration in order to reach a conclusion that this House agrees is a satisfactory way of meeting our aims of protecting children from harmful pornographic content. I will be very happy to discuss this with interested Peers before Report.

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[The Earl of Erroll (CB)]

My Lords, I will make some brief points. First, on this set of amendments I am afraid I disagree with the noble Baroness: we must get on with this. It will not be perfect on day one but the sooner we get moving the better. We have talked about this for a very long time. That is why I am not really pro these amendments.

On Amendment 55, I agree entirely with my noble friend Lady Howe. She is absolutely right to spot this lacuna: the BBFC will look at this stuff and age verification, but who will enforce it? That is a problem and I was going to raise it later anyway. She was absolutely spot on there. My noble friend Lady Kidron was also absolutely spot on about these sites. Twitter could be classified as commercial because it takes money from pornography sites to promote them. I can get evidence of that. It would be difficult for it to say that it does not promote them.

Very quickly on what the Minister said, I was going to raise under the group starting with Amendment 57 the issue of including prohibited material with the age verification stuff. We should separate protecting children from protecting adults or it will confuse things. The big danger is that if we start using this to protect adults from stuff that they should not see—in other words, some of the adult prohibited material, of which there is quite a lot out there—we run the risk of challenges in court. Everything that the BBFC does not classify because it falls into certain categories is automatically prohibited material. It is not allowed to classify certain acts. I should probably not tell noble Lords about those now as they are pretty unpleasant but they are fairly prevalent in the hardcore pornography out there. If the pornography sites are blocked from supplying adults with what they want, they will just move offshore and get round this. If they do that, there will be no point in doing age verification and we will not protect our children. That will create the first major loophole in the entire thing.

I have this from the pornographers themselves. They know what they are doing. However, they are very happy—and would like—to protect children. If we leave them alone and argue through the Obscene Publications Act and other such things as to what they must stop adults seeing, they will help block children. They are very keen on that. Children just waste their time as they do not have money to spend. At the end of the day, the pornographers want to extract money from people.

I am advised that the real problem is that prohibited material includes content that would be refused a BBFC R18 certificate. The Crown Prosecution Service charging practice is apparently out of sync with recent obscenity case law in the courts. Most non-UK producers and distributors work on common global compliance standards based on Visa and Mastercard’s brand-protection guidelines. Maybe we should start to align with that. We should deal with that separately under the Obscene Publications Act. It will be very easy for the BBFC, the regulator or the enforcer to tell what does not have age verification on the front. That is yes/no—it is very simple. The trouble is that if we get into prohibited material, it will end up before the courts. We will have to go through court procedures and it will take much longer to block the sites. I would remove that from here. I shall leave my other comments to a later stage.

[Lord Ashton of Hyde]

My Lords, I am grateful for those contributions. They address some very important issues, some of which we will deal with now and some of which we will deal with later during the progress of the Bill. To start at the end, the noble Earl, Lord Erroll, made some interesting points regarding the statement that I made. We absolutely acknowledge some of them. I have listened to his suggestions. Our focus here is to protect children. That is what this Bill is for. That is what our manifesto commitment was. When he sees our suggestions, I hope that he will be able to contribute to the debate on Report—but I have noted everything he said.

The introduction of a new law requiring appropriate age verification measures for online pornography is a bold new step. It represents the first stage of ensuring that commercial providers of online pornographic material are rightly held responsible for what they provide and profit from.

Amendment 54B would require the regulator to publish guidance about the overarching duty of care on internet service providers and ancillary service providers, and their responsibility to ensure that all reasonable steps are taken to ensure the safety of a child or young person involved in activities or interaction for which the service provider is responsible. The purpose of our measures is to protect children from pornographic material. Seeking to stretch the framework further to regulate companies on a different basis risks the delivery of our aim. However, that is not to say that we want to ignore the issue. We take the issue of child safety online seriously and engage intensively with the industry through the UK Council for Child Internet Safety to ensure that robust protections are in place.

The Government expect industry to play a leading role in internet safety provisions, as it is best placed to offer safety and protection to children and young people. We know that it is already doing this and has default protections for under-18s, including the use of parental controls and tools to allow users to flag content, protect user privacy as well as educate users on staying safe with information and advice. We will have further opportunities to discuss the role of the industry, including social media and internet service provider filters, later in Committee.

Amendment 54D seeks to introduce a new clause with the requirement that the Secretary of State must consult on the role of the age verification regulator. The clause further seeks that the Secretary of State must lay before each House of Parliament a report on the results of the consultation and the Secretary of State’s conclusions, with any appointments to be subject to approval in each House. The introduction of the measures requiring appropriate age verification for online pornography follows public consultation. We asked about the powers that a regulator should have and there was strong support for a number of responsibilities that we have introduced. The passage of this Bill has provided an important opportunity for debate on this and we have seen the introduction of an important new blocking power for the regulator, which we shall discuss later.

We are grateful to the DPRRC and the Constitution Committee for their reports, which a number of noble Lords mentioned. They made a number of recommendations about the designation of the regulator and how the regulator should fulfil its role. We are carefully considering those and will publish our response before Report.

Amendment 55, in the name of the noble Baroness, Lady Howe, would specify that the Secretary of State is to designate the British Board of Film Classification as the age verification regulator. As the Committee will know, Clauses 17 and 18 provide for the designation of the regulator and we intend to designate the BBFC to carry out most—as the noble Baroness, Lady Howe, reminded us—of the functions of the regulator. Indeed, some noble Lords may have seen the BBFC’s recent presentation to the Children’s Media and the Arts APPG.

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[Baroness Jones of Whitchurch]

My Lords, I thank the Minister for his opening statement and for his comments now, but I do not really feel that he addressed our concerns about the overarching architecture of the regulatory structure: where the power should lie, the detail of which regulator has which functions and so on, and whether there is a need for someone to oversee the whole regime.

I also thank the Minister for his offer of further discussions about this, but as a number of noble Lords have said, it is rather frustrating that the information and debate that we ought to be having here in Committee is being shifted backwards so that we will have it in correspondence or perhaps offline before Report. Normally, we would expect the government proposals to be in front of us here, so that we can debate them in detail. As the noble Baroness, Lady Byford, said, once again we find that the debates that we should be having in Committee are happening on Report, which makes it very frustrating for everybody involved. That also applies to the reports from the Delegated Powers Committee and the Constitution Committee. With respect, the Government have had those documents for several weeks now, and I would have thought it would have been possible to have given us a response as to how the Government intend to react to them before today’s debate. I find this whole process for considering Part 3 very frustrating. Notwithstanding that, I know that the Minister means well and I am sure we will all want to take up his offer of further discussions, if that is possible.

The noble Baroness, Lady Howe, made a very good point about who the other regulator will be, and I was not sure that the Minister really answered it. Again, if we are going to get down to putting in the Bill that the BBFC will have part of that function, it is right that we should also say who will have the other part of it; otherwise, the Bill is not going to make sense. So I have an ongoing sense of frustration. Some of the issues that a number of noble Lords have raised will spill into some of the discussions that we will have on other amendments and will no doubt come up several times, regrettably, although maybe that is just because of the way that we have structured some of the amendments.

I agree absolutely with the noble Baroness, Lady Kidron, that we need a much clearer definition of ancillary service providers. To the outside world, that is a non-phrase really, but it means either so much or so little, and we just need some clearer definition of what it means in terms of the responsibilities of social media providers. It may well be, as I think the noble Lord was suggesting, that some of them have different responsibilities from others, but we need that debate. It is a really important debate, since, as the noble Baroness was saying, children are accessing this material and there do not seem to be any real proposals in front of us for how we are going to get a grip on that. That is perhaps something that we can return to later as we debate other provisions in Part 3.

Finally, I think the Minister strayed into the whole issue of what is prohibited material. Again, we have amendments on that later and will return to it when those are discussed, but I thought that we had made more progress on that than the Minister is now suggesting. I know that a number of noble Lords had a meeting with Matt Hancock, the Minister, a couple of weeks ago, and I thought that we were edging towards a new form of words, but it does not seem that this is before us from what the Minister has said. So again, we have a level of frustration about this.

[Lord Ashton of Hyde]

Let me confirm that I hope we are edging towards some agreement; it is just that, as the noble Baroness will be aware, there are times when one can announce these things and there are times when one cannot. I agree with her that it is somewhat frustrating—in the same way that it is frustrating when, though we have had the Explanatory Memorandum since the Summer Recess, amendments appear at the last minute. It is a frustrating process.

[Baroness Jones of Whitchurch]

Well, this is because the discussion has gone on over the summer, with the Government and with other people. We have been seeking clarification, which we have not had, which is why we finally put down amendments. Anyway, this debate is going to continue, I think, through the course of Part 3. In the meantime, I beg leave to withdraw the amendment.

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[Lord Ashton of Hyde]

My Lords, this has been an important and interesting debate—I can tell that by the number of Peers who are arriving to hear my response. I also appreciate very much the offer of help given by the noble Baroness, Lady Jones. I have listened carefully to the arguments and again I acknowledge that we are not able to give our answer on the DPRRC’s report, but as the noble Lord, Lord Clement-Jones, said, it is very important to get it right and we will produce the response soon.

The age verification regime was designed to provide a proportionate and practical response to the very real problem of the easy availability of internet pornography to children, and we need to bear that in mind when considering this issue. Amendments 55A, 69 and 229B are concerned with appeals. The BBFC has a strong track record in running the system of classification, including a two-stage appeals process which includes an appeal to an independent authority. We understand the desire to specify in detail in the Bill what an appeals process must look like for what is undoubtedly a serious matter, but we are satisfied that the BBFC is in a strong position to develop and administer a fit-for-purpose appeals process. Clause 17 specifies that the Secretary of State may not designate the regulator until satisfied that arrangements will be maintained by the regulator for appeals by the key persons involved in the regulatory framework, as set out in Clause 17(4)(a) to (e). As the noble Baroness, Lady Jones, said, the DPRRC has made some well-considered recommendations on appeals that we are considering and will be responding to before Report.

Amendments 54C, 56A and 62A provide that the Secretary of State must, in regulations made by statutory instrument, lay guidelines before each House of Parliament on different areas of the regulatory framework. The internet, as we all know, is a fast-changing area and the legislation has been drafted with the necessary flexibility to create a proportionate regulatory framework. For example, it will be for the regulator to publish guidance about ancillary service providers. I have also noted the recommendation of the DPRRC on these matters and I can assure noble Lords that we are considering it carefully before responding.

On the issue of ISP blocking, government Amendment 67 ensures that the regulator must not direct an ISP to block a non-compliant site should that be detrimental to national security, the prevention or detection of serious crime, or an offence listed in Schedule 3 to the Sexual Offences Act 2003. We believe that it is right that the actions of the regulator in seeking to protect children from pornographic content should not have unintended consequences for the work of law enforcement and the security and intelligence agencies in combating serious crime and protecting national security. I am confident that the industry will take a responsible position and therefore envisage that the regulator will need to use this power only sparingly. However, where it does need to be used, I would suggest that the regulator would never wish to be in a position where it might have an unintended impact on efforts to ensure public safety.

The provision provides an important safeguard for circumstances in which a site might form part of an investigation. The Government and the regulator will agree arrangements for how the deconfliction process will take place. This is an important step towards ensuring that the regulatory regime functions in a successful way and giving the regulator a framework in which to succeed.

Amendment 66 tabled in the name of the noble Lord, Lord Paddick, and other noble Lords brings forward blocking by court order. We recognise that providing the regulator with the power to direct internet service providers to block content is a serious step, but the conflicting views of noble Lords in the debate show that this is a difficult area to get right. We have always been clear that we want to build an effective regime. This is fundamentally different content to regimes where court orders are used. As I have said, and the noble Baroness, Lady Jones, agreed, we envisage that the regulator will need to use this power only sparingly. However, the cost and process of the court order procedure would place an undue burden on the system We know that the court order process for copyright, for example, is not without issues, and unlike copyright where the individual is seeking a court order, in this case there is a regulator with expertise in classification.

It is important to note that our regime is about encouraging compliance by the industry. Giving the regulator the power to direct internet service providers is the proportionate and right approach to ensuring that children are not inadvertently exposed to harmful pornographic material. With that explanation, I hope that the noble Baroness will withdraw her amendment.

[Baroness Jones of Whitchurch]

My Lords, I thank all noble Lords who have contributed to this discussion. I say to the noble Lord, Lord Morrow, that we are all trying to balance child protection and civil liberties; that is the issue we are trying to resolve. Indeed, there is no black-and-white answer and it may well be that we will need to have further discussions. But I remind noble Lords that the Delegated Powers Committee said that it considered it objectionable for an unspecified regulator—people have talked about it being the BBFC but I do not think it necessarily will be—to have so much power to impose fines and take other enforcement action. We need to look again at how we can ensure some other oversight of those powers. Amendment 66 would provide a legal structure for all that, and we still feel it would provide the certainty that does not exist under Clause 23. Further, it would provide a degree of independent oversight, which Clause 23 as it stands does not.

I say again that the ISPs caught in the middle of all of this are very concerned about the way Clause 23 is worded. They feel that they will be caught in the middle of legal battles, and it may well be that whatever we decide, these matters will end up in court anyway. Given that, the more legal clarity and specification we can put in the Bill, the better, because that will help everyone to understand their rights. Some noble Lords have also queried the appeals process, but it is important to spell out not only what that process should be, but that it should be independent. Again, our amendments seek to achieve that.

I know that the noble Lord has said that he wants to come back to this when the more detailed response to the Delegated Powers Committee’s report has been produced. I hope that our amendments have been helpful and that they may provide a working copy from which he can put his ideas together. In the meantime, I beg leave to withdraw the amendment.