Lord Ashton of Hyde
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Lord Ashton of Hyde ExcerptsMonday 20th March 2017
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Lord Ashton of Hyde
“(1) A person contravenes this subsection if the person makes pornographic material available on the internet to persons in the United Kingdom on a commercial basis other than in a way that secures that, at any given time, the material is not normally accessible by persons under the age of 18.”
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, we now move in this wide-ranging Bill from the esoteric delights of the universal service obligation, dynamic spectrum access services and the Electronic Communications Code to a crucial area: namely, seeking to protect children online.
As we have said before, the introduction of a new law requiring appropriate age verification measures for online pornography is a bold new step, with many challenges. It ensures that commercial providers of pornographic material are rightly held responsible for what they provide and profit from. Commercial providers of online pornographic content provide an incredibly large amount of easily accessible content to UK users, with little or no protections to ensure that those accessing it are of an appropriate age. It is imperative that we retain controls on such material and, in this terribly sensitive area, aim to strike a balance between freedom of expression and protection of the young.
Perhaps the most sensitive challenge is how we approach material that would not be classified by the BBFC in the offline world. We have heard concerns from some quarters that the current definition of “prohibited material” may be going too far in the type of material that the regulator is able to sanction above and beyond the age verification requirements. We heard in Committee that this,
“would give the regulator extended powers of censorship beyond that originally envisaged in the Bill”,
that it would potentially set,
“new limits on consenting adults accessing pornography that is not harmful to themselves or others”,
and that,
“this is not the place to resolve these wider debates on adult consensual pornography”.—[Official Report, 2/2/17; cols. 1355-56.]
We agree. Our policy intent is child protection, not censorship. Our amendment redefines the scope, taking an approach based on the definition of an “extreme pornographic image” in the Criminal Justice and Immigration Act 2008. This captures grotesque sexual violence, including rape. We have thought long and hard about where we should draw the line. We have adopted two principles. First, as this measure is about protecting children, we do not want to create a new threshold for what adults can or cannot see. This is not the place for that debate. Secondly, we want to ensure that we do not allow the regulator to step on the toes of others involved in policing this territory.
The definition of an “extreme pornographic image” in the Criminal Justice and Immigration Act provides a good marker. I know that there are also concerns about sexual violence against women and other acts that do not meet the “extreme pornography” definition. We absolutely do not intend to create a regime that unintentionally legitimises all types of sexually explicit content as long as age verification controls are in place. We are most definitely not saying that material not allowed under other legislation is allowed if age verification is in place.
That is why government Amendment 25YV makes it absolutely clear that content behind age verification controls can still be subject to criminal sanctions provided by existing legislation: for example, the Obscene Publications Act. But we concede that there is unfinished business here. Having protected children, we still need to examine other online safety issues. As we will come to later in the debate, my department is leading cross-government work on an internet safety strategy that aims to make the UK the safest place in the world to go online. We want to understand more about the scope of the problem and identify where there are gaps in our current approach to tackling online harms.
We have heard the calls to provide the age verification regulator with powers to block criminal images involving children, as defined by the Coroners and Justice Act 2009. However, at the forefront of cross-government thinking on this was the need not to cut across the excellent work of the Internet Watch Foundation on child sexual abuse content, complicating the landscape and making it harder to effectively and efficiently protect children. It has never been the case that this regime would seek to regulate that child sexual abuse material. Fundamentally, we are dealing with different harms, with different responses, and it is right that they are treated separately.
With child sexual abuse material, the Government seek to ensure that it is eradicated at source: that content is not just blocked but actively taken down from the internet. Providing for the age verification regulator to simply block this material in the course of its work risks this. The BBFC and the IWF are in agreement that they do not wish the BBFC to take on the role of policing child sexual abuse material, or content likely to fall within this classification. The Internet Watch Foundation does a vital and difficult job and we should not seek to complicate that by conflating with age verification.
This is a sensitive subject and we know that we will never satisfy everyone. But I hope that I have convinced noble Lords that the position we have settled on is neither arbitrary nor a sop to one interest group or another. I commend the government amendments in this group.
Baroness Kidron (CB)
My Lords, I find myself very much in the same school as the right reverend Prelate in not understanding how we can justify a form of sexual violence by one group towards another. It is very upsetting. However, I want to raise a slightly different issue that I tried to raise in Committee. I suppose that it is covered by government Amendment 25B in that it refers to commercial providers. I keep feeling that we are missing the point here—missing the business model that is fuelling all this pornography. If the amendment were to refer to those who monetise pornography—that is, those who receive money from pornography—we could make a much cleaner sweep of this issue. I think that many noble Lords will have noticed this morning—
Lord Ashton of Hyde
My Lords, would it help the noble Baroness if I mentioned that later in the debate we will be talking about the definition of commercial providers?
Baroness Jones of Whitchurch (Lab)
My Lords, I am grateful to the Minister for introducing his amendments today. I am also grateful to the noble Lord, Lord Paddick, for bringing some clarity to what has been quite a complicated and emotional debate this afternoon. I urge noble Lords to look at Amendment 25YW in this group, which is in my name, because I believe that would take us some way through some of the dilemmas that we face this afternoon.
As has been said, these amendments arise from a dialogue we have been having over the last few weeks about the definition of “prohibited material” and “extreme pornography”. That arose as a result of late additions to the enforcement measures in the Commons, which meant that the Bill did not receive the scrutiny it deserved at that stage. Hence we have been scrambling to understand and to consider the new requirement for internet service providers not only to block sites that do not have age verification filters in place for children but also to block access to other illegal pornographic material. I agree with other noble Lords that it is very unfortunate that this has come at such a late stage and that we are trying to deal with this important issue so late in the process. We are all at a loss and have lacked something because of it.
Since then, several variations of wording have been taken from Acts that already exist and put forward as the best way of defining the new obligation. We find ourselves having to take a significant decision on which of these various options would best benefit the law going forward. All of them would benefit from further debate.
In this context, and given the sensitivities involved, we welcome the Government’s attempt to strike the right balance on this issue. Government Amendment 25YV is crucial in this regard. It is a short amendment that says:
“Nothing in this Part affects any prohibition or restriction in relation to pornographic material or extreme pornographic material, or powers in relation to such material, under another enactment or a rule of law”.
In other words, if pornographic material is illegal offline, it would also be illegal online. The amendment underlines that point. This is the parity between offline and online that many people have sought, and it echoes the position that the Minister spelled out when we met him recently. We support this approach because we believe that any definition of illegal material transposed into the Bill at this late stage should be based on current statutory definitions.
We also recognise the added challenge that the current legal definitions are not being applied consistently, and that the Crown Prosecution Service guidelines need to be updated—which is another issue that we have been debating this afternoon. Only then will we achieve that true parity in removing offline and online material. But we are firmly of the view that this disparity should be addressed separately, and thoroughly, in conjunction with the Home Office. We are also firmly of the view that today we should focus on the intent of this Bill, which is to introduce age verification processes to stop children under 18 from accessing pornography. The debate this afternoon has muddied the water, because that is very clearly the intent of this part of the Bill, and the way that the government amendments are set out achieves that very important aim.
This is a huge step forward and a key policy prize. It is something that not just the Government but all the main political parties have been committed to. There is no doubt that if it is implemented successfully—although that is a huge ask—there will not be the opportunities for children to access the illegal material that is concerning noble Lords today. I accept of course the point made by the noble Lord, Lord Browne, that this cannot be 100% watertight—none of these things can be. We are on a journey. I think it was one of the right reverend Prelates who said that children are very tech-savvy and we have to keep up with them. Of course we do, so this will not be 100%. But it is a massive step on a journey that will stop an awful lot of casual viewing by children of internet pornography.
That is why we believe that we should retain our focus on children—to prevent all damage to their relationships, self-esteem and mental health, and all the issues which, we understand, result from underage viewing of pornography, which we have debated repeatedly during the course of the Bill.
Of course, that is not to say that there are not other huge social issues about adults viewing violent or degrading pornography—and we all have our views on the level of acceptability of that. I resent the fact that some people think that I am in favour of a free for all, because that is certainly not my position. Some of the issues have been raised by noble Lords today, and of course it is right that they are debated and resolved in the public realm. I agree with the noble Lord, Lord Alton, that there needs to be a public debate. It has been lacking until this debate today, which I believe is the beginning rather than the end of a debate which should take place.
We welcome that debate, but we do not feel that amendments to change the definition of illegal pornographic material which adults can access online is appropriate for a part of a Bill that is intended for another purpose. We believe that this should be part of a wider debate which factors in such matters as our traditional tolerance towards consenting adults and the potential consequence of more online material being driven out of reach on to the unregulated dark web if we do not get the regulation right. In this context, we appreciate the opportunity which the Minister has proposed for a wider round-table debate on internet safety and will happily work with colleagues away from the Bill on how we can best deliver solutions to some of the wider concerns that have been expressed today.
In the meantime, we recognise that the definition of extreme pornography now proposed by the Government is not ideal. It may be only a backstop pending a fuller review of more appropriate wording. That is why our Amendment 25YW would require consultation on the definitions used in this part of the Bill and a report from the Secretary of State back to Parliament within 18 months. We think that that would be a real step forward.
Although we have sympathy with the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss, we are concerned about the more prescriptive end of her review. We agree that there should be a review, but the very fact that she has already spelled out what the outcome should be causes us concern.
Our view remains that we should be looking for an updated definition based on something deliverable online and offline with equal strength. A number of definitions are out there—not just the definition of extreme pornography that we have been debating today. In other pieces of legislation there are other definitions. We need to do a job of work which is more than we can do today to consider all those definitions, consider what the Crown Prosecution Service can deliver in terms of taking action against people, and work on that basis.
I really hope that we can work together on this, because this has felt like a very divided debate. It is not; there is an enormous amount that we agree on. It is the tactics of how we go forward that we are struggling with.
In conclusion, we support the government amendments, as far as they go, but I hope that the Minister will be able to commit to a wider review with a deadline for reform—in conjunction with his Home Office colleagues, because we recognise that this goes wider than his department’s remit. I hope that noble Lords will look at our amendment and support it. I look forward to the Minister’s response.
Lord Ashton of Hyde
My Lords, this has been a wide-ranging debate and I find myself in a slightly uncomfortable position: I am taking issue with several of my noble friends but I very much agree with the noble Baroness, Lady Jones, and the noble Lord, Lord Paddick. If I may, I shall start with the amendments tabled by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Jones, and then move on to our amendments and reply to some of the points that noble Lords have made.
Obviously, Amendment 25YD, in the name of the noble and learned Baroness, Lady Butler-Sloss, is dependent on the preceding government amendments being passed. It provides that, three years after the Act passes, the definition of “extreme pornographic material” will cease to have effect and will be replaced by a definition of material which would not be classified—in effect, the current definition of “prohibited material”.
The debate on this has been strong on both sides, and it is an interesting idea that we have considered. However, our aim with this Bill, as has been said by several noble Lords, is to protect children from accessing pornographic material. We are creating parity between the offline and the online worlds in protecting children from being able to access pornographic material. These are different and incomparable places, and this is the closest we can get on parity of content through the age verification regime. Subject to the Bill shortly gaining Royal Assent, to specify that this should happen in spring 2020 unless a review finds otherwise by spring 2019 is in our view unnecessarily restrictive. It presents a binary choice that predetermines the outcome of any review. We know this is a fast-moving environment, and we do not know what the landscape will look like in two years’ time. Forcing the legislation into doing something which restricts the response to how children are protected online could have unintended consequences.
What we are doing now is: through the guidance to the regulator, we are providing for the regulator to report annually on the effectiveness of the regime. This will provide the opportunity to review the regime and take any necessary action. This is a big step forward without precedent, and to focus on this one issue, which is undoubtedly important, risks being able to ensure that the regime as a whole is as effective as possible in the future at preventing children from accessing pornography online.
The amendment in the name of the noble Baroness, Lady Jones, seeks to introduce that the Secretary of State must produce a report on the impact and effectiveness of the regulatory framework provided for in this part and must consult on the definitions used within this part. The report must be laid 12 to 18 months after the powers come into force. We must aim to lay the groundwork for success before the powers are introduced, and the regulatory framework we are providing will do that. However, this will be a bold new regime with many challenges and it is right that the effectiveness of the regime is reviewed. That is why, as I have just said, through the guidance to the regulator we are providing for the regulator to report annually to the Secretary of State on the impact and effectiveness of the regime. Placing a formal requirement on the Secretary of State to do this is, in our opinion, unnecessary.
The Bill is neither the end nor the extent of our interest in child internet safety. The implementation of age verification will be watched closely from day one. We have consistently recognised the need to be flexible in our approach and this will remain the case in addressing any issues that may arise. This work forms part of our wider response to online safety, and the work that has begun in the internet safety strategy demonstrates our clear commitment to ensuring that people in the UK have a positive experience online. I shall come to that a bit later. With that explanation I hope noble Lords will not press their amendments in due course.
I turn now to replies to some of the points noble Lords made about the government amendments. I echo very much the remarks of the noble Lord, Lord Paddick. For those who have not participated before in this Bill’s process, it would be helpful to repeat some of the things he said about how we got here. In some ways it is a mischaracterisation—not malicious, I hasten to add, and maybe “misunderstanding” is a better word—that we are watering down the controls, as my noble friend Lord Farmer said, or that we slipped this in at the last minute.
As the noble Lord, Lord Paddick, said, the position we are in is because we have accepted amendments through the course of the Bill. It is a bit unfair of the noble and learned Baroness, Lady Butler-Sloss, to criticise the fact that this debate is happening so late in the day when the only reason we are having it is because we accepted the amendment in the House of Commons. The issues about where we go on what is effectively internet censorship were raised in Committee in this House. So we are discussing these things because noble Lords and Members of Parliament have changed the Bill as we went on. The one thing on which we all agree—and this has been confirmed all around the House—is that we want to address child online safety. One of the big advantages from this Bill is that, by getting effective age verification in place, we have made a huge step forward.
Lord Mackay of Clashfern
The noble Lord, Lord Paddick, said that the definition of prohibited material had become somewhat “suspect”—I think that was his word. Why is that? Is it a legal definition and why has it become suspect?
Lord Ashton of Hyde
The reason is that the CPS decides whether to prosecute on offences as it sees them. It has guidance, which has been around for some time. The fact is—and some noble Lords may not agree with this—that views have changed and the CPS does not always prosecute in line with its own guidance.
A noble Lord
Lord Ashton of Hyde
The reason it does not is because it has discretion in individual cases. Sometimes it thinks it is in the public interest to prosecute and sometimes it does not. When the noble Lord said that it is discredited, I think he means that the CPS does not always prosecute every situation in line with its own guidance. If I have misinterpreted what he said, I am sure he will be able to tell us.
Lord Paddick
The noble and learned Lord asked a good question. My understanding is that the definition of prohibited material which the British Board of Film Classification uses is supposed to incorporate all the different definitions in different laws about what is obscene and not acceptable. The fact is that, in regard to a number of elements of those laws, the Crown Prosecution Service no longer prosecutes people for possession of that material. The definition of prohibited material therefore includes material for which someone would never be prosecuted. To that extent, the definition of prohibited material has fallen into disrepute.
Lord Ashton of Hyde
Lord Ashton of Hyde
My Lords, these government amendments are primarily designed to address the concerns of the Delegated Powers and Regulatory Reform Committee. The committee’s first challenge is defining who exactly is in scope of the new age verification regime. Amendment 25D provides for the Secretary of State to make regulations on the circumstances in which persons should or should not be treated as making pornographic material available on a commercial basis. We have provided these in draft to aid understanding of how this power will be used and welcome views before a final version is subject to affirmative parliamentary procedure. The intention of the regulations is primarily to capture those who make money or benefit from making pornography available online, including making it available free of charge. It is not the intention to capture those sites, for example, that mostly contain non-pornographic content. However, it is the intention to cover those who, for example, market themselves as making available pornographic material and who may benefit from it.
Questions have rightly been asked about pornography on social media and our approach has been to not rule out specific platforms. In the regulations we are suggesting the scope should not include sites where an overwhelming majority of users are clearly not accessing to view pornography or where an overwhelming majority of the content is not pornographic in nature. We do not want to let anyone off the hook and where pornographic material is available but not within scope, it may be that the site will be enabling and facilitating the availability of commercial pornography and subject to an ancillary service provider notification. It will depend on the facts of any given case. Many social media sites already act responsibly. We will also look at the issue further as part of the cross-government work on the internet safety strategy that my department is leading. I will say more about this later.
We accept the committee’s argument for greater parliamentary scrutiny of who the regulator is. Amendment 25R would ensure that the first designation to be made for any given function is by the affirmative parliamentary process. As noble Lords will be aware, we have been working closely with the British Board of Film Classification as the intended regulator for much of the regulatory framework, including directing ISPs to block sites. We will come back to this in a later group, but let me say now that we have absolute confidence in the BBFC and will strongly resist anything that endangers the introduction of these important measures to protect children.
We have also addressed concerns that the regulator has too much flexibility in setting its own guidance. Amendment 25YQ provides for the Secretary of State to issue guidance to which the regulator must have regard, as is standard practice for statutory guidance. The regulator cannot choose to ignore this guidance. It provides direction to the regulator in a number of areas, including the important power of internet service provider level blocking. ISPs will be expected to take all reasonable steps to enact a notice from the regulator. We have circulated this guidance in draft. It is based on the many discussions and debates that have taken place over the previous months, but I stress that this is a draft, and we are now seeking views from parliamentarians and others before a final version is laid in Parliament.
In addition to the guidance to the regulator, we have also strengthened the requirements on the regulator in relation to the guidance it issues in Amendments 25YM and 25YA. The age verification regulator must publish guidance about the types of arrangements for making pornographic material available that the regulator will treat as being compliant and guidance about the circumstances in which it will treat services provided in the course of a business as enabling or facilitating the making available of pornographic material or prohibited material. Government believe that internet sites, including social media, can be classified by the regulator as an ancillary service provider, where they are enabling or facilitating the making available of pornographic or prohibited material. This would mean they could be notified of pornographers to whom they provide a service. This guidance will now be subject to an affirmative parliamentary procedure the first time that it is made, providing further opportunity for scrutiny.
Amendment 25M requires the Secretary of State to be satisfied that the intended appeals arrangements are “sufficiently independent” as part of the designation process and we provide further details on this issue in the draft guidance to the regulator, on which I will say more in a moment. Again, we will come back to this in a later group, but we are confident that further parliamentary scrutiny at the time of designation provides an appropriate time to ensure that the arrangements are right. I beg to move.
Baroness Jones of Whitchurch
My Lords, I am grateful to the Minister for explaining the thinking behind these many amendments. I have read them and think that I understand them but I am sure that he will correct me if my interpretation is wrong. They underline the considerable amount of additional work that is still to be done if we are to get a comprehensive age verification scheme properly up and running.
The Minister will know that the Delegated Powers and Regulatory Reform Committee was of the view that many of the details should be spelled out on the face of the Bill. For example, it expected details such as the definition of “commercial basis” and the identity of the regulator or regulators to be specified at this stage. However, the provision of this information, like many other details, has been put off by the Government to a later date, to be included in the guidelines to which the noble Lord has referred and to be discussed in further debates that will be taken under their auspices.
The DPRRC also requested that guidelines on how the financial penalties should operate should be brought before this House as an affirmative resolution. I remind the House of a particularly stark criticism that it wrote at the time. It said:
“We consider it objectionable as a matter of principle that a regulator, who is to be clothed with extensive powers to impose fines and take other enforcement action, should itself be able to specify how key concepts used in clause 15(1) are to be interpreted”.
I would be grateful if the Minister could justify why what seems to be a rather straightforward piece of advice from that committee has once again been rejected. As I understand the noble Lord’s amendment, it is the offer of a negative procedure that is now being put before us, which of course does not carry the same weight.
The amendments deal also with the provision for appeals, which again were debated at length in Committee. The Minister will know that the DPRRC recommended that a statutory right of appeal should be placed in the Bill. Again this advice seems to have been rejected by the Government and, instead, they are relying on a new formulation of words specifying that those hearing any appeal should be “sufficiently independent” of the age verification regulator. As we have heard, the detail of this “sufficiently independent” regime is spelled out in the draft guidance.
I have to say that we share the view of the noble Lord, Lord Paddick, that this really is not good enough. The guidelines specify that the independent appeals panel will effectively be appointed and funded by the regulator. However, we have tabled a separate amendment—Amendment 25P, which will come up in a later group—that specifies our belief that the appeals process should indeed be fully independent of the regulator. We believe that our amendment is more appropriate than that of the noble Lord, Lord Paddick. It would be helpful if the Minister could explain why the DPRRC’s advice on this matter has been rejected.
I return now to the overall package of government amendments in the group. As I have said, they seem to flag up a great deal of further work that will need to carry on outside the Bill. As it is worded, the Secretary of State will issue guidance to the regulator and the regulator will, in turn, issue guidance for approval to the Secretary of State. That seems a rather cosy arrangement of swapping guidelines back and forth, but it is not quite clear to me at what point Parliament will have the final say in all these matters.
Some of the outcomes will come before the House in the form of affirmative regulations but others will not. We do not yet know who the regulators will be, how the age verification regime will work, how the privacy checks will work, what the definition of “commercial activities” will be, how ancillary services will be defined and, crucially, we do not know how the internet service blocking system will work or what kind of fines will be imposed on those who fail to comply. Without wishing to overlay this, it all feels like a rather unsatisfactory piece of legislation. The amendments before us today and the guidelines that have recently been issued do little to reassure us that the Government really have got the detail of this in hand.
Regrettably, we feel that the Government are in danger of delegating far too many powers to the as yet unspecified regulator. This is an issue that we will return to in the next group of amendments. In the meantime, I look forward to hearing the Minister’s response on the points I have raised.
Lord Ashton of Hyde
My Lords, Amendment 25N in the name of the noble Lord, Lord Paddick, seeks to remove the word “sufficiently” from the appeals guidance. I will explain why we do not think that that is necessary.
The draft guidance to the regulator specifies that an appointments board engaged by the regulator must appoint an independent appeals board—independent of the regulator, government and the industries that are most likely to submit an appeal. The draft guidance explains that the members of the independent appeals board, appointed by the appointments board, should be appointed on terms and conditions that ensure their independence. Members should represent a broad spectrum of opinion and experience and be respected in their field. They should also be able to demonstrate a commitment to the standards of conduct set out in the Committee on Standards in Public Life’s The 7 Principles of Public Life. We agree that it is important that there is an independent, open, fair and transparent appeals process. Our amendment to the designation and guidance achieves this. It will deliver an appeals process that gives those affected recourse to an independent appeals panel which is not part of the regulatory body, and where the regulator has no say on who is a member and has no role in making the appeal decision.
Further parliamentary scrutiny at the time of designation will provide an opportunity to ensure that the arrangements are right. As part of the designation process, government Amendment 25Q requires the Secretary of State to lay before Parliament a statement of the reasons why she is satisfied that, for example, any person hearing an appeal will be sufficiently independent. Parliament will then have an opportunity to scrutinise this. In this case, “sufficiently independent” is an adequate description of a most robust appeals process. On that basis, I invite the noble Lord not to move his amendment.
I was somewhat taken aback by the noble Baroness’s criticism of our response to the DPRRC. We thought we had addressed—
Lord Framlingham
I hope I am right. I think Amendment 25N is in the next group.
Lord Ashton of Hyde
I am sorry, that has rather thrown me. I was saying that I was surprised by the noble Baroness. We think that we have agreed to the spirit of nearly all of the DPRRC amendments. We have not done everything to the letter but we have agreed to the spirit of its amendments. However, we have written back to the DPRRC about the classification of a regulator—which we will come to later—but that is purely because we are following other legislation.
Baroness Jones of Whitchurch
I specifically asked about the ability to impose fines and so on. That appears to be under a negative resolution in the government amendments.
Lord Ashton of Hyde
We have not designated the financial regulator. We will have to do that. I will check if it is under a negative resolution and undertake to write to the noble Baroness and talk to her about it. I cannot remember what it is, to be quite honest.
The point about the financial regulator—we will come to this in a later amendment—is that we have a disagreement about the extent to which the BBFC should carry out functions. The one thing that we are agreed on is that it should not carry out financial enforcement. We will talk later about what exactly it should and should not do. We have not yet designated who the financial enforcement regulator is—we will do that later—but we want to get the regime up and running before we decide.
The government amendments have addressed many of the points raised today and by other noble Lords during the passage of the Bill. They provide for greater parliamentary scrutiny, include affirmative procedures where there were none and provide greater clarity and direction to the regulator. The direction to the regulator will be laid before Parliament and we have invited noble Lords to contribute to that draft guidance. In all, that will give greater confidence that the measures will be in the best place possible to be successful. I beg to move.
Lord Ashton of Hyde
“(2A) The Secretary of State may make regulations specifying, for the purposes of this Part, circumstances in which material is or is not to be regarded as made available on a commercial basis.(2B) The regulations may, among other things, prescribe circumstances in which material made available free of charge is, or is not, to be regarded as made available on a commercial basis.(2C) Regulations under subsection (2A) may provide for circumstances to be treated as existing where it is reasonable to assume that they exist.”
Lord Ashton of Hyde
The Earl of Erroll
My Lords, this is an important point. Without enforcement, nothing will work. If you do not enforce age verification, no one will bother with it. For exactly the same reasons as the noble Lord, Lord Paddick, gave, I think that the notice and take-down—the blocking—is the only thing that will work. Fines will not work; it is probably a waste of time even trying them. The only thing that might work is to ask the credit card companies not to take payments for those sites, because they like to observe the law. I am concerned that the BBFC will not have resources to do this properly, but even if it goes elsewhere the BBFC should still be able to notify ISPs to block sites. That bit must certainly be enforced.
Lord Ashton of Hyde
My Lords, I am grateful to everyone who has spoken in this brief debate. The introduction of a new law requiring appropriate age verification measures for online pornography will help protect young people and children from potential harms from online pornography. It will also rightly hold commercial providers of online pornography responsible for the material they provide and profit from.
The Government of course take the protection of children and young people very seriously. To provide effective protection it is important that we have a robust regulatory system in place. These amendments seek to limit the scope of the regulatory functions that may be fulfilled by the BBFC by seeking the requirement that the same regulator must not be responsible for both identifying a non-compliant site and taking enforcement action against it. I shall first explain why, in identifying the BBFC as the preferred regulator, we think we have made the right choice.
The Government’s intention is that, subject to parliamentary approval, the BBFC will be the regulator responsible for identifying websites that do not have adequate age verification or are hosting extreme pornography, and then to give notice to the appropriate persons, be they payment service providers, ancillary service providers or ISPs. It is not intended that the BBFC will be designated as the regulator responsible for issuing financial penalties. That will be a role for a separate body, yet to be determined, but which will be approved by Parliament.
We are pleased to be working with the British Board of Film Classification as the intended age verification regulator, again subject to parliamentary approval. To respond to the remarks of the noble Baroness, Lady Jones, on structure, the BBFC is an independent, not-for-profit company that has a proven track record of interpreting and implementing legislation as the statutory authority for age rating videos under the Video Recordings Act. It has unparalleled expertise in classifying content and it is committed to delivering the aims of age verification. It is the expert on editorial judgments over pornographic and other content.
The BBFC has been classifying cinema films since it was set up in 1912 and videos and DVDs since the Video Recordings Act was passed in 1984. It continuously has to make judgments on classification, openly and transparently. These decisions relate to a multimillion-pound industry and are subject to challenge. The BBFC’s work with mobile network operators on the self-regulatory regime for mobile content is a good example of where it successfully sets content standards, implements them and adjudicates transparently and accountably.
The BBFC will not operate without oversight. It must have regard to the statutory guidance from the Secretary of State to the regulator. This will provide a further opportunity to ensure that the regulator fulfils its duties in the way Parliament sees fit. As I said earlier, we are seeking views on this guidance before a final version is laid. Ultimately, the regulator’s decision-making process will be subject to oversight by the courts as there is the possibility of challenge by way of judicial review. This prevents it acting arbitrarily.
In our view, these amendments are unnecessary for the following reasons. First, Clause 17 already enables the Government to designate a person, or any two persons or more jointly, as age verification regulators. The importance of getting this measure right means that the Government remain open-minded and retain flexibility as to how best to respond to changing circumstances. If the BBFC is proven to be unable to deliver certain regulatory functions the legislation has the flexibility to overcome these problems.
Secondly, splitting the regulatory functions in the Bill so that the same regulator cannot identify non-compliant sites and enforce against them unnecessarily creates a middleman in the process. The BBFC will have to give notice to a second regulator, which will then pass that notice on to an ISP or other appropriate body. This is just red tape for no benefit. It makes sense that the body that makes the original determination should also be responsible for notifying relevant parties affected by that determination and for ensuring that that notification action is effective in achieving compliance.
Thirdly, our ambition is to have the age verification regime in place by spring 2018. We are determined to stick to that timetable. The NSPCC has set out the scale of the problem we face and we need to get on with protecting children as quickly as we can. If we need to invent an additional regulator that can only delay the result.
Lord Ashton of Hyde
(a) all of the functions of the age-verification regulator under this Part, or(b) any of those functions specified in the notice by which the designation is made.( ) Different persons may be designated for the purposes of different functions.”
Lord Ashton of Hyde
(a) arrangements will be maintained by the age-verification regulator for appeals to which subsection (4A) applies, and(b) any person hearing an appeal under those arrangements will be sufficiently independent of the age-verification regulator.(4A) This subsection applies to appeals—”
Lord Ashton of Hyde
“(1) Where the Secretary of State proposes to make a designation under section 17, the Secretary of State must lay before both Houses of Parliament—(a) particulars of that proposed designation, and(b) a statement of the reasons why the Secretary of State is satisfied about the matters mentioned in section 17(4).”
Lord Ashton of Hyde
“( ) The Secretary of State must lay before both Houses of Parliament the guidelines, and any revised guidelines, published under this section.”
Lord Ashton of Hyde
Lord Ashton of Hyde
“Meaning of extreme pornographic material
(1) In this Part “extreme pornographic material” means (subject to subsection (3)) material—(a) whose nature is such that it is reasonable to assume that it was produced solely or principally for the purposes of sexual arousal, and(b) which is extreme.(2) For the purposes of subsection (1)(b), material is extreme if—(a) its content is as described in section 63(7) or (7A) of the Criminal Justice and Immigration Act 2008, and(b) it is grossly offensive, disgusting or otherwise of an obscene character.(3) Material to which paragraphs (a) and (b) of subsection (1) apply is not “extreme pornographic material” if it is or was included in a classified video work, unless it is material to which subsection (4) applies.(4) This subsection applies to material—(a) which has been extracted from a classified video work, and(b) whose nature is such that it is reasonable to assume that it was extracted (with or without other material) solely or principally for the purposes of sexual arousal.(5) In this section—“classified video work” means a video work in respect of which the video works authority has issued a classification certificate;“video work” means a video work within the meaning of the Video Recordings Act 1984;“the video works authority” has the meaning given in section 16 ;“classification certificate” has the same meaning as in the Video Recordings Act 1984 (see section 7 of that Act);“material” means—(a) a still image or series of still images, with or without sound; or(b) a series of visual images shown as a moving picture, with or without sound.”
Lord Ashton of Hyde
Lord Ashton of Hyde
“Guidance to be published by age-verification regulator
(1) Subject to the following provisions of this section, the age-verification regulator must publish, and revise from time to time—(a) guidance about the types of arrangements for making pornographic material available that the regulator will treat as complying with section 15(1); and(b) guidance for the purposes of section 22(1) and (6) about the circumstances in which it will treat services provided in the course of a business as enabling or facilitating the making available of pornographic material or extreme pornographic material.(2) Once the regulator has prepared a draft of guidance it proposes to publish under subsection (1)(a), it must submit the draft to the Secretary of State.(3) When draft guidance is submitted to the Secretary of State under subsection (2), the Secretary of State must lay that draft guidance before both Houses of Parliament.(4) Once the regulator has prepared a draft of guidance it proposes to publish under subsection (1)(b), it must submit the draft to the Secretary of State for approval.(5) When draft guidance is submitted to the Secretary of State under subsection (4), the Secretary of State may approve it either without modification or with such modifications as the Secretary of State decides should be made to it.(6) Once the Secretary of State has approved draft guidance under subsection (5), the Secretary of State must lay the following before both Houses of Parliament—(a) the draft guidance, incorporating any modifications the Secretary of State has decided should be made to it under that subsection, and(b) if the draft incorporates such modifications, a statement of the Secretary of State’s reasons for deciding that those modifications should be made. (7) If, within the period of 40 days beginning with the day on which draft guidance is laid before Parliament under subsection (3) or (6), either House resolves not to approve that draft guidance, the age-verification regulator must not publish guidance in the form of that draft.(8) If no such resolution is made within that period, the age-verification regulator must publish the guidance in the form of the draft laid before Parliament.(9) But subsection (11) applies, instead of subsections (7) and (8), in a case falling within subsection (10).(10) The cases falling within this subsection are—(a) the case where draft guidance is laid before Parliament under subsection (3) and no previous guidance has been published under subsection (1)(a) by the age-verification regulator; and(b) he case where draft guidance is laid before Parliament under subsection (6) and no previous guidance has been published under subsection (1)(b) by the age-verification regulator.(11) The regulator must not publish guidance in the form of the draft laid before Parliament unless the draft has been approved by a resolution of each House of Parliament.(12) Subsections (7) and (11) do not prevent new draft guidance from being laid before Parliament.(13) For the purposes of subsection (7)—(a) where draft guidance is laid before each House of Parliament on different days, the later day is to be taken as the day on which it was laid before both Houses, and(b) in reckoning any period of 40 days, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.(14) References in this section to guidance and draft guidance include references to revised guidance and draft revised guidance.”
Baroness Jones of Whitchurch
My Lords, I echo many of the concerns raised by the noble Lord, Lord Paddick. We added our name to a similar amendment in Committee and there was a broad degree of support for the principles that were expressed. The amendment returns to the essential need to protect the identity of those who are over 18 and legitimately want to access pornographic sites without having their personal details compromised in the age verification process.
The noble Earl, Lord Erroll, has been very helpful in explaining how the privacy systems would work, using a two-stage process to prove someone’s age and then giving them an encrypted token to use on adult sites. We agree with this model and would like to see it widely adopted. It assumes that age verification would be carried out by a separate age verification provider who has the specific technical skills to carry out these checks securely. However, we also agree that technology is moving on apace and that it would be a mistake to be too prescriptive. We believe that a code of practice, as set out in the amendment, would deliver the protections while allowing that to happen.
That brings us to the draft guidance on the regulator, which the Government published last week and which addresses the issue of privacy. We believe that of all the parts of the draft guidance, the section on privacy is indeed a step forward. It puts the onus on the regulator to work with the Information Commissioner’s Office to ensure that systems are in place to check a user’s privacy while having regard to the Data Protection Act. While we welcome that, we would also like it to address the need for users to have a choice of provider. Again, that is something that we debated at an earlier stage.
In addition, we have a continuing concern that the only provision for data protection breaches is for the ICO to be informed, rather than necessarily for it to act. I hope that the Minister will be able to reassure us that, if there are such breaches, they will indeed be followed up by action.
I hope that the Minister will be able to reassure us on these points. However, we feel that progress is being made on this subject. Depending on what the Minister is able to say in response, it may well be that we will ask the noble Lord, Lord Paddick, not to press the issue at this time.
Lord Ashton of Hyde
My Lords, I thank the noble Lord, Lord Paddick, and the noble Baroness, Lady Jones, and I thank the noble Earl, Lord Erroll, for his expertise in this area—age verification, I am talking about.
I have some sympathy with the noble Lord and the noble Baroness on this because we, too, have absolute desire for anonymity in these matters. So the Government have sympathy for the intention behind the amendments, but we feel that they go too far and that this amendment is therefore unnecessary. We have already made provisions to cover these concerns under government Amendment 25YQ, which provides that the Secretary of State may issue guidance to the regulator. I assure noble Lords that we approach this issue with the utmost seriousness. We have set out the draft guidance, which noble Lords have mentioned. It is of course draft guidance and, as we say at the beginning of it, we welcome comments—so perhaps some of the comments from today’s debate can be incorporated.
A person making pornographic material available on a commercial basis to persons in the United Kingdom must have an effective process in place to verify that a user is over 18. This age verification already takes place online, from the gambling industry to mobile phone content to purchasing age-protected goods. There are various ways to age-verify online, as the noble Earl explained, and, as the industry is developing rapidly, it is expected that new age verification technologies will develop over time.
Providers are innovating and providing choice to customers. We agree that the process of age verifying for adults should rightly be focused on the need to establish that the user is aged 18 or above, rather than seeking to identify the user. As I have said, age verification controls are already in place without the approval of the age verification providers. For example, licensed gambling sites are required to have age verification controls that are not subject to pre-approval by the regulator but must take account of data protection laws.
We recognise that pornography provides a unique challenge in this space, which is why we are ensuring that the measures in place are stronger than currently exist. As such, the draft guidance to the regulator—I am pleased that in this area at least the noble Baroness, Lady Jones, gave her qualified approval—sets out the detail of how this should be done. Rather than setting out a closed list of age verification arrangements, the regulator’s guidance should specify how it will assess in any given case that the requirements have been met.
The draft guidance, which was published last week, is clear that the process of age verifying for adults should be concerned only with the need to establish that the user is aged 18 or above, rather than seeking to identify the user. The privacy of adult users of pornographic sites must be maintained. We do not want the regulator to duplicate the role of the Information Commissioner’s Office, the UK’s independent body set up to uphold information rights. The draft guidance states:
“The process of age verifying for adults should be concerned only with the need to establish that the user is aged 18 or above, rather than seeking to identify the user. The privacy of adult users of pornographic sites should be maintained and the potential for fraud or misuse of personal data should be safeguarded … The role of the Regulator should be to focus on the ability of arrangements to verify whether someone is over 18 and should be assured that age verification arrangements will protect a user’s privacy”.
That is pretty clear, I think.
As also set out in our draft guidance, the age verification regulator should work with the ICO. The regulator should be clear in its guidance on the requirements that age verification services and online pornography providers will have regard to under data protection legislation and, furthermore, that a privacy-by-design approach should be taken, as recommended by the ICO.
It is right that we do not seek here to duplicate the existing legislative and regulatory framework, but we must ensure that they are built into the age verification process in a meaningful way. We have always been clear that adults should be able to access legal pornographic content and individuals should rightly be protected from unintended consequences when doing so. As I said, we have produced a draft of the Secretary of State’s guidance and are certainly happy to have further discussions ahead of the final version being laid.
Baroness Thornton (Lab)
Could I invite the Minister to be slightly less gentle with those supporting this amendment by saying not that it goes too far but that it is a wrecking amendment? It would drive a coach and horses through this legislation.
Lord Ashton of Hyde
I had not thought of that. I am absolutely sure that that was not the intention. However, in the meantime, I would like the noble Lord to withdraw his amendment.
Lord Paddick
My Lords, I thank in particular the noble Earl, Lord Erroll, for his support on this amendment and acknowledge the work that he is doing in this field. The noble Baroness, Lady Jones of Whitchurch, said she echoed many of our concerns—and in Committee, Labour Peers added their names to the amendment. It proposes a code of practice, the content of which would be specified in the Bill, but it would provide flexibility, in that it sets out only the minimum requirements of such a code.
The Minister said that the Information Commissioner’s Office is responsible for data protection, but the Information Commissioner’s Office is designed to ensure that people who voluntarily put their personal information into the internet are protected—and this is not a voluntary process. This is making it compulsory for anybody who wants to access adult material to give their personal data, which they would not otherwise have to do. We therefore think that the protections should be greater than those provided by the Information Commissioner’s Office.
As the Minister himself said, privacy is more important when it comes to accessing pornography than it is when accessing, for example, gambling sites. We are not reassured. The draft guidance that the Government have issued is only guidance that a regulator should have regard to; it does not have teeth at all. We therefore find both the draft guidance and the explanation given by the Minister inadequate for protecting the identities of those who seek age verification. I therefore wish to test the opinion of the House.
Lord Alton of Liverpool
My Lords, I support the amendment proposed by the noble Baronesses, Lady Jones and Lady Janke, but also the remarks of my noble friend Lady Howe. I want to ask the Minister, when he comes to reply, about an issue that I raised in your Lordships’ House previously, and that is the issue of suicide sites on the internet. It concerns me that young people can be encouraged to visit those sites and take their own lives. Only a year ago I attended a school prize giving in a north-west school, and the headmaster told me when I arrived how a child in that school had taken their own life only the day before. As noble Lords can imagine, that was a terrible tragedy not only for the family but for the whole school, and it rather changed the atmosphere on that occasion. That child had been visiting one of the suicide sites on the internet, and the headmaster discovered that several other children had been doing the same.
It can be revenge porn or the kind of trolling to which the noble Baroness referred, the harassment of young women in particular, or the whipping up of xenophobia, racism or anti-Semitism, but it is right that there should be a code of practice, and we should get on with it. I hope that the Minister will tell us more about the Green Paper, what the framework will be for it and when we are going to start to look at these issues seriously.
Lord Ashton of Hyde
My Lords, I am grateful to all contributors on this important subject. We take the harm caused by online abuse and harassment very seriously. The measures that we have introduced in this Bill show that the Government are taking this seriously. I hope that I can offer some comfort in this area since we last discussed these two amendments in Committee.
Amendment 25YR seeks to require Ministers to issue a mandatory code of practice to ensure that commercial social media platform providers show a duty of care to ensure the safety of a child or young person using their service; to report and remove illegal posts on social media; prohibit and remove cyberbullying; and to undertake to work with the education profession and charities to provide children with digital safety skills. Amendment 33A seeks to impose a duty on “social media services” to respond to reports posted on their site of material which passes the “criminal test”, being that the content would, if published by other means or communicated in person, cause a criminal offence to be committed. I have two responses to these amendments—first, an explanation of the work that this Government have started to address these issues through our internet safety strategy; and, secondly, some fundamental concerns about their drafting.
The UK is leading the way in online safety, and will continue to do so, with the support of industry, parents, charities, academics, and other experts, and this is a firm priority for this Government. We have been absolutely clear that abusive and threatening behaviour is totally unacceptable in any form, online or offline. On 27 February, my department announced that it is leading cross-government work on an internet safety strategy which aims to make the UK the safest place in the world to go online for children and young people. This work will also address the abuse that women suffer online, as we look at trolling and other aggressive behaviour, including rape threats. We will ask experts, social media companies, tech firms, charities and young people themselves about online safety during a series of round tables later this month, and we will use these discussions to understand more about the scope of the problem and identify where there are gaps in our current approach to tackling online harms.
We will continue to consult closely with interested parties throughout the spring, including Members of this House with expertise in this area. Indeed, we have already invited several noble Lords to take part. A key part of this work will be to clearly set out the responsibilities of social media in respect of online safety as part of a Green Paper which will be published in June. Other priorities will include: how to help young people to avoid risks online; helping parents to face up to the dangers and discuss them with their children; and how technology can help provide solutions.
We have not ruled anything out at this stage, including a code of practice, but this is a complex field and to find the right solution we need to take the time to have a proper conversation with all the leading stakeholders. We would not want anything to prejudge the outcome of these discussions. We believe that this will result in a properly considered, comprehensive approach to online safety which stakeholders are fully signed up to, and one that will deliver the long-lasting protections that these amendments are seeking to secure.