Digital Economy Bill

Lord Clement-Jones Excerpts

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

[Lord Morrow (DUP)]

My Lords, when I spoke at Second Reading on 13 December, I addressed the enforcement provision in Part 3, and want to do so again today. I warmly welcomed Clause 23, as have other noble Lords, which the Government introduced on Report in another place, and I continue to do so.

Clause 23 is a robust provision and I believe that it would be far more effective than the proposal in Amendment 66, tabled by the noble Lords, Lord Paddick and Lord Clement-Jones, which would replace Clause 23 with one entitled “Court orders”. The truth is, as I shall explain when speaking to amendments in the next group, that there are real problems with the enforcement mechanisms provided by Clauses 21 and 22 of the Bill, especially in relation to websites based outside the United Kingdom. This has always been a special concern, because the vast majority of online pornography accessed from within the UK is accessed from sites based in other jurisdictions.

The failure of Clauses 21 and 22 to provide credible enforcement mechanisms for the age verification requirement in Part 3 was highlighted very effectively in another place by parliamentarians from across the political spectrum. The critical thing about Clause 23 is that it gives the age verification regulator the power to enforce the age verification check provision without delay. The knowledge that, regardless of where in the world the site is based, it can be blocked by the UK age verification regulator will give those sites a strong incentive to introduce robust age verification. Amendment 66, by contrast, would place this in great jeopardy.

I want to raise three major problems with Amendment 66. First, it causes delay in the sense that, if it were to become law, we would then have to wait for the Secretary of State to introduce regulations, without which the age verification regulator would have no power to initiate IP blocking. Secondly, Amendment 66 makes the provision of these regulations, and thus the provision of IP blocking, entirely optional. If the Secretary of State does not get round to producing the regulations, there will be no IP blocking at all. Thirdly, in depending on a court injunction process, this amendment apparently prefers a very much slower, more expensive and more cumbersome mechanism, which websites will know cannot be used very often. This will give them hope that they can carry on without age verification checks because the chances of their being caught will be much less. Of course, the existence of the current Clause 23 powers does not mean that those powers will be used frequently, but the fact that websites will know that they could be deployed quickly and easily will make them much more wary about taking such risks, and will therefore keep children that much safer.

In setting out these objections, I make two other points. First, I understand the argument that there is a copyright precedent for the use of court injunctions, but the idea that we should therefore necessarily follow it is not remotely compelling. There was once a time when injunctions were not used in relation to copyright, but—rather than saying that there is no precedent to act and therefore we should not act—the decision was made that we should act and, in the case of copyright infringement, the use of injunctions was appropriate. Today, though, we are not dealing with copyright infringement; we are dealing with something quite different, which has a concern for child protection at its core. In this context, the mechanism set out by the Government in Clause 23 is more effective and much more appropriate. Secondly, if Amendment 66 is based narrowly on a civil liberties concern, I would have to say that, quite apart from the fact that this concern has to be balanced with a concern for child protection—which, in my view, Amendment 66 does not manage to achieve—it is important not to lose sight of the fact that any decision on the age verification regulation could be judicially reviewed.

When faced with a relatively robust provision of an enforcement mechanism for age verification that would help keep children safe, Amendment 66 with its delays and optional, rather than mandatory, standing cannot but be seen as an attempt to weaken the child protection provisions in the Bill, which I find deeply disturbing. Part 3 of this Bill entered your Lordships’ House as a robust and progressive measure placing us at the cutting edge of child protection online. If we were to replace Clause 23 with Amendment 66, it would leave us much weaker and—in the sense that websites would know that they could risk never being held to account for not having age verification checks—fatally compromised. I believe that this is misjudged, misconceived and mistimed. I very much hope that the Minister will stand by Clause 23 and oppose Amendment 66.

[Lord Clement-Jones (LD)]

My Lords, I am absolutely delighted that we have had the views of the noble Lord, Lord Morrow, about my amendment before I had a chance to speak to it, but maybe that’s life—he has given me the benefit of his views before I have set my own on record. I thought that the noble Baroness, Lady Jones, set out extremely well the frustrations of those of us who, in the words of my noble friend Lord Storey, are very keen to make sure we get the right shape for this part of the Bill. There is absolutely no difference between us, in that we wish to see Part 3 be as effective as possible in preventing access to child pornography. We have been debating for only an hour and it is quite clear that this part of the Bill is worryingly embryonic.

[Lord Maxton (Lab)]

My Lords, just for the sake of clarity, the noble Lord used the term “child pornography”, which is not the purpose of the verification. Verification is to stop children accessing pornography—let us get that absolutely right and on the record.

[Lord Clement-Jones]

I am grateful to the noble Lord, Lord Maxton, for that intervention. He is entirely correct—I misspoke. We are also grateful to the noble Baroness, Lady Jones, for highlighting that the Constitution Committee and the Delegated Powers and Regulatory Reform Committee both pointed out considerable flaws in the way this part of the Bill is constructed.

In particular, I want to speak about the lack of appeal mechanisms. The Delegated Powers and Regulatory Reform Committee said:

“We consider it inappropriate for the important question of appeals to be left to ‘arrangements’ made by the regulator, subject only to the approval of the Secretary of State, without any type of Parliamentary scrutiny”.


The committee was not the only one that made such comments. Interestingly enough, even the UN Special Rapporteur has commented on this:

“Moreover, I express concern at the lack of judicial oversight with respect to the power of the age-verification regulator to shut down websites that do not comply with the age-verification requirement. Any legislation restricting the right to freedom of expression and the right to privacy, as well as any determination on the shut down of websites must be undertaken by a body which is independent of any political, commercial or unwarranted influence in a manner that is neither arbitrary nor discriminatory”.


That is fairly powerful testimony.

There are a number of different ways of achieving an appeals mechanism. The first mechanism, to which the noble Lord, Lord Morrow, takes such considerable exception, is to have a judicial process at the beginning, before any website blocking can take place. The other is to allow an appeal after a website has been blocked. With regard to the appeal afterwards, at the time the amendment was drafted it was thought that the BBFC would be the age verification regulator, and we very much welcomed its involvement. However, it has now become clear—perhaps “clear” is not the adjective I should use; rather, it appears to be emerging—that the BBFC will not be the only regulator involved in Part 3.

When Amendments 69 and 229B were drafted we tried to make the new form of appeal very similar to the kinds of appeal mechanism that the BBFC uses for the purposes of the Video Recordings Act. In fact, most of the rubric in Amendment 229B comes from the part of the BBFC website that demonstrates the system of appeals on certification and so on. That seemed a sensible and reasonable way of proceeding, on the basis that the BBFC would be the age verification regulator for the purposes of Clause 23. One may wish to adopt a different form of appeal if that is not the case.

The second approach, which the noble Lord, Lord Morrow, objects to so strongly, is set out in Amendment 66. That is obviously a mechanism designed to make sure that before the very serious step of website blocking is taken, a certain procedure is gone through, ensuring that it is a last resort, and that there is proper oversight of the way in which the age verification regulator has conducted itself. That, too, seems an entirely reasonable approach.

What we are all looking for is an indication from the Government that they accept the need for this kind of appeal mechanism, whatever it may be, and that we will be able to have a look at it on Report. I should point out that we finish our fourth day in Committee next Wednesday, after which we break up for half term, and then come almost straight back to Report stage. There is very little time for much debate and discussion about these matters. This is one of the real issues, so I hope the Minister will ensure that the discussions start immediately and that, as the noble Baroness, Lady Jones, asked, the Government will respond quickly to the report of the Delegated Powers and Regulatory Reform Committee, and to the Constitution Committee’s report. Otherwise we will all remain in the dark until the Minister decides to enlighten us on 22 February.