Digital Economy Bill

Lord Elton Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Lords Chamber

Lastly, this amendment is widely drawn, and so— I am sorry—not perfect. It would be an enormous undertaking for Ofcom, or indeed, any regulatory body. Ofcom’s current remit in respect of public electronic communications services relates to protecting end-users in relation to the transmission of communications rather than the content of those communications, which was an issue touched on by the noble Baroness, Lady O’Neill. With that explanation I hope that the noble Lord will withdraw his amendment.

[Lord Elton (Con)]

Before my noble friend sits down, can she tell us a little more about the involvement of the Royal Society, when we might hear a result from it and whether it will be shared with this House? Can she in fact bring about a further debate in the light of its findings?

Digital Economy Bill

Lord Elton Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 20th March 2017 Lords Chamber

[The Earl of Erroll (CB)]

The noble Lord, Lord Farmer, is right about the huge dangers in viewing much of this pornography online but I do not think this Bill is the right place to deal with it—that is the challenge—because we are confusing two issues. This Bill is about protecting children—that is what was originally intended—and the idea is to have age verification to stop children watching any sexually explicit material online regardless of how bad or innocent it is. If it is sexually explicit, it has got to be hidden behind age verification.

The challenge is that we have now introduced into the Bill the concept of protecting adults. However, there is other legislation that already does that. If it is not working properly, we should cure that legislation. I agree that we should bring the CPS guidelines into line with what is going on and probably review the Obscene Publications Act. The Criminal Justice and Immigration Act also deals with issues around this problem. It is covered in lots of places.

However, inserting a blanket cover in the Bill is dangerous because suddenly the BBFC will act on its own initiative to close down websites, which will then be appealed against and cause chaos to the system while the law courts are possibly doing something else. Once it is appealed to the law courts you will have a problem because two sets of measures will be fighting each other. We need to keep it consistent. Yes, we should have protection for adults, but let us do it properly and in the right place.

I support the Government on these amendments for that reason because it brings the Bill back to where we can protect children against watching anything unsuitable. The government amendments align what is in the Bill with the Visa and MasterCard standards, which helps with the enforcement measures in the Bill. They will apply internationally and this will help the ASPs—the ancillary service providers—to comply with the Bill and help to enforce measures against websites that do not have age verification in place. They will align the Bill with the Criminal Justice and Immigration Act as well, which, again, will mean that there are no other loopholes by using one Act against the other. I have already spoken about the CPS guidance.

I understand that the topical Fifty Shades of Grey—I do not know anything about it because I have never read the book nor seen the film—involves bondage, pain and S&M. Should that book be allowed or should it have been banned? Should the film have been allowed for general release or not? It is those kinds of issues that cause confusion and we need to realise that.

The Bill does not legitimise what is behind the age verification. That is for other Bills to do. This Bill seeks to make sure that children cannot get at anything that is sexualised. Let us not cause confusion. Let us stick to one thing in one place and one thing in another place. I support the Government on this.

[Lord Elton (Con)]

My Lords, I cannot support the noble Earl. I follow most of his argument, but when we are considering legislation in one area we have to take into account its effect in other areas. What we have here is a proposal to narrow a definition of maximum control and to place anything that is not within that narrow definition in an area of less control where a larger population is affected by it.

I do not apologise for coming to this very late because Her Majesty’s Government are doing the same. In 1985 I was in the unfortunate position of taking through this House the Bill to abolish the GLC. After it had gone through the Commons and just before the Report stage here, the then Leader of the House, Willie Whitelaw, said, “My friends down the Corridor want me to abolish the Inner London Education Authority as well”. Noble Lords can see what political dynamite that was. To bring forward proposals at the second stage in the second House without wide consultation with those concerned seems to me pretty late in the day, so we are right to look at this closely.

I view it in a simple way. Powerful arguments have been put by the noble and learned Baroness and others in favour of her amendment, which I warmly support. The central issue is a simple one. If you take the least harmful of a bunch of very harmful material out of control, you may make the control of the remainder more effective but you also release more harmful material to less strict control. That must be wrong. Other noble Lords have spoken much more academically and legalistically than I am able to do. I merely wish to say that I have listened with my heart and my head and I stand entirely behind the noble and learned Baroness’s amendment.

[Lord Browne of Belmont (DUP)]

My Lords, I support Amendment 25YD. In Committee I set out in detail all the reasons why I thought that the Government should not do what they have done in this series of amendments. They will remove “prohibited material” and replace it with “extreme pornographic material” and put the remainder of the prohibited material category behind age verification. I concluded my speech by saying:

“The Bill takes significant strides in the cause of child protection. It would be a shame if we in this House took steps to undermine this”.—[Official Report, 2/2/17; col. 1359.]


I start my speech today with the same sentiment and by quoting the Minister whose comments at Second Reading agreed with the sentiment that I set out in Committee:

“It is a complicated area. Free speech is vital but we must protect children from harm online as well as offline. We must do more to ensure that children cannot easily access sexual content which will distress them or harm their development, as has been mentioned. We do not allow children to buy pornographic material offline, and this material would not be classified for hard-copy distribution. The BBFC has a well-understood harm test and would not classify material that, for example, depicts non-consensual violent abuse against women, and it may not classify material which is in breach of the Obscene Publications Act, as clarified in guidance by the CPS. Prohibited material has always been within the regulatory framework of this Bill. We consider that having a lesser regime for prohibited material than lawful material would be unsustainable and undermine the age-verification regime”.—[Official Report, 13/12/16; cols. 1228-29.]


I want to repeat that final sentence:

“We consider that having a lesser regime for prohibited material than lawful material would be unsustainable and undermine the age-verification regime”.


The general public agree with that principle. ComRes polling from last weekend and published today shows that 82% of the public think that the online standards for regulating internet pornography should either be the same as those for offline or be stronger. Yet contrary to public opinion, the Government have turned on their head and performed a major U-turn on the basis of mumblings about the Obscene Publications Act.

First, the Government are trying to convince us with an amendment to Clause 27, government Amendment 25YV, that this situation will be sustainable. Just last week the noble Baroness, Lady Shields, said in answer to a question from the noble Lord, Lord Elton:

“I should say to my noble friend that we are clear that what is illegal offline is also illegal online. Legislation is in place to deal with internet trolls, cyberstalking, harassment, revenge porn and the perpetrators of grossly offensive, obscene or menacing behaviour”.—[Official Report, 15/3/17; col. 1861.]


But she did not add, “From next week, when we pass amendments on Report, not for pornography”. We are bringing in different rules about what can be supplied online and offline. If you are a retailer of DVDs you cannot sell an unclassified work. If you are a UK-based video-on-demand service you cannot have a programme service that includes prohibitive material. But if you are a website you can supply all of this material to the UK as long as it is behind age verification, unless it is extreme pornographic material. I cannot see how this position can be sustainable. Therefore, in the longer term we are changing the rules about how we approve or supply this material. I argued in Committee that such sweeping changes to long-standing arrangements should be made only with a full and public consultation. We have not had that. It has been slipped in at the end of the Bill’s parliamentary scrutiny.