My Lords, I spoke on the subject of prohibited material in Committee and I rise to do so again. In Committee, I raised concerns that if the Digital Economy Bill was amended so that prohibited material could be supplied if placed behind age-verification checks, children were still likely
to see this material because the Government have made clear that they are expecting a “proportionate enforcement” targeting the biggest pornography sites—likely to be the top 50 to start with—so we are not creating a world in which children are safe from accessing prohibited material. They will be safer, yes, but not completely safe.
That is the sad effect of government amendments to Clause 16. If they are accepted, it will become acceptable for a website to supply any material so long as it is behind age verification, unless it falls within the very narrow definition of extreme pornography. By doing so, we are giving violent and abusive material a large boost of respectability, as we do not allow supply of the same material via DVDs or UK-based video on demand.
In this context, the fact that the legislation defining prohibited material remains in place does not make these amendments more acceptable. It simply presents a very awkward question for the Government. Why do they not want to enforce the standards set by these laws? The decision to go to the lengths of asking us to change the Bill so that most of the laws that make up prohibited material will not be enforced cannot but send the message that in some ways we regard this as acceptable. How does changing the Bill today to allow pornographic violence that allows injury to the breasts, anus and genitals so long as it is not serious, and serious injury to any other body part, do anything other than normalise violence against women? How is this consistent with the Government’s other messaging on violence against women?
The other government argument—that the CPS will still retain the discretion to prosecute—borders on the absurd. As everyone knows, the vast majority of online porn accessed in the UK comes from websites based in other jurisdictions that cannot be easily reached by our courts. That is the whole point of creating an age verification regulator with the enforcement powers in Clauses 22 and 23, which do not depend on getting errant websites in Russia into court. I am especially concerned that this material will include some images of children. The origins of this part of the Bill were, after all, to protect children. I know that the Internet Watch Foundation has a very effective role in working with internet service providers on photographs and pseudo-photographs of children. However, I am troubled because there is no agreement around the world about the ethics of animated pornographic images of children. The IWF’s role on animated images is restricted to images hosted in the UK.
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The truth is that the IWF, unlike the age verification regulator in the Bill, does not have statutory foundation or statutory powers of enforcement. Its power is based on and limited to international agreement. This works satisfactorily where there is such agreement, namely in relation to photographic images of children. It does not work, however, where there is no international agreement—in relation to computer-generated images.
In the context in which we now find ourselves, with a Bill that makes provision for a regulator with the power to prevent animated child sex abuse images being seen in the UK, courtesy of the enforcement
powers in Clauses 22 and 23, it would be manifestly wrong to strip the regulator of that power and to invest the responsibility for dealing with the challenge in a body unable to enforce our legal standards in relation to computer-generated child sex abuse material projected into the UK from websites based abroad. Without a clear enforcement mechanism, we would effectively be endorsing the availability of such content behind age verification and telling foreign websites that it is okay to supply such material into the UK. That is not the outcome I was expecting from the Bill.
I do not support the Government’s extreme pornography proposals and will certainly vote against them if there is a Division. In the unfortunate event that they pass, I will support the very important backstop amendment moved by the noble and learned Baroness, Lady Butler-Sloss, to which I have added my name. It proposes a reasonable and measured approach to the changes the Government have made at a very late stage of the Bill. The amendment requires a review of how the amended clauses that I listed at the start of my speech are working and the impact of the use of the extreme pornography category after two years, with the option of restoring the current enforcement standards, which Amendment 25W would remove, after three years. This at least gives us time for further consideration, and I hope that the House will warmly support that opportunity.