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 that they should 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.
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Secondly, there is no explanation of how this new plan does not undermine the age verification regime, which is at the heart of this whole part of the Bill. We started in the Bill with 18 and R18 being acceptable behind age verification checks. Now we are saying that it is okay for a website to supply all of this material if it is behind age verification. How do we explain that to our children? I suggested in Committee that the one scenario I could foresee was to place prohibited material behind age verification checks. I warned that we should not fall into the trap of thinking that age verification makes children safe across the board and that therefore adults can access what they like without concern. I quoted at length evidence that the Government and BBFC have been very clear that enforcement will be targeted at the bigger sites. I will not repeat those statements, but I remind noble Lords that the Explanatory Notes say that Clause 24 gives the age verification regulator discretion to,
“exercise its functions in a targeted way, to those providers of pornography who reach the most people or have large turnovers”.
We have no reassurance that age verification will be implemented across the board. I am not saying that children will not be safer. I think they will—that is something I commend the Government for—but they will not be completely safe. Indeed, I hope that the noble Baroness, Lady Jones, will not mind me quoting her. She said in Committee:
“I do not think that anyone considers that what is being proposed in the Bill is going to be 100% deliverable or enforceable. We are on a journey and, if we can attack 50% or 75%, we are making progress in this area. It is inevitable that we will have to revisit the whole issue in the future, so we are taking steps towards what I hope will be a fully robust system ”.—[Official Report, 2/2/17; col. 1350.]
The point is we know that it will not be fully robust, but the Government seem happy to bring forward proposals that they previously stated, presumably on good advice, would undermine age verification. I very much look forward to hearing what they have to say on this point.
In closing, I make it clear that I appreciate that, even with the proposed amendments, internet regulation will be moved forward by the Bill and the extension of blocking to extreme pornography. It is indeed better than the current scenario, but there is nothing in place to prevent the supply of such damaging material.
However, that it is “better than nothing” is not an adequate argument for adopting a definition that is inconsistent with other legislation regulating pornography and makes certain violent material acceptable.
I urge noble Lords to join me in calling for the retention of equivalent protections on the internet as are in place for the distribution of pornography offline by rejecting these amendments. I shall be pleased to vote for the excellent “review and rethink” amendment, Amendment 25YD, in the name of the noble and learned Baroness, Lady Butler-Sloss.