House of Lords
Thursday 2 February 2017
Prayers—read by the Lord Bishop of Norwich.
Brexit: Environmental Standards
My Lords, we already have domestic law that safeguards the environment. The great repeal Bill to be introduced in the next parliamentary Session will incorporate EU law relating to environment and biodiversity into domestic UK law. The UK is also a party to around 30 international environmental agreements and treaties in its own right. We are bound by the obligations that they contain; this will not change on exit from the EU.
My Lords, I thank the Minister for his reply. I am sure that he appreciates how much the farming policies of this country have an influence on our environment—everything from the quality of water to the state of our wildlife and our soil fertility. At the worst, can he envisage a point where we have a trade deal with the US, with all its implications for food production, and a farming scenario where we would have a countryside of prairies interspersed with feed-lots? Will the Government therefore combine their 25-year farming strategy with their 25-year environmental strategy? We have only one land area, and it would make great sense for those two to be combined.
My Lords, the noble Baroness is absolutely right that agriculture plays a crucial role in our environmental policy: 70% of our land is farmed, so it is very important. That is why the two forthcoming Green Papers for consultation, to which we look forward to many responses, are about enhancing and handing over a better environment than the one we have inherited, including a vibrant agricultural system. As I have said before to your Lordships, I believe that both are compatible.
My Lords, I want to push the noble Lord on the Question that was just asked. Will he guarantee to the House that any future trade deal with the United States will be based on our existing high environmental standards, which will not be sacrificed in some sort of grubby trade deal further down the line? This is really important to the House, and we have debated it many times.
My Lords, obviously I am not privy to what will be in the forthcoming negotiations, but what we have said and will continue to say is that we are not prepared to see a diminution of our environmental standards. We are subject to obligations and treaties, and we wish to hand over a better environment than the one we have inherited.
My Lords, I am taken with what my noble friend has said. Clearly, this provides an opportunity for a boost in domestic horticultural trade. I am very keen, for instance, on Grown in Britain, in terms of our trees. We have, unfortunately, imported many pests and diseases over the years, so I think that this provides us with a great opportunity, and I would encourage domestic tree production.
My Lords, we are all reassured that EU environmental legislation is going to be enshrined within UK law, but we will probably be coming out of the single market and entering into a series of trade negotiations with, for example, the United States. Trade negotiations are just that: we will have to make compromises. Will the Minister assure the House that we will not be producing our food to lower standards or consuming food that has been produced more cheaply by undercutting our industry—for example, chicken washed in chlorine and beef reared on growth hormones?
My Lords, as I said before, it is important to note that this country has had a very long history of being in advance even of EU law. In fact, our Wildlife and Countryside Act 1981 was enacted a decade before the EU habitats directive. The whole direction of travel in this country has been to lead on these matters. We will be working hard in my department to ensure that there is no diminution in standards. We wish to encourage our farmers to produce the best food possible because brand Britain is about high animal welfare standards and high environmental standards.
My Lords, will the Minister confirm that more than 1,100 individual pieces of European Union legislation affect Defra directly, so they are of enormous importance to the future of our agriculture and environment? It is clear that not all of this can be immediately transferred under the great Bill which we are promised by Ministers, but can the noble Lord guarantee that there will be no diminution or reduction in environmental and agricultural standards, to safeguard the environment in this country?
My Lords, I want to be absolutely categoric that the whole direction of travel on this is to enhance our environment. All that we are seeking to do, in our negotiations and considerations on the future, is about the brand of Britain as one of high animal welfare standards in the production of livestock and environmental protections. We have a very long and positive history on this.
My Lords, we have not yet heard from the Cross Benches, so we shall hear from them.
As I say, because of the construction of our environmental protections which are part through domestic law and part through our EU law requirements, all of it is coming back so that it will be exactly the same continuum of laws relating to environmental protection. That is the whole point of the great repeal Bill, so there is certainty for the consumer, the producer and business.
My Lords, the Minister referred to an upcoming consultation on the 25-year environment plan. Some matters that are not open for consultation are matters of principle. One of the principles in Europe has been that environmental protection has been maintained by the precautionary principle. Will the Minister guarantee that this Government will uphold the precautionary principle?
Iran: Nazanin Zaghari-Ratcliffe
My Lords, the Government were very disappointed to hear the outcome of Mrs Zaghari-Ratcliffe’s appeal on 22 January. We continue to raise our strong concerns at the highest levels in both London and Tehran over the treatment and welfare of all British-Iranian dual nationals imprisoned in Iran. FCO officials are in regular contact with Mrs Zaghari-Ratcliffe’s family and we continue to do everything we can for the family.
My Lords, I thank the noble Baroness. Unlike Mr Trump, we seek improved relations with Iran, but here we have a young mother, a British-Iranian citizen, imprisoned after visiting her family there with her daughter—her daughter is solely a British citizen. Surely the time has come for the UK to call for Mrs Zaghari-Ratcliffe’s release before she, her little daughter and her husband—who is here today with his own mother—suffer further.
My Lords, the suffering of the family can barely be imagined and throughout all this, regardless of some of the extraordinary claims made on the internet, we should remember that this is a loving father who simply wants his family to be reunited. I wholly respect that, which is why we are urgently seeking information on what further legal avenues are available to Mrs Zaghari-Ratcliffe. We undertake that the FCO will continue to offer support to the family, both here in London and in Tehran. We are working towards the positive resolution of this, because that is the right thing for us all to do.
My Lords, I first draw the House’s attention to my entry in the Register of Lords’ Interests, as chairman of the British-Iranian Chamber of Commerce and as the Government’s trade envoy to Iran. Is the Minister aware that I have raised this issue with the Iranian Government? I associate myself wholly with the Question that has been asked. Has the Minister noticed the statement by the President of Iran, the moderate President Rouhani, who has said that if Iran is to attract more investment and commercial engagement with the wider world, it needs to make people who visit Iran both welcome and safe? Is it not the case that this treatment of Nazanin not only is a tragedy for her but is harming prospects for investment and the future of the Iranian people?
My Lords, in addition to the cruel and manipulative treatment of this family by the Iranian authorities, which were responsible for more than 1,000 executions in one recent year, including women and teenagers, is the Minister aware that predatory attempts have been made to extract money from Nazanin’s husband Richard by so-called intermediaries preying on their sense of desperation? Can the Minister add to what she told us a moment ago and say when our consular officials last saw Nazanin and also tell the House what she can about the other three British citizens who are being held in Iranian jails?
My Lords, I have read newspaper reports of the appalling attempt to gain money from the family, which the noble Lord has just described, but they are newspaper reports—I personally do not have details of that. It is a fact that those who are dual nationals face significant problems if they are detained in Iran, because we do not have consular access to them. We can ask, but we cannot insist—although it does not stop us continuing to ask. As recently as this Tuesday, my honourable friend Tobias Ellwood met Mr Ratcliffe to update him on what happened when Tobias visited Tehran earlier in January. Officials met the family recently and Tobias also met the family when he was in Tehran. Those meetings will continue, because our only intent is to resolve this issue in a positive way for the family.
My Lords, I appreciated what the Minister said in the Chamber last week in the debate that we had on this subject—I raised specific questions. I understand the Government’s commitment to do all they can in the circumstances, but the Minister said last week that we were awaiting the end of the judicial process before making any demands for Mrs Zaghari-Ratcliffe’s release. Can she reassure the House that when they are satisfied that the process has been concluded, we will immediately demand her release?
My Lords, one of our problems is in having information about the process itself, and when it has been resolved within the court system—in the debate, as the noble Lord will remember, I carefully declined to call it a judicial system and referred to it as a court system. As I said earlier, we are urgently seeking information on what further legal avenues may be available to Mrs Zaghari-Ratcliffe, and we will support the family through that process. The judiciary falls under the auspices of the Supreme Leader, and its shortcomings are evident: I choose my words very carefully, to be accurate. Those standing trial on political or politically-related charges are often denied proper access to a lawyer, which results in defendants lacking a proper defence during their trial. This is an appalling situation.
My Lords, does the Minister understand the disappointment felt by those who supported the nuclear agreement and who have welcomed the improving relations between Iran and the United Kingdom? Would it not be unfortunate, to say the least, if the fact that this matter is not resolved should sully or undermine that emerging and improving relationship?
My Lords, we—I at this Dispatch Box and also colleagues in another place—have made it clear that we stand ready to facilitate the return of Gabriella to this country. She is indeed solely a British citizen, and we stand ready to assist if the family asks us to do so.
Brexit: Article 50
My Lords, the Prime Minister has set out the timetable for triggering Article 50 by 31 March, and we remain committed to that timetable.
My Lords, I realise that a much more interesting Question I could have asked would have been, “Where is it all going to end?”—but the Minister would have found that rather difficult to answer. May I instead ask him this question: given that the British people have voted to come out of the European Union, and that the elected House of Commons has voted to begin the process, is there very much left for this House to do, other than to give safe passage to the Bill when it comes before us?
Actually, I think there is a considerable amount for this House to do, so I beg to differ. I am very grateful for what this House continues to do and has already done, both on the Floor of the House and in the considerable work that has been undertaken by your Lordships’ committees, on subjects ranging from acquired rights to fisheries and financial services, which has in a short time made a considerable contribution not just to the debate but to thinking in government. I applaud the work that has been undertaken; long may it continue.
My Lords, the Government will have 24 months from the notification of departure under Article 50 in which they will have to negotiate that departure. They claim that simultaneously, in the same 24 months, they will secure, in their words, a comprehensive free trade agreement with the European Union. Is it not clear that these tasks are not achievable simultaneously in that short time, and that the claim of securing a comprehensive free trade agreement is a complete fiction?
I know that the noble Lord has a considerable amount of experience of the European Union. I would just gently point out to him two things. The first is, obviously, what the Article 50 process itself refers to, which is the means by which a nation that is leaving the EU will be negotiating the exit deal with reference to the new framework. That is clear in Clause 2 of Article 50. The second point, which I made last week at this Dispatch Box, is that, unlike other nations, we wish to enter a new partnership that reflects the fact that we have been a member of the EU, and remain a member of the EU, and as such our regulations and our laws are deeply embedded in our way of life. Therefore, whereas with other treaties being negotiated with the EU by non-EU countries, people are wishing to bring down barriers, we are wishing to ensure that barriers do not go up. That is why I think we should be entering into this in a different spirit from those other negotiations.
I also draw your Lordships’ attention to what Karel de Gucht, the European Union’s former Trade Commissioner, said recently. Essentially, he said that it does not take as long as five, six or seven years, as some are suggesting, and it could, technically, take a much shorter time.
My Lords, given that the Secretary of State for Exiting the European Union said on Tuesday, in moving the Bill, that the central question on Brexit and Article 50 is,
“do we trust the people”,—[Official Report, Commons, 31/1/17; col. 818.]
and Liberal Democrats very much agree that that is the central question, can the Minister explain the Government’s refusal to trust the people with the final say on the Brexit deal in a referendum?
I am sorry but we come up against this immoveable object, which is the fact that the referendum took place, the people have decided that we wish to leave the European Union, and that is what we intend to do to honour the commitment in our manifesto. I hope only that the noble Baroness agrees with what her noble friend Lord Ashdown said so wisely on the night of the referendum: that when the British people have spoken, our task is to obey. It is only a pity that the noble Lord, Lord Ashdown, cannot agree with what he said then as opposed to now.
On a recent visit to Berlin, a puzzled and upset very senior German politician asked me, “Can I ask you a psychological question?”, and I replied, “Please do”. The question was, “Why are the English Europhobes so childish?”. I undertook to give him a reply as quickly as possible. Could the Minister help me with an answer to that question?
My Lords, I speak here on behalf of Her Majesty’s Government and therefore reflect the views of the Government. I believe that the approach that my right honourable friend the Prime Minister set out in her speech at Lancaster House was far from childish. It is a very mature approach to the challenge that lies before us, and that is what we will now embark upon.
My Lords, did my noble friend notice that 500 MPs voted to begin the process of our exit from the European Union, of whom 346 had supported and campaigned for remain, putting the supremacy of the democratic mandate ahead of their personal views. Are they not an example to us all?
As my right honourable friend the Secretary of State has made clear, and I have repeated many times, it would be completely unacceptable for the European Parliament to get more information than this House and the other place. That is an intention and a commitment that we absolutely intend to hold to.
Regarding parliamentary scrutiny, will the Minister confirm—it would be difficult not to, given what is on the Order Paper—that today alone there are two Oral Questions, one Statement and one debate on the European Union? Just to reassure anyone who may feel that there is insufficient parliamentary scrutiny, will he put in the Library a list of all the Questions he has had to answer and all the Statements to which he has responded on this subject since 23 June? Perhaps we can at least then all agree that that is a pretty good record.
My Lords, did the Article 50 negotiation timetable take sufficient account of the fact that it will include two sets of continental summers, and perhaps even one for the Minister? Also, what will be the effect on the timetable of national elections during this two-year period?
My Lords, a number of national elections will take place during this period, not just in France and Germany. We have set out our negotiating position and we will set forth to achieve our aims in those negotiations. Obviously, the political situations in various European countries may change but our negotiating positions are as set out.
To ask Her Majesty’s Government what assessment they have made of the comparative advantages, disadvantages and costs to the United Kingdom economy of (1) free trade agreements, (2) membership of the European Union Single Market, and (3) participation in the European Union Customs Union.
My Lords, we want the UK to have the greatest possible barrier-free trade with the European Union, delivered through a bold and ambitious free trade agreement. We continue to undertake a wide range of macroeconomic and sectoral analyses although, as agreed by Parliament, we will not publish anything that might harm our negotiating position.
While I am grateful to my noble friend for his Answer, will he address the Question and the information that I seek in it? The Government are asking this House and the other place to take an awful lot on trust. Given that our main exports are in services, how confident is he that we will reach agreement on financial services, for example, within two years of our having left the European Union?
On the first point, I have little further to add. The Government have clearly said—I answered on it a moment ago—that, as the negotiations continue, we will continue to provide to this House and the other place what information we can without undermining our negotiating position. That is not only the right thing to do, but the right thing if we are to build the national consensus that I said at the start we wished to build as we go forward. On my noble friend’s point about financial services, which is a very valid one, I would like to think that we are moving into a slightly new era as regards the understanding of the challenges and issues we face. There is a greater understanding of the mutual benefit that will be achieved if we come to an understanding with our European partners on financial services—not only to avoid a cliff edge in these negotiations, but to ensure that European companies and European Governments continue to have access to the global capital markets and the wonderful services provided in the City.
My Lords, the Government will be very aware that in the Korn Ferry survey of FTSE 100 chairmen, 88% are convinced that, as it has been decided to leave the single market and the customs union, no trade agreement could possibly provide the current level of access. Does the Minister accept that consensus is now growing that, under the best terms we can get, we will see a drop in exports to the EU of something like 22%—nearly a quarter—and that no deal with the United States, no matter how favourable, could do more than claw back a very small portion of that loss?
I hope the noble Baroness will forgive me, but she is approaching this from a somewhat pessimistic point of view. I approach it from a more optimistic and ambitious point of view. I believe that the United Kingdom has a very strong economic record on which we can build. I believe that we already have fantastic networks, right across the world, on which we can also build. Therefore, while I understand the challenges that lie ahead, I believe that when we put our mind to it and approach it in the way that my right honourable friend the Prime Minister has set out, there is no reason to take the somewhat pessimistic approach that the noble Baroness has outlined.
My Lords, what do the Government think of the latest Civitas research, which can find no discernible benefit from our membership of the EU single market and customs union since we joined it? Is it not also true that the EU needs our free trade very much more than we need its? Is it not also the single market that inflicts Brussels overregulation on the 90% of our economy which does not sell into it, and which has stopped us doing free trade deals with the markets of the future? Is not the single market a pretty good disaster?
There are a number of questions wrapped up in that. From what my right honourable friend the Prime Minister set out in her thoughtful speech at Lancaster House, I shall pick up one point. There are aspects of the customs union that we do not wish to be part of, which restrict our ability to strike free trade agreements with non-EU countries. However, there are aspects of the customs arrangements that exist which we wish to preserve. We wish to try to ensure that there remains frictionless trade across the EU, as far as possible.
My Lords, when it comes to assessing the single market, as suggested in this Question, has my noble friend noticed that the Visegrad four countries—and, indeed, several other east and central European countries—are in a state of considerable dissent and questioning about the structure, character and future of the single market? Are we in touch with those Governments and those countries?
My noble friend makes a very good point, as always. Yes, we are in touch with those countries. We are well aware of the issues bubbling around throughout Europe about the future of the single market. All I say is that the British people decided on 23 June to leave the European Union and therefore the course is the one that the Prime Minister has set out.
I am sorry to say that I will not start commenting on language such as “fist-fight”. It does not necessarily augur well for creating the best tone for the negotiations that lie ahead. I will say only that we are determined to protect and strengthen the competitiveness of the United Kingdom economy.
I absolutely agree with my noble friend, and I will go somewhat further. It is absolutely in our mutual interest—both that of our country and of the countries of the European Union—that we not only come to an agreement on the issues before us but do so mindful of the fact that for generations to come, just as for generations past, this country has faced similar challenges to those faced by countries right across Europe. We therefore need to be in a position to continue to co-operate and collaborate with our European partners in the years and decades ahead.
My Lords, has the Minister read the House of Lords report on EU financial services, which fears that New York may predominate in the future as the global financial services centre—including, of course, those services which will gravitate to Frankfurt and Paris?
I have seen it, and it is clear that although some thought that it was a zero-sum game between London and the capitals of Europe, that is not strictly true. However, I point to what I said at this Dispatch Box last week—that there is a growing recognition, not just in this country but in others, that London will remain a very important financial centre, no matter what happens.
Business of the House
Motion on Standing Orders
That Standing Order 40(4) (so far as it relates to Thursdays) and (5) be suspended until the end of the session so far as is necessary to enable notices and orders relating to Public Bills, Measures, Affirmative Instruments and reports from Select Committees of the House to have precedence over other notices and orders on Thursdays.
Business of the House
Motion on Standing Orders
Digital Economy Bill
Committee (2nd Day)
Relevant documents: 11th and 13th Reports from the Delegated Powers Committee
My Lords, it may be for the convenience of the House if those noble Lords who wish to leave do so before I call the next amendment.
Clause 15: Internet pornography: requirement to prevent access by persons under the age of 18
54B: Clause 15, page 18, line 25, at end insert—
“( ) the overarching duty of care of internet service providers and ancillary service providers and their responsibility to ensure that all reasonable steps are taken to ensure the safety of a child or young person involved in any activity or interaction for which that service provider is responsible.”
My Lords, we all share a common purpose in wanting the new age verification process in Part 3 to be robust, trusted and effective. It is of course vital that we put in place powers to protect children from viewing inappropriate pornographic material, and we have rehearsed the arguments as to why it is important many times before in the House. We therefore believe that there should be an overriding duty of care on internet service providers and ancillary service providers to keep children and young people safe when using these sites.
The details of how this duty should be applied need to be subject to further consultation, which is what our Amendment 54B seeks to achieve. However, more substantially, we are concerned about the scale and the scope of the regulatory functions in the Bill, which to our mind have not been thought through and were not given sufficient scrutiny in the Commons. This was not helped by the fact that substantial new clauses were added to the Bill late on in the process which considerably extend the powers of the age verification regulator. The result is that Part 3 feels very much like a work in progress, with many of the usual checks and balances unresolved.
This was identified by the Constitution Committee and the Delegated Powers and Regulatory Reform Committee which, as we know, raised a number of specific concerns that we will address in later amendments. By way of example, the Constitution Committee stated:
“We question whether the House can effectively scrutinise the Bill when its scrutiny is impeded by the absence from the face of the Bill of any detail about the operation of the proposed age-verification regime”.
We agree with that point and we have concerns about the whole regulatory structure as it is currently set out in Part 3. That is what Amendment 54D seeks to address.
The amendment in the name of the noble Baroness, Lady Howe, specifies that the regulator should be the British Board of Film Classification, and it has been widely assumed that it would take on a similar classification role for online to that which it already carries out for offline. But the new, expanded role set out in Part 3 has much more extensive powers to follow up those who fail to apply age verification filters with fines and ultimately with the blocking of their sites by internet service providers. We believe that these functions are separate and should be carried out by a separate regulator. Indeed, when we recently met the Minister, Matt Hancock, he said that Ofcom was in a better position than the BBFC to handle the financial penalties proposed.
In addition, there is a need to specify who will carry out appeals and to ensure that this is a separate, independent organisation and not one that is appointed by the regulator. This point was raised by the Delegated Powers Committee and again we have tabled separate amendments on it that will come up later. Finally, we would argue that there needs to be effective oversight and supervision of the new regime to ensure proper governance and value for money. Arguably, Ofcom rather than the Secretary of State should have a role in holding both the classification and the enforcement agencies to account, as well as reporting to Parliament from time to time on progress. But of course Ofcom cannot do everything, which is an additional reason why we believe that we need to take time to allocate the different layers of responsibilities correctly.
No doubt other noble Lords, like ourselves, have received over the past few weeks representations from many bodies providing internet service provision, payment and ancillary services. They have raised concerns about the new powers in the Bill and how they will work in practice. Indeed, one of the ISPs went as far as to say that it was so concerned that it was going to redraft the whole of Part 3—so there is a major concern about how the powers are to be allocated. This is why we believe that it is important to get this right by taking more time to consult on the role and functions of the regulator or regulators and to bring a clearer set of proposals back to both Houses. Amendment 54D would achieve this objective.
We believe that we need to take extra time to get this right. It should not be left to the Secretary of State and the eventual system for protecting children, which is something we all agree with, will be much more robust as a result. I beg to move.
My Lords, with the permission of the Committee, it may be helpful if I say a few words before other noble Lords make their contributions in order to help the rest of our debate on this part of the Bill and to put on record the Government’s position on a key issue that we will be debating today.
The BBFC is going to be given powers in the Bill to give notice to payment service providers and ancillary service providers under Clause 22 and to ISPs under Clause 23 of websites that have inadequate age verification as well as prohibited material. Many noble Lords have raised concerns with me about the scope of what amounts to “prohibited material”, so let me put on record what I have been telling those noble Lords in the many meetings we have had. The Government disagree that “prohibited material” should be excluded from the regulator’s powers. We must not unintentionally legitimise all types of pornographic content as long as age verification controls are in place. Extreme pornography can involve dangerous content. The current definition of “prohibited material” in the Bill would bring parity with the offline world—material that would not be classified by the BBFC, including material that is in breach of criminal law.
The Government’s intention is to protect children from harmful content. We have listened to the arguments that in doing so, the drafting of the Bill may have unintentionally extended the powers of the regulator too far. We all share a common goal of keeping children safe and the Government will ensure that, in achieving this aim, we have a proportionate and fair impact on others who enjoy the freedoms and equalities that are important to everyone. So I can commit that we will give this further consideration in order to reach a conclusion that this House agrees is a satisfactory way of meeting our aims of protecting children from harmful pornographic content. I will be very happy to discuss this with interested Peers before Report.
My Lords, as I said at Second Reading, I am pleased to be speaking today on a subject that I have regularly brought before your Lordships’ House over recent years in my several online safety Bills—the importance of protecting children online, which is very much today’s subject. I have tabled my probing Amendment 55 so that the Government can set out their plans for which organisations will act as the age verification regulator for which sections of this Bill, as this is crucial to ensure the child protection provisions of Part 3 are successfully implemented.
My amendment would designate the British Board of Film Classification as the age verification regulator for the whole of this process. I know that many in this House and the other place were delighted to hear the Government’s announcement that the BBFC will be the notification regulator for Part 3, a position for which it will be formally designated later this year. I am sure we can all agree that it will bring a level of expertise to that role which will be really invaluable. The use of the term “notification” regulator, however, suggests that the BBFC will provide only part of the regulatory function and that another kind of regulator will have a role to play. Indeed, this was backed up by the BBFC, which stated in its evidence to the Public Bill Committee in another place that it did not intend to have any role in enforcement under Clauses 21 and 22 on fines and informing payment providers and ancillary service providers.
This same message is repeated in the Explanatory Notes:
“The BBFC is expected to be the regulator for the majority of the functions of the regulator (including issuing notices to ISPs to prevent access to material), but is not intended to take on the role of issuing financial penalties and enforcement notices to non-compliant websites”.
This begs an important question to which the Minister must now provide an answer. Who will be the other regulator? It is one thing to have not clarified this at the point of introducing the Bill. It is, however, quite another for the Bill to have passed entirely through one House and be well on its way through another without any update.
In asking this question, I should say that I was very pleased to see that the Government have said that the BBFC will assume the enforcement role in relation to Clause 23, which was introduced on Report in another place. This, however, still leaves questions about the enforcement regulator for Clauses 21 and 22 and how the enforcement regulator in these clauses will interact with the BBFC in its role as “notification” regulator.
In its report on the Bill, the Delegated Powers and Regulatory Reform Committee criticised the lack of information about the regulator, saying:
“The decision as to who to appoint as regulator should be taken before, not after, a Bill is introduced so that it can be fully scrutinised by Parliament. This is especially because the regulator will have important and significant powers conferred by Part 3 which include the ability to impose substantial civil penalties”.
Parliament should know who the enforcement regulator will be, since it will be able to impose these substantial penalties.
Your Lordships’ House should be informed how the enforcement regulator, assuming the Government are still planning on a second regulator, will operate with the BBFC in terms of the mechanics of deciding whether to issue a fine, an enforcement notice, or notice to internet service providers to block certain sites, and how the two regulators will produce consistent guidance for this part of the Bill. Ofcom would be an obvious option for enforcement, but last November it made it clear that it does not want the role. I ask the Minister: who do the Government have in mind? When will he bring that information to the House? I look forward to hearing what he has to say.
My Lords, I apologise to the Committee for not taking part in Second Reading. Having led on the Investigatory Powers Bill and the Policing and Crime Bill I was hoping for some time off for good behaviour, but apparently a policeman’s lot is not a happy one, even when he has retired.
My noble friend Lord Clement-Jones and I have Amendment 55B in this group. The first thing to say is that we on these Benches believe everything that can be demonstrated to be effective should be done to restrict children’s access to adult material online. We also believe that everything should be done to ensure that adults can access websites that contain material that it is legal for them to view. That is why Amendment 55B would require the age-verification regulator to produce an annual report on how effective the measures in the Bill have been in general in reducing the number of children accessing adult material online and how effective each enforcement mechanism has been. We also share the concerns expressed by the noble Baronesses, Lady Jones of Whitchurch and Lady Howe of Idlicote, on these provisions having been made somewhat at the last minute, and that they may not have been completely thought through.
The aims of the Bill and the other amendments in the group are laudable. The ideal that there should be equal protection for children online as there is offline is a good one, but it is almost impossible to achieve through enforcement alone. We have to be realistic about how relatively easy it is to prevent children accessing physical material sold in geographic locations and how relatively difficult, if not impossible, it is to prevent determined children accessing online material on the internet, much of which is free. An increasing proportion of adult material is not commercially produced.
That is not to say that we should not do all we can to prevent underage access to adult material, but we must not mislead by suggesting that doing all we can to prevent access is both necessary and sufficient to prevent children accessing adult material online, the detail of which I will come to in subsequent amendments. Of course internet service providers and ancillary service providers should do all they can to protect children, but there are also issues around freedom of expression that need to be taken into account.
My Lords, in light of these and some later amendments, I want to raise the matter of ancillary service providers. My understanding is that social media platforms continue to argue that they do not fall within the definition of ancillary service providers and are seeking confirmation from government that they have no role to play in preventing children accessing pornography online.
I am aware that the Minister stated at Second Reading:
“The Government believe that services, including Twitter, can be classified by regulators as ancillary service providers where they are enabling or facilitating the making available of pornographic or prohibited material”.—[Official Report, 13/12/16; col. 1228.]
I was pleased to hear him say that, but I would like confirmation that it remains the Government’s position. Unless such platforms are included, I simply do not understand what Part 3 of the Bill hopes to achieve.
I am unconvinced that it is possible to remove all adult content from the purview of children, but it is imperative to make it clear to young people that viewing adult sexual content is a transgressive act and not a cultural norm, so, at a minimum, it should be as difficult as reaching the top shelf in a newsagent or being underage in a pub. That is imperative for reasons I set out in great detail at Second Reading, so I will not repeat them here but simply say that children and young people are turning in large numbers to pornography to learn about sex, with unhappy consequences. Often violent, mainly misogynistic, unrealistic adult male fantasy is not a good starting point for a healthy, happy, consensual sex life.
I would have preferred for the age verification system to be fully thought out, prototyped and beta-tested before it came to the House in the form of legislation. None the less, I agree that Part 3 is a valiant attempt to stem the flow of adult material into the hands and lives of children. In the absence of a better, more thought out plan, I support it. But if this is the path we are taking, we must be clear in our message: this material is unsuitable for those under the age of 18.
The BBFC says that it intends to take a proportionate approach to its new role and will target the top 50 adult websites as accessed by viewers in the UK. Its research shows that 70% of all those who access such sites in the UK visit the top 50. Among children, concentration among those top sites is even higher. In that respect, I understand that age-verifying 70% of adult material websites sends a clear message.
However, a brief search on Twitter, which has a joining age of 13, shows that commercial pornography is readily available, with popular accounts attracting hundreds of thousands of followers. Many of those who access pornographic social media accounts do not publicly follow them, so it is more than likely that the follower figures are dwarfed by the number of actual viewers. In the case of younger viewers, such platforms if accessed via an app leave no browser footprint that might be discovered by parents—a very attractive proposition.
If social media companies provide alternative access to the same or similar pornographic material with no restriction, surely the regulator should be entitled to take the same proportionate approach and target pornographic social media accounts with similar viewer numbers to those for adult websites. For most young people, social media platforms are the gateway to the internet. Unless they are to be included within the definition of ASPs, neither the problem of young people accessing pornography nor the ambition of setting a social norm that puts adult sexual material beyond the easy reach of children and young people will be achieved. It will simply migrate.
I note that social media platforms are not homogenous and that some, including Facebook and Instagram, already take steps to prevent pornography being posted and act quickly to take it down when it does go up. It is disappointing that not all platforms take this approach. I do not want to focus on Twitter, but noble Lords might like go to the account, @gspot1177, with its 750,000 public followers, which has been publishing pornography with impunity since 2009. Surely it is necessary to bring this into scope of the regulator. Nobody is claiming that the measures set out in the Bill will prevent 100% of pornography being seen by children and I understand Ministers’ arguments that doing something is better than doing nothing, but I am concerned that in the lack of clarity about what does and does not fall within the definition of ASP there may lie a lack of political will about holding certain stakeholders to account.
I would love to hear from the Minister whether major social media platforms including Tumblr and Twitter have confirmed to the Government how they would respond to requests from the BBFC to withdraw services from a non-compliant site—and whether his statement at Second Reading that social media platforms may be considered ASPs by the regulator still stands.
My Lords, I welcome the wise words of the noble Baroness, Lady Kidron. I also want to pay tribute to the work that the noble Baroness, Lady Howe, and my noble friend Lady Benjamin have done on this area. I well remember my noble friend Lady Benjamin almost doorstepping the former Prime Minister David Cameron to get something done on this area. He agreed that action would be taken.
I spoke on this at Second Reading—not in any technical way because I am not a particularly technical person; I spoke as a head teacher of 20-odd years on the harm that pornography potentially does, and is doing, to young people. We are rightly always concerned about the safeguarding of children and young people. We put in place all sorts of safeguarding procedures, yet we seem to find all sorts of reasons why we cannot do anything about pornography. Many young lives, frankly, are being corrupted in the pure innocence of childhood as they follow an older brother or sister, a friend or a mate, who might say, “Oh, have a look at this”. Once they get involved in this, it does immeasurable harm, not only to the child but to their view of women, for example.
A young child of 12 or 13 on the internet, perhaps by accident, perhaps by a dare, perhaps encouraged by another person, watching female rape enacted—this is not something I want to be part of. I do not want a society that allows that to happen. It is important, and my noble friend Lord Paddick is right to say, that we should be effective in what we do. He also said that if children are determined they can access this, no matter what we put in place, but that is not a reason not to do something. The vast majority of children will do something. If somebody is determined to do something, they will always be able to do it. I hope that will not be a reason not to do something. I am relaxed about our having a look at this to get it right. I know it whizzed through the Commons, but even at this late stage I am relaxed about making sure that every “i” is dotted and every “t” is crossed in the interests of young people.
My Lords, I spoke at Second Reading on this aspect of the Bill. I was one of the people who said very clearly that I should much prefer not to have pornography of any sort on any website, because the world would be much better without it. The previous speaker is quite right. The influence that modern communication has on young people is devastating. In some families, it really has been disruptive and led to unfortunate consequences within them.
I welcome the Minister’s statement that they will take this away, think about it and come back again. I reiterate my dismay that again we have another very important Bill from the Commons that really has not been dealt with in the proper manner. I hope that in future the Commons will be allowed more time or will organise itself so that it can do the job it should and can do, and not leave it to this House to be the one saying, “Hang on”.
If you look at the number of amendments tabled to this one Bill, it reinforces the whole position that my noble friend the Minister must deal with, which in many cases should have been dealt with before. I am an old hand here and still feel strongly about this. I do not complain that my right honourable friends at the other end have not had the opportunity to do this—that is how the system works. However, we go on, year after year, saying the same thing and it is high time we got to grips with this. I would like to push a little further on the Minister’s response earlier that the Government will look at this: it is hugely important that they do.
I have slight concerns about Ofcom being perhaps one of those who should undertake this. In some ways, Ofcom is not always as robust as I would like it to be, which is perhaps unfair. Secondly, we certainly need to identify in the Bill before it leaves our House exactly what is to happen: who the enforcer is where there are dual splits within what we seek to do in the Bill. The Bill is hugely important and I hope that the Government will, as they have already indicated, take it away after Committee and think seriously about it. I would hate to think that some of the final detail will come through in secondary legislation, which we cannot alter. We need to get this into primary legislation. I support the comments made by other noble Lords and look forward to the Minister responding and, I hope, being able to take it away and come back, even if that means it happens a little later. It is much better to get it right later than to leave it in its current form.
My Lords, I will make some brief points. First, on this set of amendments I am afraid I disagree with the noble Baroness: we must get on with this. It will not be perfect on day one but the sooner we get moving the better. We have talked about this for a very long time. That is why I am not really pro these amendments.
On Amendment 55, I agree entirely with my noble friend Lady Howe. She is absolutely right to spot this lacuna: the BBFC will look at this stuff and age verification, but who will enforce it? That is a problem and I was going to raise it later anyway. She was absolutely spot on there. My noble friend Lady Kidron was also absolutely spot on about these sites. Twitter could be classified as commercial because it takes money from pornography sites to promote them. I can get evidence of that. It would be difficult for it to say that it does not promote them.
Very quickly on what the Minister said, I was going to raise under the group starting with Amendment 57 the issue of including prohibited material with the age verification stuff. We should separate protecting children from protecting adults or it will confuse things. The big danger is that if we start using this to protect adults from stuff that they should not see—in other words, some of the adult prohibited material, of which there is quite a lot out there—we run the risk of challenges in court. Everything that the BBFC does not classify because it falls into certain categories is automatically prohibited material. It is not allowed to classify certain acts. I should probably not tell noble Lords about those now as they are pretty unpleasant but they are fairly prevalent in the hardcore pornography out there. If the pornography sites are blocked from supplying adults with what they want, they will just move offshore and get round this. If they do that, there will be no point in doing age verification and we will not protect our children. That will create the first major loophole in the entire thing.
I have this from the pornographers themselves. They know what they are doing. However, they are very happy—and would like—to protect children. If we leave them alone and argue through the Obscene Publications Act and other such things as to what they must stop adults seeing, they will help block children. They are very keen on that. Children just waste their time as they do not have money to spend. At the end of the day, the pornographers want to extract money from people.
I am advised that the real problem is that prohibited material includes content that would be refused a BBFC R18 certificate. The Crown Prosecution Service charging practice is apparently out of sync with recent obscenity case law in the courts. Most non-UK producers and distributors work on common global compliance standards based on Visa and Mastercard’s brand-protection guidelines. Maybe we should start to align with that. We should deal with that separately under the Obscene Publications Act. It will be very easy for the BBFC, the regulator or the enforcer to tell what does not have age verification on the front. That is yes/no—it is very simple. The trouble is that if we get into prohibited material, it will end up before the courts. We will have to go through court procedures and it will take much longer to block the sites. I would remove that from here. I shall leave my other comments to a later stage.
My Lords, I am grateful for those contributions. They address some very important issues, some of which we will deal with now and some of which we will deal with later during the progress of the Bill. To start at the end, the noble Earl, Lord Erroll, made some interesting points regarding the statement that I made. We absolutely acknowledge some of them. I have listened to his suggestions. Our focus here is to protect children. That is what this Bill is for. That is what our manifesto commitment was. When he sees our suggestions, I hope that he will be able to contribute to the debate on Report—but I have noted everything he said.
The introduction of a new law requiring appropriate age verification measures for online pornography is a bold new step. It represents the first stage of ensuring that commercial providers of online pornographic material are rightly held responsible for what they provide and profit from.
Amendment 54B would require the regulator to publish guidance about the overarching duty of care on internet service providers and ancillary service providers, and their responsibility to ensure that all reasonable steps are taken to ensure the safety of a child or young person involved in activities or interaction for which the service provider is responsible. The purpose of our measures is to protect children from pornographic material. Seeking to stretch the framework further to regulate companies on a different basis risks the delivery of our aim. However, that is not to say that we want to ignore the issue. We take the issue of child safety online seriously and engage intensively with the industry through the UK Council for Child Internet Safety to ensure that robust protections are in place.
The Government expect industry to play a leading role in internet safety provisions, as it is best placed to offer safety and protection to children and young people. We know that it is already doing this and has default protections for under-18s, including the use of parental controls and tools to allow users to flag content, protect user privacy as well as educate users on staying safe with information and advice. We will have further opportunities to discuss the role of the industry, including social media and internet service provider filters, later in Committee.
Amendment 54D seeks to introduce a new clause with the requirement that the Secretary of State must consult on the role of the age verification regulator. The clause further seeks that the Secretary of State must lay before each House of Parliament a report on the results of the consultation and the Secretary of State’s conclusions, with any appointments to be subject to approval in each House. The introduction of the measures requiring appropriate age verification for online pornography follows public consultation. We asked about the powers that a regulator should have and there was strong support for a number of responsibilities that we have introduced. The passage of this Bill has provided an important opportunity for debate on this and we have seen the introduction of an important new blocking power for the regulator, which we shall discuss later.
We are grateful to the DPRRC and the Constitution Committee for their reports, which a number of noble Lords mentioned. They made a number of recommendations about the designation of the regulator and how the regulator should fulfil its role. We are carefully considering those and will publish our response before Report.
Amendment 55, in the name of the noble Baroness, Lady Howe, would specify that the Secretary of State is to designate the British Board of Film Classification as the age verification regulator. As the Committee will know, Clauses 17 and 18 provide for the designation of the regulator and we intend to designate the BBFC to carry out most—as the noble Baroness, Lady Howe, reminded us—of the functions of the regulator. Indeed, some noble Lords may have seen the BBFC’s recent presentation to the Children’s Media and the Arts APPG.
It is important that we work with organisations that have a proven record in their field and the right attributes to carry out the role effectively. This is why we are pleased to be working with the BBFC, which has expertise in making editorial judgments over pornographic content. We also believe it is right that Parliament should have the opportunity to scrutinise this important appointment, and Clauses 17 and 18 enable that to happen. The noble Baronesses, Lady Howe and Lady Jones, my noble friend Lady Byford and the noble Earl, Lord Erroll, all asked whether we should outline in the Bill who any additional regulators, if they are necessary, should be. We have said consistently that this could be a job for more than one regulator because it is a big task. The feedback from our public consultation and from our engagement with key stakeholders suggests that this is a task that could be dealt with by two regulators.
We propose that the BBFC should carry out the initial monitoring, assessing and notification work, and we are carefully considering alongside this the option for an enforcement regulator. But we understand that Parliament should be able to take a view on this. We continue to consider the appropriate timing for introducing civil sanctions for non-compliant providers, and for deciding who the regulator will be. This is a new system and this approach provides the appropriate level of flexibility and the right levers to ensure that the providers of pornographic material will be incentivised to comply. We have listened to the views of the noble Baroness, Lady Howe, and other noble Lords on this. Again, the DPRRC has made a recommendation on this, which we are considering, and to which we will respond ahead of Report.
Amendment 55B adds the requirement:
“The age-verification regulator must make an annual report to the Secretary of State … in particular on the effectiveness of … the provisions in Part 3 of reducing the number of children under 18 accessing pornographic material online … The Secretary of State must lay a copy of any report made under this section before each House of Parliament”.
The regulator will of course be expected to report on the impact of age verification measures but we do not think that it is right to prescribe this in the Bill. The importance of getting this measure right means that the Government remain open-minded and wish to retain flexibility as to how best to respond to changing circumstances, without placing additional burdens on the regulator. Any new scheme must be given time to fine-tune the changes required to establish the most effective system.
The noble Baroness, Lady Kidron, asked about ancillary service providers, in connection with social media. I confirm, as she asked me to do, that it remains our view that under this legislation an internet site can be classified by the regulator as an ancillary service provider where it is enabling or facilitating the making available of pornographic or prohibited material, as I said at Second Reading. That means that such sites can be notified of pornographers to whom they provide a service. There is a range of potential ancillary service providers and the differing actions they could take are often technology-dependent. The regulator is consulting with the industry and we expect it to publish guidance on the circumstances in which it will notify ancillary service providers.
We think there is a fundamental difference between a pornography website that produces dangerous material, which can be closed down, and an ancillary service provider, which can make it available. The method of notification is what we are expecting to use and we are reluctant to move further than that at the moment. We will see how it works. We do not want to get to the situation where we have to close down the whole of Twitter—which would make us one of two countries in the world that has done that.
On the basis of those explanations, I would be grateful if the noble Baroness felt able to withdraw her amendment.
My Lords, I thank the Minister for his opening statement and for his comments now, but I do not really feel that he addressed our concerns about the overarching architecture of the regulatory structure: where the power should lie, the detail of which regulator has which functions and so on, and whether there is a need for someone to oversee the whole regime.
I also thank the Minister for his offer of further discussions about this, but as a number of noble Lords have said, it is rather frustrating that the information and debate that we ought to be having here in Committee is being shifted backwards so that we will have it in correspondence or perhaps offline before Report. Normally, we would expect the government proposals to be in front of us here, so that we can debate them in detail. As the noble Baroness, Lady Byford, said, once again we find that the debates that we should be having in Committee are happening on Report, which makes it very frustrating for everybody involved. That also applies to the reports from the Delegated Powers Committee and the Constitution Committee. With respect, the Government have had those documents for several weeks now, and I would have thought it would have been possible to have given us a response as to how the Government intend to react to them before today’s debate. I find this whole process for considering Part 3 very frustrating. Notwithstanding that, I know that the Minister means well and I am sure we will all want to take up his offer of further discussions, if that is possible.
The noble Baroness, Lady Howe, made a very good point about who the other regulator will be, and I was not sure that the Minister really answered it. Again, if we are going to get down to putting in the Bill that the BBFC will have part of that function, it is right that we should also say who will have the other part of it; otherwise, the Bill is not going to make sense. So I have an ongoing sense of frustration. Some of the issues that a number of noble Lords have raised will spill into some of the discussions that we will have on other amendments and will no doubt come up several times, regrettably, although maybe that is just because of the way that we have structured some of the amendments.
I agree absolutely with the noble Baroness, Lady Kidron, that we need a much clearer definition of ancillary service providers. To the outside world, that is a non-phrase really, but it means either so much or so little, and we just need some clearer definition of what it means in terms of the responsibilities of social media providers. It may well be, as I think the noble Lord was suggesting, that some of them have different responsibilities from others, but we need that debate. It is a really important debate, since, as the noble Baroness was saying, children are accessing this material and there do not seem to be any real proposals in front of us for how we are going to get a grip on that. That is perhaps something that we can return to later as we debate other provisions in Part 3.
Finally, I think the Minister strayed into the whole issue of what is prohibited material. Again, we have amendments on that later and will return to it when those are discussed, but I thought that we had made more progress on that than the Minister is now suggesting. I know that a number of noble Lords had a meeting with Matt Hancock, the Minister, a couple of weeks ago, and I thought that we were edging towards a new form of words, but it does not seem that this is before us from what the Minister has said. So again, we have a level of frustration about this.
Let me confirm that I hope we are edging towards some agreement; it is just that, as the noble Baroness will be aware, there are times when one can announce these things and there are times when one cannot. I agree with her that it is somewhat frustrating—in the same way that it is frustrating when, though we have had the Explanatory Memorandum since the Summer Recess, amendments appear at the last minute. It is a frustrating process.
Well, this is because the discussion has gone on over the summer, with the Government and with other people. We have been seeking clarification, which we have not had, which is why we finally put down amendments. Anyway, this debate is going to continue, I think, through the course of Part 3. In the meantime, I beg leave to withdraw the amendment.
Amendment 54B withdrawn.
54C: Clause 15, page 18, line 25, at end insert—
“( ) The Secretary of State shall by regulations made by statutory instrument lay guidance for the purposes of subsection (3) before both Houses of Parliament.”
My Lords, this returns to some of the more detailed proposals of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee. As I have already said, when we first looked at Part 3, we were immediately concerned about the lack of oversight and accountability of the powers and functions of the age verification regulator or regulators. So we were not surprised, when the reports of the Constitution Committee and the Delegated Powers and Regulatory Reform Committee were published, that they very much echo our concerns. For example, the Constitution Committee said:
“We are concerned that the extent to which the Bill leaves the details of the age-verification regime to guidance and guidelines to be published by the as yet-to-be-designated regulator adversely affects the ability of the House effectively to scrutinise this legislation. … The House may wish to consider whether it would be appropriate for a greater degree of detail to be included on the face of the bill”.
This is what we are debating and grappling with today.
The Delegated Powers Committee raised a number of more detailed criticisms. For example, it was concerned that the Bill leaves it to the Secretary of State to determine who the regulator or regulators should be, and said that it is inappropriate for the regulator to then decide what the appeals mechanism should be. It flagged up the need for this to be an independent body. It was deeply concerned that the regulator would be left to draw up its own guidelines on the circumstances in which internet sites would be deemed to be publishing pornographic materials. It went on to say:
“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”.
It also noted that further broad discretion to the regulator was being granted to produce guidelines on the application of those financial penalties. In all these areas it therefore recommended that the regulator’s guidelines should be laid before Parliament and subject to the affirmative process. In the absence of a positive government response to these recommendations, we have been helpful by setting out a number of amendments that aim to achieve that desired outcome.
So Amendment 54C would require the guidance on the types of arrangements for making pornographic material available, and circumstances in which it is judged to be commercial, to be laid as SIs before both Houses. Amendment 55A specifies that the Secretary of State should make regulations for a clear appeals procedure which would come before both Houses, and makes it clear that the appeals regime should be independent. We are also supporting Amendments 69 and 229B, in the name of the noble Lord, Lord Paddick, which aim to achieve a similar outcome.
Amendment 56A would require an SI on the arrangements for issuing enforcement notices to those who contravene the age verification regime. Amendment 62A would require the guidelines on the blocking of access to sites via payment providers and ancillary service providers to come before both Houses in the form of SIs. All these proposals are drawn from the recommendations of the Delegated Powers Committee.
I have also added my name to Amendment 66, in the name of the noble Lord, Lord Paddick. We believe that the power to block sites, while important as an ultimate deterrent, should be imposed proportionately and with careful scrutiny. The current wording of Clause 23 allows for the regulator to give a notice to an internet service provider that it should block non-compliant sites so that the offending material cannot be accessed. The clause also specifies that the regulator should inform the Secretary of State of its intention to give such a notice. We do not believe that that is the right mechanism, and it does not provide enough independent scrutiny of the decision. This is why the amendment requires a blocking injunction to be initiated by the Secretary of State in conjunction with the regulator.
As I have already said, like many others, we have received representations from the internet service providers about the scale of the demands on them in Part 3. They are, after all, the innocent parties in this process. They are, in effect, caught in the middle between the regulator and the offending pornographic site. Understandably, they have requested that any decision to block a site should be legally watertight and implemented as a measure of last resort. We agree with that. If the Bill is to be successful, the threat of a site being blocked should be enough to deliver the desired change. This is why this amendment is important. It would bring legal certainty into the process for the ISPs which would help them avoid separate legal challenge. It also positions blocking more clearly as an ultimate sanction which would be adopted in extreme cases. We therefore support Amendment 66.
As I have made clear, these are all procedural amendments that spell out the detail that the Delegated Powers Committee said was lacking. We had hoped that the Government would have tabled their own amendments to achieve a similar outcome, but in the absence of that positive government response I hope that noble Lords will feel able to support our amendments. I beg to move.
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.
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.
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.
My Lords, I put my name down to one of these amendments because I wanted to talk about appeals. The reason for that is very simple and comes back to what I said earlier. I do not think there should be any question about there being no age verification. That should be almost an absolute offence: if there is no age verification, a site can be blocked, just like that. If the relevant people want to make an appeal, they can do so later and make it as complicated as they like. The main issue has already been raised and I agree entirely with the noble Lord, Lord Morrow, that Clause 23 is ideal. I entirely agree with the point about the foreign sites. They are not going to do anything if we do not block them. They will just mess around and children will get access to adult pornography for goodness knows how long. We need to be able to block immediately sites that do not have age verification.
I refer to appeals as we are muddling up the question of what is pornography with that of what is material that adults are not permitted to view. We need an appeals mechanism as we are going to get wrapped up in the lacunae and the mismatches between the Obscene Publications Act, the court cases and everything else, as I said earlier. We can see a Lady Chatterley-style case going through and taking years. In the meantime, all the non-age verified sites have to do is to keep appealing or whatever. That is not going to work. If we are going to include what is permitted for adults to view in this part of the Bill, we need an appeals process for that, but not an appeals process if the relevant sites do not have age verification in relation to potentially pornographic material. I will talk about that when we discuss the group of amendments commencing with Amendment 57.
My Lords, first, I thank the Minister for his opening remarks at the beginning of this debate. I was pleased to hear that the Government are in listening mode as we work our way carefully through this Bill.
When we speak about the crucial subject of the enforcement of the age verification provision, it is vital to remember that we are talking about how we ensure that children and young people are kept safe. All the evidence is that early exposure to pornographic material can be extremely harmful to children. The Economist reported that given the view that sexual tastes are formed around puberty,
“ill-timed exposure to unpleasant or bizarre material could cause a lifelong problem”.
As I repeatedly say, childhood lasts a lifetime.
There is evidence that pornography can lead to unrealistic attitudes to sex, damaging impacts on young people’s views of sex and relationships, putting pressure on how they look or influencing them to act in a certain way. All of that reminds us of the context in which we are having these discussions on the finer points of enforcement. With this context in mind, we need to make sure that the age verification provisions in Part 3 are backed up with the most effective means of enforcement.
We have heard noble Lords set out why they think Amendment 66 would be better than Clause 23, but does it really stand scrutiny? There is a concern about the delay that would result from Amendment 66. Quite apart from the fact that requiring the age verification regulator to enforce the age verification requirement through court injunctions would be much slower and much more expensive than the procedure under Clause 23, there is the fact that Amendment 66 would further delay the provision of effective enforcement, and therefore child protection, through the requirement that IP blocking would take effect only if the Secretary of State at some future point decides to make regulations allowing this. In this regard I am particularly concerned that the drafting of proposed new subsection (1) in Amendment 66 implies that the Secretary of State can consider making regulations only when the BBFC considers that there is an actual person in contravention. The BBFC cannot be ahead of the game and will be on the back foot while it waits for the regulations to be made, if they are to be made at all. This does not make our children and young people safer. I am also concerned that Amendment 66 does not provide legal clarity for ISPs at this stage of the Bill on whether IP blocking will be required and, if so, how that will need to be delivered.
While Amendment 66 does not provide certainty, Clause 23 sets out very clearly its central requirement in subsection (2)(c) that an ISP must,
“prevent persons in the United Kingdom from being able to access the offending material using the service it provides”.
It sets out when that would be required in subsection (1), how it would be implemented in subsection (2) and the obligations on the ISPs in subsection (8). The BBFC knows what it can do; the ISPs know what will be expected of them; and the pornographic websites will be clear that their sites might be blocked if they do not comply with Part 3. In comparison with the much weaker Amendment 66, Clause 23 is so effective that exchanging them would fundamentally weaken the child safety provisions in the Bill. That would be a real tragedy.
Why are we making exceptions for porn merchants? We have had a system in place in the UK for dealing with child abuse images for over 20 years. It is the envy of the world. It has never required prior judicial authorisation. Let us be clear: the Internet Watch Foundation, which runs the system, could at any time be brought to court to explain an action or decision it has taken, because it is subject to judicial review. Not only has the IWF never lost a judicial review case, no one has ever taken one against it. We get rid of terrorist material without requiring any judges or courts to get involved and I have never heard any criticism of that system. But if we are talking about protecting children against porn—oh no. Everything slows down, everything becomes more expensive and we have to get a judge and lawyers involved, because it is suggested that, uniquely, we need prior judicial authorisation.
However, the age verification regulator will have an appeals system. Every decision the regulator takes can be made the subject of a judicial review. If the regulator gets taken to court and loses all the time, perhaps we would need to look at the provisions again, but I have absolutely no reason to believe that would be the case. Therefore I think that Amendment 66 should be rejected, because the material we are talking about here is extremely harmful to children and we want it out of sight as quickly and simply as possible. I am sure that no one in this House would want their children or grandchildren ever to be exposed to or damaged by this vile material. Our overworked courts and judges have enough on their plates. We simply do not need to drag them into this on a routine basis. Let us put our children’s well-being and protection first. I very much hope that the Government will stand by Clause 23 and reject Amendment 66.
My Lords, like the noble Baroness, Lady Benjamin, I rise to speak against Amendment 66, which in my judgment would seriously undermine the scope for Part 3 of the Bill to be enforced. I have campaigned for child safety online for many years and am far from reassured that the amendment will deliver on that objective. I have also raised repeatedly concern about the quantity and type of pornography accessed in the UK but based in other jurisdictions. I am very pleased that the Government have recognised that this is a significant issue. However, without being able to ensure that foreign websites take the action that is required under Part 3, in practical terms we will be no further forward.
This is no theoretical discussion. In its evidence to the Public Bill Committee in the other place, the British Board of Film Classification said that it planned to target regulation at about 50 sites and that it does not expect any of these to be in the UK. Clause 21 sets out fines but is far from clear about what the Government can do if a site in another jurisdiction refuses to pay a fine; your Lordships can come back to that when we debate the next group of amendments.
Clause 22 has a better international reach but it fails in a number of different scenarios relevant to the discussion on Clause 23: first, if a site offers free pornography; secondly, if it does not use conventional credit cards but relies on payment methods such as bitcoin; and thirdly, if the website does not use a UK-based ancillary service provider. These very brief statements highlight the need for another enforcement option for foreign websites, and I am pleased that many Members in the other place agreed. I commend the work of Mrs Claire Perry, the honourable Member for Devizes, who had the support of 34 MPs from seven parties for her amendment, which had a similar objective to Clause 23. I also congratulate the Government on responding constructively with the introduction of Clause 23.
For Part 3 to be effectively enforced, it is critical that foreign sites know that the UK regulator could block them. The Digital Policy Alliance, in its briefings on the Bill, said that that there would be a major loophole in the Bill without an IP-blocking option. To this end, the proposals in Amendment 66 are deeply problematic. My noble friend Lord Morrow has already mentioned concerns about delays arising from the need for the Secretary of State to produce regulations and the question of whether he or she will use the power. On top of this, court injunctions are expensive and cumbersome, and every website would know that they could be used only very occasionally, which could tempt foreign sites accessing the UK to risk not bothering with age verification.
I am also concerned that Amendment 66 would undermine the admirable work the Internet Watch Foundation does on removing child abuse images. I understand that if blocking of pornographic and prohibited material should require court injunctions, it will form a very difficult precedent for bodies such as the foundation, which help to keep our children safe. If it had to use a court injunction every time it requested that a page should be taken down, that would greatly limit and inhibit its capacity and as such would be a grave and very serious mistake.
By contrast, Clause 23(1) allows the BBFC to use IP blocking, after notifying the Secretary of State, from the day Part 3 comes into effect. The BBFC may need to use this power early into the Bill’s implementation if it cannot trace a foreign website or if the website is unresponsive and does not use credit card payments, which might be blocked under Clause 22. There will be no delay as to when this enforcement power can be used. Secondly, it will give the BBFC the power to ask ISPs to block sites when they need to. It is not saying that they must use this power but that they can. There will be no delay or the expense of going to court to get a blocking injunction. Thirdly, there will be no negative impacts on the Internet Watch Foundation and the admirable work it does on removing child abuse images.
In a context where the majority of online pornography accessed in the UK comes from websites based in other jurisdictions, the provision of a robust and flexible IP blocking mechanism is central to the ability of this legislation to enforce the age verification provisions that are at its heart to keep our children safe. To swap Clause 23 for Amendment 66 would not reflect well on us. In closing, I warmly congratulate the Government on Clause 23 and hope that they and the Minister will stand resolutely by it and against Amendment 66.
My Lords, this has been an important and interesting debate—I can tell that by the number of Peers who are arriving to hear my response. I also appreciate very much the offer of help given by the noble Baroness, Lady Jones. I have listened carefully to the arguments and again I acknowledge that we are not able to give our answer on the DPRRC’s report, but as the noble Lord, Lord Clement-Jones, said, it is very important to get it right and we will produce the response soon.
The age verification regime was designed to provide a proportionate and practical response to the very real problem of the easy availability of internet pornography to children, and we need to bear that in mind when considering this issue. Amendments 55A, 69 and 229B are concerned with appeals. The BBFC has a strong track record in running the system of classification, including a two-stage appeals process which includes an appeal to an independent authority. We understand the desire to specify in detail in the Bill what an appeals process must look like for what is undoubtedly a serious matter, but we are satisfied that the BBFC is in a strong position to develop and administer a fit-for-purpose appeals process. Clause 17 specifies that the Secretary of State may not designate the regulator until satisfied that arrangements will be maintained by the regulator for appeals by the key persons involved in the regulatory framework, as set out in Clause 17(4)(a) to (e). As the noble Baroness, Lady Jones, said, the DPRRC has made some well-considered recommendations on appeals that we are considering and will be responding to before Report.
Amendments 54C, 56A and 62A provide that the Secretary of State must, in regulations made by statutory instrument, lay guidelines before each House of Parliament on different areas of the regulatory framework. The internet, as we all know, is a fast-changing area and the legislation has been drafted with the necessary flexibility to create a proportionate regulatory framework. For example, it will be for the regulator to publish guidance about ancillary service providers. I have also noted the recommendation of the DPRRC on these matters and I can assure noble Lords that we are considering it carefully before responding.
On the issue of ISP blocking, government Amendment 67 ensures that the regulator must not direct an ISP to block a non-compliant site should that be detrimental to national security, the prevention or detection of serious crime, or an offence listed in Schedule 3 to the Sexual Offences Act 2003. We believe that it is right that the actions of the regulator in seeking to protect children from pornographic content should not have unintended consequences for the work of law enforcement and the security and intelligence agencies in combating serious crime and protecting national security. I am confident that the industry will take a responsible position and therefore envisage that the regulator will need to use this power only sparingly. However, where it does need to be used, I would suggest that the regulator would never wish to be in a position where it might have an unintended impact on efforts to ensure public safety.
The provision provides an important safeguard for circumstances in which a site might form part of an investigation. The Government and the regulator will agree arrangements for how the deconfliction process will take place. This is an important step towards ensuring that the regulatory regime functions in a successful way and giving the regulator a framework in which to succeed.
Amendment 66 tabled in the name of the noble Lord, Lord Paddick, and other noble Lords brings forward blocking by court order. We recognise that providing the regulator with the power to direct internet service providers to block content is a serious step, but the conflicting views of noble Lords in the debate show that this is a difficult area to get right. We have always been clear that we want to build an effective regime. This is fundamentally different content to regimes where court orders are used. As I have said, and the noble Baroness, Lady Jones, agreed, we envisage that the regulator will need to use this power only sparingly. However, the cost and process of the court order procedure would place an undue burden on the system We know that the court order process for copyright, for example, is not without issues, and unlike copyright where the individual is seeking a court order, in this case there is a regulator with expertise in classification.
It is important to note that our regime is about encouraging compliance by the industry. Giving the regulator the power to direct internet service providers is the proportionate and right approach to ensuring that children are not inadvertently exposed to harmful pornographic material. With that explanation, I hope that the noble Baroness will withdraw her amendment.
My Lords, I thank all noble Lords who have contributed to this discussion. I say to the noble Lord, Lord Morrow, that we are all trying to balance child protection and civil liberties; that is the issue we are trying to resolve. Indeed, there is no black-and-white answer and it may well be that we will need to have further discussions. But I remind noble Lords that the Delegated Powers Committee said that it considered it objectionable for an unspecified regulator—people have talked about it being the BBFC but I do not think it necessarily will be—to have so much power to impose fines and take other enforcement action. We need to look again at how we can ensure some other oversight of those powers. Amendment 66 would provide a legal structure for all that, and we still feel it would provide the certainty that does not exist under Clause 23. Further, it would provide a degree of independent oversight, which Clause 23 as it stands does not.
I say again that the ISPs caught in the middle of all of this are very concerned about the way Clause 23 is worded. They feel that they will be caught in the middle of legal battles, and it may well be that whatever we decide, these matters will end up in court anyway. Given that, the more legal clarity and specification we can put in the Bill, the better, because that will help everyone to understand their rights. Some noble Lords have also queried the appeals process, but it is important to spell out not only what that process should be, but that it should be independent. Again, our amendments seek to achieve that.
I know that the noble Lord has said that he wants to come back to this when the more detailed response to the Delegated Powers Committee’s report has been produced. I hope that our amendments have been helpful and that they may provide a working copy from which he can put his ideas together. In the meantime, I beg leave to withdraw the amendment.
Amendment 54C withdrawn.
Clause 15 agreed.
Clause 16 agreed.
House resumed. Committee to begin again not before 2.57 pm.
Brexit: New Partnership
My Lords, with the leave of the House, I will now repeat a Statement made in the other place earlier today by my right honourable friend the Secretary of State for Exiting the European Union. The Statement is as follows:
“With permission, Mr Speaker, I wish to make a statement on the Government’s plans for exiting the European Union. Today we are publishing a Government White Paper on the UK’s exit from, and new partnership with, the European Union. This Government have made clear that they will honour the choice made by the people of the United Kingdom on 23 June 2016. The UK will leave the European Union. This House is currently considering a straightforward Bill that will give the Prime Minister the authority to trigger Article 50 of the Treaty on European Union and begin the negotiation over our exit. That is not a Bill about whether or not we leave the EU, or even how we do so, but about implementing a decision already taken by the people of the UK in last year’s referendum. But we have always said that we would detail our strategic aims for the negotiation and seek to build a national consensus wherever possible.
This White Paper sets out those aims and the thinking behind them. It confirms the Prime Minister’s vision of an independent, truly global United Kingdom and an ambitious future relationship with the European Union. This is based on the 12 principles that will guide the Government in fulfilling the democratic will of the people of the United Kingdom. These are: providing certainty and clarity where we can as we approach the negotiations; taking control of our own laws and statute book; strengthening the union by securing a deal that works for the whole of the United Kingdom; maintaining the Common Travel Area and protecting our strong historic ties with Ireland; controlling immigration from the European Union; securing the rights for European Union citizens already living in the United Kingdom and the rights of United Kingdom nationals living in the European Union; protecting and enhancing existing workers’ rights; ensuring free trade with European markets, forging a new strategic partnership with the European Union, including a bold and ambitious free trade agreement and mutually beneficial new customs agreement; forging ambitious free trade agreements with other countries across the world; ensuring that the United Kingdom remains the best place for science and innovation; co-operating in the fight against crime and terrorism; and, finally, delivering a smooth, orderly exit from the EU.
These 12 objectives amount to one goal: a new, positive and constructive partnership between Britain and the European Union that works in our mutual interest. All of them are key, but let me highlight some of the specific issues in the White Paper. It reiterates our firm view that it is in the United Kingdom’s interest for the European Union to succeed politically and economically and so we approach the negotiations to come in a spirit of goodwill and working to an outcome in our mutual benefit. We recognise the European Union’s principle of the four freedoms and so the United Kingdom will leave the single market. Instead, we seek a new strategic partnership, including a bold and ambitious free trade agreement and a mutually beneficial new customs agreement that should ensure the most free and frictionless trade in goods and services that is possible. That will be to our mutual benefit.
As the White Paper notes, we export £230 billion-worth of goods and services to the EU while importing £290 billion-worth of goods and services from the EU every year. It also sets out how, after we leave the EU, the United Kingdom will look to significantly increase its trade with the fastest-growing export markets in the world. While we cannot sign new trade deals while still a member, we can and are preparing the ground for them. This means updating the terms of our membership of the World Trade Organization, of which the United Kingdom was a founding member. Modern free trade agreements require mechanisms to resolve disputes and to provide certainty for businesses on both sides. So the White Paper examines precedents in this area and makes it clear that we will negotiate an arrangement that respects UK sovereignty.
In terms of clarity and certainty, we recognise the need to provide it wherever we can during a period where some uncertainty is inevitable, so we will bring forward another White Paper on the great repeal Bill which will lay out our approach in detail. This legislation will mean the repeal of the European Communities Act while converting existing EU law into domestic law at the point of exit. That means that the position we start from—a common regulatory framework with the EU single market—is unprecedented. This negotiation will not be about bringing two divergent systems together. It is about finding the best way for the benefits of the common systems and the frameworks that currently enable the UK and EU businesses to trade with and operate in each other’s markets to continue when we leave the EU.
The White Paper also sets out that we will take control of our own laws, so that they are made in London, Edinburgh, Cardiff and Belfast and ensure that we can control the number of people coming to the United Kingdom from the European Union and that the jurisdiction of the Court of Justice of the European Union in the United Kingdom will come to an end. It will be for Parliament and the devolved legislatures to determine significant changes to reflect our new position.
I have said at this Dispatch Box before that there will be any number of votes on substantive policy choices. To that end, the White Paper makes it clear that we expect to bring forward separate legislation in areas such as customs and immigration. Delivering a smooth, mutually beneficial exit, avoiding a disruptive cliff edge, will be key. A never-ending transitional status is emphatically not what we seek, but a phased process of implementation of new arrangements—whether immigration controls, customs systems, the way we co-operate on criminal and civil justice matters, or future regulatory and legal frameworks for business—will be necessary for both sides. As the White Paper says, the time needed to phase in new arrangements in different areas may vary.
As one of the most important actors in global affairs, we will continue to work with the European Union to preserve United Kingdom and European security, fight crime and terrorism and uphold justice. We must work more closely—not less—in these areas. We will seek to build a national consensus around our negotiating position, so we are talking all the time to business, civil society, the public sector and representatives of the regions. We have engaged the devolved Administrations in this process and, while no part of the United Kingdom can have a veto, we are determined to deliver an outcome that works for the whole of our country. We continue to analyse the impact of our exit across the breadth of the United Kingdom economy, covering more than 50 sectors, to shape our negotiating position.
To conclude, the referendum result was not a vote to turn our back on Europe. It was a vote of confidence in the United Kingdom’s ability to succeed in the world and an expression of optimism that our best days are still to come. Whatever the outcome of our negotiations, we seek a more open, outward-looking, confident and fairer United Kingdom that works for everyone. The White Paper is available on the Government website and I have arranged for copies to be placed in the Libraries of both Houses”.
My Lords, I thank the Minister for repeating the Statement and the House for agreeing to hear it so early, before having time to see the White Paper. It was a courtesy to me so that I can get away for the funeral of my favourite uncle, Uncle Joe. That is why we are having this debate early—so I can go and bid farewell to him—and I thank the House for its tolerance.
I also thank the Government for now—perhaps a little late—putting a White Paper to Parliament and making an announcement here. It was a tad regrettable that the Prime Minister’s two key speeches were made outside Parliament; one to the Conservative Party on 2 October and one in Lancaster House on 17 January. It is Parliament—and particularly the House of Commons—which speaks for the country, so we are pleased that the White Paper, which we have long sought, has been announced at the Dispatch Box.
The driving motivation for Mrs May and her negotiators must be the long-term economic and social well-being of the UK. Yesterday, the Prime Minister said that she led the country. I hope that she can and will, because only by exiting the EU in a way that serves all the country—Scotland, Wales, London and the areas that have done less well from globalisation—will she truly be able to work to unite a divided country and also enable our economy, businesses, workers and consumers to benefit, while safeguarding our environment and our relationship with our nearest neighbours and close allies.
Some of what is suggested in the White Paper we can support: tariff-free, encumbrance-free and—I think the Minister said—frictionless access to the EU market; the ability to recruit talent; support for science and innovation; and, as I have stressed before, the partnership that we need with the EU 27. But we also have serious concerns about the White Paper, which will form our agenda for scrutiny here and, I hope, for the ongoing work of our EU committees, to which the Minister paid tribute earlier.
Consumers are not highlighted in the 12 principles but are vulnerable to losing compensation from cancelled flights and dangerous products once we are out of the European alert system. They will possibly be unable to use our courts to follow insurance claims for car accidents abroad, and may even face visa requirements to travel in the EU. The environment is also not one of the overarching 12 principles, despite enormous improvements to the environment made at EU level in co-operation with our EU allies. Nor is how to make good our absence from Euratom—just three paragraphs in the White Paper. We regret any departure from the customs union. We will seek to understand why on earth this is an objective, given the problems it will cause for our importers and exporters, particularly of complex products or components, and for the service sector, as was raised this morning.
I am also curious about the background to the White Paper. Is it just the Lancaster House speech but in a more normal White Paper style? Or is it what we would normally expect from a Government who know what they are doing, based on careful cost-benefit and options appraisal, with impact assessments prepared for the various options? The noble Baroness, Lady McIntosh of Pickering, asked some fairly simple but fundamental questions this morning about such assessments, but answers came there none. I ask again: will the Government, while holding any negotiation tricks safely up their sleeve, complete and publish impact assessments on the White Paper’s objectives? Will they make these available to our EU committees in a timely manner so that their reports can influence the Government’s thinking?
When will the Government publish the other White Paper, not on what is called the great repeal Bill but on what is actually a retrenchment Bill? Will there be pre-legislative scrutiny of that Bill?
My Lords, I also thank the Minister for repeating the Statement, but I ask him from where the Government believe they derive the mandate to leave the single market, in an extreme version of Brexit. This dishonours the legacy of Margaret Thatcher, breaks the Conservative manifesto promise to stay in the single market and breaches the wishes of 90% of voters who, in a poll last November, said they wanted to stay in the single market. There was no choice on the ballot last June that asked people, “Do you want to leave the single market?”.
Therefore, will the Minister tell me why this version of Brexit, which will be so destructive to our economy and jobs, is being chosen? It will also be a great deal more bureaucratic. Any alternative to the smooth trade we get with the single market and the customs union, especially for supply chains that exist not only in manufacturing but in services and, as I learned this morning, universities, which depend on the free exchange of academics, will be more bureaucratic and mean more red tape. The Conservatives always tell us they stand for slashing red tape. Also, how do we expect to get the benefits of common systems and frameworks when we are not in the single market and customs union? I do not understand how we can derive such benefits.
The Prime Minister said in her Lancaster House speech that,
“no deal … is better than a bad deal”.
In the light of that, will the Minister please explain how the Government will fulfil the promises of certainty, clarity and a smooth orderly exit, avoiding a disruptive cliff edge? If the Government propose to walk away from the negotiations, how can they avoid a disorderly, chaotic Brexit, which is precisely what business and most of us fear? Where is the national consensus? Where are the 48% of people who voted to remain reflected in the White Paper, which I acknowledge I have not had the opportunity to read, although I read the Statement, which talks about a national consensus? I second the request for the publication of impact assessments for us to know exactly where the Government think they are taking us in concrete reality.
The Prime Minister has admitted that the UK will continue to pay into the EU budget for the sectoral benefits they expect to get. Where will the money come from for the NHS, promised by the leave campaign? It is currently about £11 billion; we all know how cash-starved the NHS is.
On the declared red line of no jurisdiction for the European Court of Justice, how will we then co-operate on crime and terrorism, and exchange data? These Benches fully support cross-border co-operation on policing and security, as well as civil justice. The Home Secretary was pressed on this in the other place by the Home Affairs Committee. It asked how she was going to get those arrangements while denying the jurisdiction of the Luxembourg court. She floundered in answering that question, as did the Minister of State in the Ministry of Justice to the EU Justice Sub-Committee on Tuesday in the area of civil justice. It simply does not add up.
I also ask the Minister a question we keep asking because it is important, particularly to this House. It is a cross-party concern that EU nationals and Brits in the rest of the EU should not be a pawn in negotiations. There is nothing whatever to prevent the Government giving a unilateral guarantee and a simplified procedure for EU nationals to stay, and for Brits in the rest of the EU. It is morally indefensible as well as economically illiterate not to do so. Can the Minister give me a real answer why that is not happening?
Lastly, if the Government really believe in British democracy, they should trust the people for a final say on this deal. [Laughter.] It is not a laughing matter. The noble Lord, Lord Forsyth, thinks it is funny. The Liberal Democrats do not. We take democracy seriously. People have not had a chance to see the colour of the Government’s money when it comes to what Brexit will mean in detail. They—not just Parliament, but voters—should get the chance to say whether that Brexit deal is good enough or whether they prefer to stay with the European Union.
I thank the noble Baronesses, Lady Hayter and Lady Ludford, for those interesting remarks. I start by offering my condolences to the noble Baroness, Lady Hayter. I completely concur with the thrust of what she said about the need for parliamentary scrutiny. As I said at the Dispatch Box earlier, and will continue to say, the Government will provide information and the opportunity to scrutinise me and other Ministers as we proceed in the process. I look forward to the debates that lie ahead.
I am also heartened by the approach taken by the noble Baroness and her party to the overriding approach set out in the White Paper. Obviously, it is absolutely our intention to try to safeguard our economic prosperity and, as she rightly said, to represent all parts of the United Kingdom and all parts of the economy. I am delighted therefore that there is the basis of some consensus around those points.
The noble Baroness entirely legitimately asked very basic questions about the protection of consumers and of the environment. I come back with the simplest of responses: as I have said previously, the approach underpinning the great repeal Bill is to ensure that those EU laws and regulations are enshrined in UK law. I am sure we will go on to debate those points and matters of detail in the weeks and months ahead, but that is absolutely our underlying approach.
On the customs union, as I have said before, we should start thinking about the customs union in terms of its component parts. Yes, there is the component part with regard to the common external tariff and the CDCP, from which my right honourable friend the Prime Minister has said we wish to withdraw. However, there are other aspects of it, as the noble Baroness well knows, regarding the processes around frictionless trade, such as authorised economic operators and trusted trader schemes, and precedents that one could point to on the borders between Canada and North America to ensure very free and frictionless trade. Therefore, it is slightly premature to say that we are somehow going to lose all these points. We are focused on it and are determined to ensure that we achieve trade that is as frictionless as possible.
Both the noble Baronesses, Lady Hayter and Lady Ludford, raised impact assessments. I am sorry to say that on this point, at this juncture, the Government disagree on publishing an impact assessment, for the simple reason that, as I have said before, it would undermine our position at the negotiating table. I feel that we will continue to disagree on this. I strongly recommend that noble Lords think about the consequences of providing such an analysis for the negotiations that are set to come. I note that the other place voted by a substantial majority not to do anything to undermine our negotiating position.
As for the publication of the great repeal Bill, I agree with the noble Baroness that the Bill will have within it a number of measures to ensure that the Government have the powers to deliver a smooth and orderly Brexit. Here, we will have to get the balance right to ensure that this House and the other place have the opportunity to scrutinise not just the Bill but the measures that may flow from it, while ensuring that our statute book is fully operable on the day we depart. The noble Lord, Lord Hannay, raised this point in Questions earlier. I am very mindful, as are my fellow Ministers, of the need to get that balance right. We will ensure that there is as much time as possible for proper scrutiny of the White Paper and of the Bill. We will be mindful of the thoughts of noble Lords on processes that might be entailed in making sure that the statute book is fully operable.
On the remarks made by the noble Baroness, Lady Ludford, once again I am sorry: we just disagree on this point. There was a referendum. That gave this Government the mandate. There were numerous times during the referendum campaign when those on both sides of the argument made the point that what people who voted leave would be voting for was to leave the single market. I have chapter and verse here from Mr David Cameron, my right honourable friend Mr George Osborne, the noble Lords, Lord Mandelson and Lord Darling, and my noble friend Lord Hill, and, on the other side of the argument, Mr Michael Gove and the Foreign Secretary. All made it very clear during that campaign what a vote to leave would mean. It is not quite right to say, therefore, that the British public did not know what they were voting for.
The noble Baroness, Lady Ludford, made a number of salient points and raised questions which I am sure we will wish to return to in the weeks and months ahead. I will pick up just a few of them. She mentioned standards. She is absolutely right: there is an issue around standards which this Government are very focused on. We want to ensure that consumers and businesses can continue to operate and get the protection they need, and that businesses have the frictionless trade they enjoy. The standards framework is slightly more complex than some people may understand, for the standards are set by European bodies which are not part of the EU. Our membership therefore is not entirely hinged on our membership of the EU—I am thinking of CEN and CENELEC in particular. We are focused on that and on the issues around conformity assessment that arise from it, and we will obviously wish to debate them more in due course.
The noble Baroness also asked how we would avoid a cliff edge. This comes back to the fact that we have set out what we believe is a clear, rational approach to the negotiations. We believe that it will be in our mutual interest to come to an agreement with our European partners and that we will avoid a cliff edge as long as that happens. That is what we intend to do.
The noble Baroness mentioned the role of the ECJ. As she rightly pointed out, the ECJ has a role in a number of ambits. Given that we are leaving the ECJ, it will be a matter for negotiation how we can continue to have a relationship with those bodies and agencies in the months and years following our exit.
I have nothing further to add on the issue of EU nationals, but the Government have raised this issue with other EU leaders and they told us that they did not wish to start to negotiate on this point until we had begun formal negotiations and therefore had triggered Article 50. That is why it is important that we get to the point of triggering Article 50 by the end of March.
Finally, on whether there should be a second referendum, I would simply say this: there are some people in the Liberal Democrats who do not accept the outcome, who feel incredibly angry and who feel that the referendum is reversible and can somehow be undone. The public have voted. I think it is seriously disrespectful and politically utterly counterproductive to say, “Sorry, guys, you got it wrong. We’re going to try again”.
I am very sorry they disagree with that, because those were the words of Sir Vince Cable. It is what the Liberal Democrats themselves have been saying. I entirely agree with the guru of Twickenham. I am so sorry that we disagree on this fundamental point.
Is my noble friend aware that none of us has had a chance to read the White Paper yet? We have an advantage in this House that at least we have had it before the Second Reading and can properly discuss it.
Perhaps my noble friend can respond on one point that concerns me. I was involved when we had the presidency of the European Union for six months and I know of the great organisational pressures that are put on government at such times. I do not know what encouragement we can give to the other members of the European Union, but as I look at who the next presidencies will be after Malta—in the shape of Estonia, then Bulgaria, Austria and Romania—I do not think that I am the only Member of your Lordships’ House who will worry about the ability of the presidency to cope with the great pressures it will have at that time.
On a lighter note and just to warm things up a bit, is my noble friend aware that we are approaching the 100th birthday of Dame Vera Lynn? I do not think that I am the only person who noted how improbably appropriate her songs would be for this situation. They include:
“We’ll meet again, don’t know where,
Don’t know when”,
“Wish me luck as you wave me goodbye,
Cheerio, here I go”.
The last is perhaps even more to the point:
“Say that everything will turn up right,
It hurts to say goodbye”.
My Lords, we will certainly be meeting again, here, many times. On the next presidencies, my noble friend raises a very good point. I think that I am right in saying—in fact, I am sure—that the Government have offered support for the presidency of the Estonian Government if it were required. We are obviously in conversations with all the nation states that he has mentioned. We have been supported by them in making sure that we will continue to have a role in matters of substance that come to be discussed by the EU until we leave the EU, thereby fulfilling our role as a full member until the day we leave.
My Lords, in his foreword, the Secretary of State calls this White Paper a “plan”. Does the Minister agree that any plan worth the name requires a thorough cost-benefit analysis? Does he further agree that there is no such analysis in this White Paper or in the Statement or in the Prime Minister’s Lancaster House speech? There is certainly not a cost-benefit analysis of what operation under WTO rules would mean, what departure from the single market would mean, or what withdrawal from the European customs union would mean. All we have from the Government is the Statement this morning:
“We continue to analyse the impact of our exit across the breadth of the UK economy”.
What will they do when they produce those analyses? Keep them to themselves for fear of telling our counterparts in negotiation what we are thinking. Is it not clear that there is no compromise of our negotiating position in being honest with the British people about the cost-benefit analysis which is absolutely vital? In the absence of such a cost-benefit analysis, this White Paper is not a plan worth the name; it is a wish list.
The noble Lord makes his point with his customary passion and eloquence. I simply say that I am sorry but I disagree on that point. The British people were presented with a clear choice on 23 June. They were presented with different options. They made a choice. Furthermore, as your Lordships will know, the House of Lords European Select Committee earlier in the year said that parliamentary scrutiny of negotiations,
“will have to strike a balance between, on the one hand, the desire for transparency, and on the other the need to avoid undermining the UK’s negotiating position”.
That is our position and we will stick to it.
My Lords, chapter 9 in the White Paper sets out how, after we leave the EU, the UK will look to significantly increase its trade with the fastest growing export markets in the world. Does the Minister agree that a number of those countries already in the EU do significantly better with those export markets in the rest of the world? Why in fact are we waiting until after we leave the EU to start doing work on preparing to meet that competition? Why have we only heard from Dr Fox referring to lazy management in this country and have still not heard anything in detail from him? We have had the industrial strategy, which is as woolly a document as one could ever see—no specifics in it, no targets and no timetables. It is woolly in the extreme, like the people who have led the country out of the EU. When can we expect to get moving on a specific, timetabled and detailed analysis of how we are going to compete in the rest of the world? We do not need to wait until after we have completed the negotiations.
There are two separate points there. First, what are we doing to help UK businesses export, as we speak? There is an enormous amount of work going on on that front. The signs are already there that we are beginning to get great progress in our export markets around the world. That work continues. As regards the actual point that I think the noble Lord is getting at about the negotiations, he will be well aware of the duty of sincere co-operation, which ensures that we are therefore not able to start formal negotiations with non-EU countries until we have left the EU. The noble Lord may have a sense of impatience about that—I can sense it—but the reality is that we need to approach these negotiations in good faith and good will towards our European partners, and not seek to tear up or undermine the obligations that we face as a member of the EU today.
My Lords, on the question of trade agreements, given that there is a trend for intra-regional trade, has there been consideration given to starting a conversation with regional bodies such as the ACP, Mercosur, ASEAN and the Commonwealth? All the bilaterals engage with those regional bodies. Just to give an example, I encourage the Government to look at the Central American Association Agreement, which is an EU association agreement which encompasses trade, and to bring it into Parliament, because it has been stuck for a very long time without coming before the House.
The noble Viscount makes an extremely good point. Indeed there are a number of organisations like Mercosur and certainly the GCC which my noble friend Lord Price has I am sure been in contact with. We will continue to have conversations with those groups as well as individual member states. I would be happy to discuss that point with him in more detail.
My Lords, has my noble friend seen the latest report from TheCityUK stating that the EU has been a straitjacket on the City of London, which will have a once-in-a-lifetime opportunity to now do business with the whole world? The EU’s own leaked report from the monetary affairs committee says that the EU has to do a workable deal with the UK, because it is absolutely vital for all Governments in the EU to get access to the City of London. In these circumstances, will my noble friend tell the remaining remoaners to start having faith that this is a great country, and we can be an even better country once we are outside the straitjacket of the dying and declining EU?
My noble friend makes a good point. There is a growing realisation across many financial services, both in the City and elsewhere, about the means by which we can come to some workable arrangement that I hope is to our mutual benefits. I remind your Lordships of what the Governor of the Bank of England said a couple of weeks ago about the risks that Brexit poses:
“there are greater financial stability risks on the continent in the short term, for the transition, than there are for the UK”.
As my noble friend says, there is a growing realisation on these points and of how we might come to some workable solution in the future.
My Lords, is it not somewhat hubristic of the United Kingdom to offer to assist the Estonian presidency of the European Union, when we ourselves said that we no longer wanted to hold the rotating presidency of the European Union?
The key question that I wanted to ask was about the great repeal Bill—the great retrenchment Bill. Can the Government assure us that they are thinking through the implications of implementing all the regulations that are in place, bearing in mind that many entail reciprocity and the jurisdiction of the ECJ? How will we deal with that? Will the Bill look at that?
I am not going to go into further detail on that specific point now. As I have set out in the Statement, we will publish a White Paper and the noble Baroness is absolutely entitled to raise that point. Let us do that when we have the White Paper in front of us.
My Lords, I seek clarification of the Minister’s words—words that were on page 35 of the White Paper and on page 6 of his Statement—
“This negotiation will not be about bringing two divergent systems together. It is about finding the best way for the benefits of the common systems and frameworks that currently enable UK and EU businesses to trade with and operate in each other’s markets to continue when we leave the EU”.
Do those common systems and frameworks not in fact amount to the regulations of the single market? In fact, is this not a recognition that the single market will be our target?
Well, it is just a simple recognition that when we bring the EU acquis into UK law, we will therefore have exactly the same systems on both sides of the Channel. Then this House and the other place can in the weeks and years ahead decide how best to proceed.
My Lords, on page 63 of this White Paper, the Government say that they,
“remain committed to European security”,
and wish still to,
“add value to EU foreign policy and security policy”.
It goes on, of course, to talk about the civilian missions in Kosovo, Georgia and Ukraine, and says that those missions increased European stability. Is it the Government’s intention that, after leaving the European Union, we will continue to participate in common security and defence policy—not just good will but operations which the White Paper itself acknowledges have been so important?
The noble Baroness, again, makes a very good point. It is clear that a number of the operations under way confront significant challenges that are likely to continue way into the future. I am not getting into detail about how we can best continue those levels of co-operation but, as I have said before at this Dispatch Box, doing so will clearly in very many cases be in our national interest, as it will be in Europe’s interest.
My Lords, as a follow-up to the question just asked by the noble Baroness, I say that I am delighted that we have the words “new partnership”. Can we please enter these negotiations as talks with friends and allies? There is far too much underlying hostility. That must not prevail. We are to work with our friends and allies in a different way and capacity; some of us deeply regret that, but that is gone. Let us make sure that this is a new and positive chapter. Can my noble friend assure me that that will be the hallmark of the talks?
I completely agree with my noble friend. The whole spirit behind the White Paper and the Government’s approach is one of building a new partnership on the basis that there will be, as I said, issues on which it is absolutely in our national interest and those of member states right across Europe to collaborate and co-operate in the months and years ahead, and to enable our businesses both in the UK and right across Europe to continue to trade freely. As I also said, we enter these negotiations very much in a spirit of good faith and good will.
My Lords, first, I thank the Government for publishing the menu after the House of Commons has finished its dinner. I have a specific question about our withdrawal from the Euratom treaty, which has provided the framework for civil nuclear power and the management of nuclear waste in this country for the last 40 years. What communication have the Government had with the industry to assure themselves that the future of nuclear power on which their energy policy depends is still secure? What estimates have they made of the cost of creating a brand new regulatory framework to replace the one we are leaving behind?
All I will say on this point is that obviously we have had extensive consultation and talks with the nuclear industry. It remains of key strategic importance to the country and we have been clear that this decision does not affect our aim of seeking and maintaining close and effective arrangements relating to civil nuclear co-operation, safeguards and safety with Europe and the rest of the world.
My Lords, would the Minister acknowledge that it was a gross exaggeration for him to claim that our Front Bench statement represented a consensus about the White Paper? For example, on the question of the single market, the Government’s position is that they will not continue membership of it. The Statement repeated the catchphrase that they will seek an ambitious and comprehensive trade agreement with the EU. First, is that not what we have already? Secondly, are there not inevitably all sorts of attendant conditions to do with any trade agreement that are very similar to the arrangement with the arbitral role of the much-maligned European Court of Justice at present?
My Lords, I should set out that we intend to forge a new partnership with the EU that has different hallmarks from the relationship at the moment. To give just three examples, in our new relationship we will have the ability to take control of our borders, to be outside the ECJ and to be able to forge new free trade agreements with non-EU countries. That is the basis on which we will proceed.
My Lords, I welcome the fact that early on in the White Paper, Chapter 3 is headed “Strengthening the Union”. Did my noble friend see the statement made earlier this week by Mr Esteban González Pons, the leader of the ruling Spanish MEP delegation in the European Parliament? He said that if Great Britain leaves the EU, all of Great Britain leaves the EU completely. We know that Spain has problems in terms of Catalonia and the Basque country and that they cannot accept any kind of special solution for Scotland. Will my noble friend use the opportunity of the Joint Ministerial Committee to point out to the First Minister of Scotland that she must accept the result of the referendum, that the Spanish and others would veto any special deal, and that she should stop embarrassing Scotland by putting forward unworkable and confused policies and instead stick to her day job of trying to run a failing Administration?
My noble friend makes his remarks in his usual forthright manner. Clearly, the vote on 23 June was a vote for the whole of the United Kingdom. As the Prime Minister said, and I repeated today, our approach will be to negotiate in the interests of the entire United Kingdom, no part of which has a veto. We are looking at the proposals that my noble friend referred to and I hope that we will continue to have constructive conversations in the JMC.
My Lords, one subject that is not among the 12 principles and which I do not think has been covered in our own debates or reports is international development. The noble Baroness, Lady Symons, quite rightly brought up European security and the Minister said that he could not disclose any details. Could he undertake to talk to his colleagues about international development? We have a substantial programme with Europe and want to know, in advance, what will happen to it.
The noble Earl makes a good point and I am happy to meet him to discuss it. My only point in response is that I do not wish to go into the mechanism of how we might achieve our aim. As I have said many times, where the national interests of the United Kingdom and the interests of member states across Europe coincide, we will obviously proceed with an open mind and will be willing to co-operate and collaborate where possible.
What happens if the Minister’s optimism is somewhat misplaced? Does he agree that, in the event that he is wrong, this country must go its own way? In particular, might he form the view that the country is best served by being in the EU? I have been a member of the Commission for a very long time, as has my noble friend. Is it not important that an alternative view is put forward to the House by this Minister? I am not sure whether he is capable of that, but I think he will have a duty to put it forward eventually.
Brexit: Disabled People
Question for Short Debate
My Lords, I am very pleased to have secured time for a debate this afternoon on the impact that leaving the EU will have on people with disabilities. During the referendum campaign, little was said about this matter and I have heard very little since. But the implications for millions of disabled people and their families could be profound. The choices that will be made by the Government over the next few years about how we leave and what they choose to prioritise will be of enormous significance. I am grateful to the Papworth Trust for its thorough and calm analysis in its publication of last autumn, Brexit: What Next for Disabled People?
I declare an interest as a member of the advisory board of the National Council for Voluntary Organisations, as a vice-president of the Local Government Association and as patron of a local charity, Ace Anglia, which provides support and services to people with learning disabilities.
This is not the place to introduce a debate on the impact of Brexit on our economy overall. Indeed, it may be years before we can make a full assessment of that. But, if it is anything like as bad as some of us fear, the consequent deterioration in public finances could significantly reduce the amount of money available for benefits to disabled people and to the public services on which they are often dependent. The charity Scope estimates that 400,000 working-age disabled people are dependent on social care. It also reports that disabled people spend an average of £550 extra a month as a result of their disability. Clearly, these people have much less financial resilience to withstand a downturn and are more dependent on public services.
Of immediate concern is the loss of grants from European structural funds. According to the Academic Network of European Disability Experts, 19% of all European social fund grants are spent on projects directly supporting disabled people. To put that into context, the Papworth Trust alone received £7 million from that source between 2007 and 2016. The future sources of funding beyond 2020 are completely unknown. A quick glance at the White Paper published earlier suggests that the Government will meet some of these commitments—but only until 2020. That is a very short-term planning horizon.
Supporters of Brexit have always argued that the UK itself should be responsible for this kind of spending, not the EU. That is fair enough, but then we should expect to see some allocation of funds from the savings, whatever they may be, of no longer being members. To assist charities and other bodies with their forward planning, the Government should begin to offer some clarity about the post-2020 scenario.
There is a much deeper concern that a rush to deregulation, as a matter of either political choice or economic necessity to improve competitiveness, will reduce the statutory protections available to disabled people, especially with regard to employment and access rights. Anti-discrimination laws, while enacted by this Parliament, have their roots in EU law and could be removed by this or a future Government should they choose. The Government have set out, in outline at least, that their approach to unravelling the past 40 years of lawmaking in a European context will be the rather misnamed great repeal Bill. It seems to me to be a sensible approach to keep hold of the legislation that we currently have and to review it over time. This must be with proper parliamentary scrutiny and not just delegated to Ministers—although I am not convinced that the Government fully understand yet what a massive task this is, and the amount of Civil Service and parliamentary resource that will be required to perform it.
I will give some examples of what I mean. The blue badge scheme for parking concessions for people with disabilities is standardised across the EU. There is a comprehensive package of rights for disabled travellers on air and rail services. The charity Guide Dogs has pointed out to me that we have EU-mandated disability awareness training for bus drivers, and rules that ensure that electric and hybrid vehicles are audible. These are important matters and we need to make sure that they are not accidentally or deliberately lost in a wholesale bonfire of EU law.
The employment equality framework directive is a major component of EU labour law and combats workplace discrimination on the grounds of disability, as well as gender, age, race and sexual orientation. It will be a matter of choice for the Government as to whether they wish to hold on to these protections and, crucially, to what extent they are prepared to work with the groups representing the interests of disabled people to make sure that their needs are fully understood.
We are all aware that there is a social care crisis in this country, which is completely interwoven with the serious problems facing the National Health Service. There is no time in this introduction to detail concerns about the loss of EU migrants to the health and social care sector, although other noble Lords may have more to say on this. An estimated 130,000 EU citizens are working in the health and social care sector, so this is a major issue. There is already evidence that a combination of uncertainty about future arrangements and the increased instances of racially motivated attacks is making it harder to recruit into this sector. The fall in the value of the pound is making the UK a much less attractive option. Given that there is already a vacancy rate of around 5% in the care sector because of the low pay and unsocial hours, any deterioration here is a matter for concern. The charity Sense estimates that currently 108,000 learning disabled people with moderate to severe needs receive no support whatever. It would be catastrophic if this were to get any worse.
Health is of course mainly a national competence and there has never been an attempt to provide uniform services across the EU 28. However, there are some rights that exist across the EU that may now come into question. Because disabled people are more likely to use healthcare services, they could be affected more. All EU citizens can access each other’s health services free of charge using the European health insurance card. Will a continuation of this scheme be a priority for the Government? The UN estimates that around 1.2 million British citizens live and work in the EU. If we restrict the rights of EU citizens to the NHS, of course the same will happen to ours.
What will happen to the large number of pensioners, some of whom are disabled, currently accessing health services in places such as Spain and Cyprus? If the scheme is not to be continued, the Government will need a massive campaign to make sure that British tourists have adequate health insurance when they travel. For people with disabilities, getting such insurance can be very difficult and costly, and the Government will need to take this up with the insurance industry.
I understand that there is an NHS Europe transition team. I would like the Minister to assure us that disabled people are being consulted and involved in the thinking about what the implications might be of the different outcomes and options being considered by the Government. There are many tricky issues to be considered and resolved, and some of them will be part of the terms of departure that we agree with the EU. Others, such as co-ordination rules for social security, can be done bilaterally and could, if we are not careful, result in a bureaucratic nightmare.
We will still be Europeans and it makes no sense to turn our back on everything. It is estimated that there are 70 million disabled people in Europe, and a well-established network of research and development projects in which UK organisations have been active. It is an absolute priority to remain within those networks and funding programmes if we are not to lose the very real progress that we have made in understanding and treating the disabilities themselves and, crucially, in helping disabled people to live more fulfilled lives.
My Lords, we should thank the noble Baroness, Lady Scott of Needham Market, for initiating this debate. While the referendum campaign provoked some discussion around the significance for disabled people of remaining in or leaving the EU, these matters were not centre stage in our national debate. There was neither a specific reference to what Brexit may mean for some 10 million-plus disabled people in the January pronouncement of the Prime Minister nor a single word in the White Paper that has been issued today.
We are in the impossible position of being asked to start the process of exiting the EU without any clear idea of where it will end—except that the Government have given up on membership of the single market and the customs union. History will reflect with incredulity on how we got into such a mess. There is real concern that the future for the UK outside the single market will make us poorer as a country than we would have been over the long term. The OBR has made the judgment that any likely Brexit outcome will lead to lower trade flows, investment, net inward migration and potential output. All this has adverse implications for the public finances and our social security system, already battered by austerity.
I agree with the noble Baroness, Lady Scott, that we should be grateful to the Papworth Trust for its briefing on the key issues affecting disabled people and the EU. We should acknowledge the importance of the EU to date in bringing down the barriers faced by disabled people—for example, in improving access to public buildings and transport, and supporting employment programmes. Indeed, 19% of ESF grants are spent on projects that directly support disabled people. This is not to deny the role of the UK in leading the way on disabilities legislation but to recognise that the EU directives and the treaties that we have signed underpin discrimination laws.
Once outside the EU, the UK will lose the underpinning of EU equalities legislation and the oversight by the European Court of Justice. Can the Government at least confirm their intention on membership of the Council of Europe and the European Court of Human Rights? Commitments to enshrine all existing EU legislation into domestic law, the so-called great repeal Bill, are welcome but this does not mean that these rights will be sustained over time. Moreover, being outside the EU means that the UK could be left behind on future developments, such as the planned EU-wide European Accessibility Act. Would the Government support embedding the UN Convention on the Rights of Persons with Disabilities, which we ratified, into domestic law?
We know that disabled people are heavily reliant on the NHS and social care services, and we know that these services are heavily dependent on migration from the EU. We also know that there are horrendous recruitment problems in the sector. Restrictions on free movement will only exacerbate these. It is imperative, therefore, that the status of EU nationals working in the UK is clarified as a matter of urgency, to help retention. There is also a need for a clear strategy for the future.
We should not overlook the capacity issues in all of this—for the Executive, Parliament and the Civil Service—specifically in relation to plans for EU legislation that is currently directly applicable but which has to be converted into UK law. The House of Commons Library note suggests there could be some 5,000 pieces of legislation. I ask the Minister to provide us—in due course but, I hope, as soon as possible—with a list of all those which touch on matters relevant to disabled people. When ministerial red boxes are being stuffed full of Brexit matters, who will focus on delivering the halving of the disability employment gap?
My Lords, leaving the EU is very much a disability issue, with hidden risks that were not aired much during the referendum campaign. Therefore, I am most grateful to the noble Baroness, Lady Scott, for introducing this really important debate.
As time is short, I will concentrate on the area I am most familiar with: the workforce which facilitates independent living for disabled people such as me. I declare an interest as someone who has employed personal assistants from at least 10 EU countries during the past 25 years. I am not unusual. There are thousands of disabled people who do the same. Our personal assistants—some call them carers—are a mixture of UK and EU nationals. They are crucial to our independence and our freedom to enjoy a private and family life, to work, to socialise and to raise children. Our employees are funded mainly by social care or healthcare personal budgets. During the past 30 years, increasing numbers of disabled people have become employers.
When preparing for this debate, I searched for data on how many EU nationals were employed as personal assistants. I contacted the United Kingdom Homecare Association and independent living PA agencies, such as Independent Living Alternatives and PA Pool. No specific data were available but we know there are more than 70,000 EU citizens working in social care. I then contacted disabled employers through social media platforms to find out more about their reasons for seeking personal assistants from EU countries.
Everyone I heard from said first that the pool of potential UK employees was drying up, yet demand for care workers continued to rise. The EU workforce was therefore an essential supplement, and all were concerned about moves to restrict it. Other reasons given for recruiting EU nationals were a strong work ethic and reliability, and the fact that the job tends to attract single people, who, as a rule, are found to be more flexible in their working hours, giving much-valued opportunities for spontaneity. They are keen to fill live-in employment positions. This helps disabled people who live in rural villages where local employees are limited. Some commute to and from their home countries between work stints. Such flexibility is a win-win situation for both employers and employees.
I spoke also to John Evans, a quadriplegic man and pioneer of independent living for disabled people in the UK and internationally. He said:
“I have been free from residential care for 34 years, employing my own PAs who support me to have full control of my life. They have come from 15 different EU countries. Without their support I could not do my work at home and abroad. If the Government does not make some kind of arrangement to protect our access to the EU PA workforce, I will lose my freedom again”,
and he will have to return to residential care. We constantly hear about the threat to the NHS if restrictions to work in the UK are tightened. The PAs and carers employed by thousands of disabled people must be accorded the same attention; otherwise, the current social care crisis will worsen and disabled people will lose the right to independent living, as set out in Article 19 of the UN convention.
The Equality and Human Rights Commission shares my concern. In its evidence to the Joint Committee on Human Rights’ Brexit inquiry, it said that any change in Immigration Rules,
“should be subject to a rigorous equality and human rights impact assessment”.
Will the Minister assure the House that this assessment will be carried out rigorously and shared with Parliament? Will he also guarantee that disabled people and their organisations will be thoroughly involved in any Brexit developments regarding access to the EU workforce? Our independence depends on it.
My Lords, there are certain debates in which you discover quite happily that someone else has done the heavy lifting for you. I thank my noble friend for that. What strikes me about this debate is that it is not about the big acts of principle because when it comes to disability, this Chamber—and, indeed, the whole British Parliament—handles it pretty well. It is the small things. It is the stream of regulation that we are always struggling with to make those big acts of principle count.
I remember when we were dealing with small concessions in regulations about transport, people from all Benches coming up to me and saying, “It is really inconvenient to make sure that the displays at stations are the right size, that we have the easiest tables to fold down to change a baby on, that the toilets are accessible”—there is always a good reason why not. That gets easier and easier to ignore when you have a smaller machine driving it, when you have people saying, “It is very inconvenient regulation for me”. If you do not have real weight and determination behind it, or an energy, it gets picked off.
People will say, “That is red tape. It gets in the way”. One of the many things I have covered in your Lordships’ House is health and safety. I came to the conclusion that everybody was against health and safety regulations until their child was up a ladder. It will be inconvenient for you until you have a disabled child or a disabled parent who needs that support. We need a clear guide and energy here, with the Government prepared to commit time, resources and, indeed, political capital to standing up to people like that. It is going to get more difficult because the EU is a convenient punchbag, let us face it. We can duck round it and say it is the EU’s fault, not ours—“We have to do it, I’m afraid”. If anybody has not seen that here, I can take them through a few events. I will not do that now because no one has annoyed me quite enough to do it. But that happens and unless the Government are prepared to publicly start taking on the responsibility for those unpopular small decisions with certain sectors, we are going to fall down here.
The Papworth Trust report points out that the drive from Europe means there is a focus. You have to come behind it grumblingly, saying, “Oh, I wouldn’t do this but I appreciate you have problems”. You have to take it on. Unless the Government are prepared to look for a cross-party consensus about how we go about this, we will get into trouble. The disabled are one group but others will suffer as well. We must take on the fact that this unpleasant grind to make sure that things are accessible and easy to use is there. If we do not do that, we will jump from events where we have a big, dramatic event—“We’ll make a change. Oh, that doesn’t work. It’s out of date, we’ll have to go back”. That is inefficient and inconvenient for those who happen to have their lives disrupted in a large way in that process.
My Lords, I thank the noble Baroness, Lady Scott, for securing this debate and giving us the opportunity to discuss this important question. When we debated the question of withdrawing from the EU last June, I said it was clear to me that disabled people would get a much better deal by remaining within the EU. In my experience, it has always been possible to get much more for disabled people from the EU than from our own Government, of whatever complexion. Now that we have decided to leave, it is important to make sure that the benefits disabled people presently derive from being in the EU are maintained by the United Kingdom.
Most of the benefits come from the single market. To take just three examples, first, in 2014 disabled people successfully influenced the revision of the EU’s public procurement directive. Accessibility is now a mandatory criterion for all public tenders above a certain financial threshold. According to the European Commission, public procurement accounts for 14% of the EU’s GDP. At home, according to a 2015 House of Commons briefing paper, in 2013-14 the UK public sector spent a total of £242 billion on procurement of goods and services—33% of public sector spending. In sectors such as energy, transport, waste management, social protection, and health and education services, public authorities are the main buyers, so public procurement regulations offer a substantial lever for improving accessibility and bringing about change, just as they did in the United States many years ago.
Secondly, on the accessibility of the world wide web, despite strong resistance initially from national Governments, we now have a directive that ensures the accessibility of all public sector bodies’ websites. It covers their mobile applications and includes an enforcement mechanism. This means that disabled citizens can access e-government services right across Europe. In conjunction with the previously mentioned new rules on public procurement, this directive ensures that industry delivers digital solutions that are accessible to all. We already have European standards for accessible ICT, but technology is moving very rapidly in this area and it is good to have this new legislation to ensure that disabled people are able to keep up.
Finally on accessibility of goods and services, the European Commission has now tabled a proposal for a directive that would harmonise accessibility requirements across the EU for a wide range of goods and services, including smartphones, computers, ticket machines, ATMs, retailers’ websites, banking, e-books and associated hardware such as Amazon’s Kindle, and audio-visual media services and related equipment. Travel-related information is also included. Items not complying with the standards will not be able to be brought to market. This proposal does not include everything one would want and is still under negotiation—it does not include white goods such as washing machines and microwaves, for instance—but it goes much further than anything we have in this country. In the UK, the Equality Act does not apply to manufacturers and manufactured goods.
The noble Baroness, Lady Scott, referred to concerns that withdrawal from the EU will put at risk the implementation of disability awareness training for bus drivers as well as measures to ensure the audibility of electric and hybrid vehicles. Regulations requiring bus drivers to undertake disability awareness training are due to come into effect in 2018. The requirement was due to come into force in 2013, but the Government made use of a derogation to delay it. It would indeed be a perverse result of Brexit if, instead of being just delayed, the regulation was lost altogether.
The EU regulation on sound levels of motor vehicles would mean that all new quiet vehicles must be fitted with an acoustic vehicle alerting system, or AVAS, by 2021. But again, it is now unclear whether this regulation will be incorporated into UK law once the UK has left the EU. Will the Government commit to the introduction of disability awareness training for all bus drivers and to ensuring that all quiet electric and hybrid vehicles are rendered audible, with a clear deadline for installing acoustic vehicle alerting systems on all quiet vehicles?
From the point of view of disabled people, there can be no doubt that it would make sense for the UK to remain a member of the single market. If we do not, and if we are to safeguard the interests of disabled people, we need, on Brexit, to bring across as many of the benefits of the single market as possible. I trust that the great repeal Bill will do this and that we will choose to hang on to as many of the benefits thus transposed as possible.
I too am grateful to the noble Baroness, Lady Scott, for giving us the opportunity to reflect on this important subject. For many years, the European Union has been an important driver of disability rights in the UK, helping to improve disability access and strengthen non-discrimination laws right across Europe. It was the European Union that ensured non-discrimination laws were extended to smaller businesses, and the European Court of Justice which extended rights to carers and those in relationships with a disabled person, to name just two examples. With the proposed European Accessibility Act still some time away from implementation, I hope the Minister can understand the fear expressed by many in this House and outside it that a post-Brexit UK may start to fall behind its European counterparts when it comes to disability rights.
Britain, of course, has a proud history of disability rights, but that is no guarantee of future progress. Indeed, in this time of cuts and savings, there will be great pressure on Her Majesty’s Government to ensure that those with disabilities take their “fair share” of the cuts. Despite the admirable rhetoric on cutting the disability employment gap, it is significant that one of the few policy changes of substance thus far has been to dramatically cut the benefit entitlements of disability benefit claimants in the work-related activity group. The Government’s policies, such as including disabled people within the underoccupancy charge and restricting the eligibility criteria for personal independence payments, are further trends that make many of the disabled people I have spoken to fearful for the future of disability rights outside the EU.
As we move towards Brexit, it is absolutely essential that Her Majesty’s Government give disabled people confidence that the UK will be a world leader in disability rights, showing the way forward rather than lagging behind. Although we have made significant progress over recent decades, there is still a long way to go in securing full accessibility and rights for disabled people in our country. This can be a particular problem in rural areas—I declare my interests as president of the Rural Coalition—where many people with disabilities still struggle with accessing basic services, particularly public transport. People in rural areas can also struggle to access adequate care services, something which may become even harder if and when the UK Government introduce immigration restrictions on those EU residents who make up a significant proportion of our caring workforce.
I realise that the Minister will today seek to reassure the House that any existing EU disability rights legislation will be incorporated into British law through the great repeal Bill. But I hope he will be able to go further than that, and reassure us that Her Majesty’s Government recognise there is still a huge amount of work to do and that there is a determination to take this forward.
My Lords, I thank the noble Baroness, Lady Scott of Needham Market, for securing this debate. Many people are tired of hearing that Brexit means Brexit. This debate may give some insight into what disabled people are thinking. It seems a long time since I made my maiden speech on what became the Chronically Sick and Disabled Persons Act 1970. I have been surprised by how much legislation there is concerning disabled people incorporated in the European Union. Britain has helped to lead the campaign for better protection for disabled people. It will be a tragedy if, ostracised from Europe, we become an isolated island. As far as disability issues are concerned, I feel that Europe needs us and we need Europe.
I hope that the Minister will give us some reassurance today. Many disabled people are frightened at this time. Diabetes can be a serious disability if not controlled. Will such research as the DIAMAP project, the Alliance for European Diabetes Research, funded by the European Commission, still be available for members from the UK? The European Commission funds many important research projects to find ways of preventing disability. Does Brexit mean that we will no longer be part of the European Disability Strategy 2010-2020, a renewed commitment to a barrier-free Europe? Will the blue badge for disabled drivers or passengers, a European project, still be available?
I am very concerned when I hear members of the Government say that we want to let in only the brightest people when Brexit takes place. This will be a disaster for disabled people who need help. We have many disabled people, some of whom can work, but they need carers who can help with personal care and mobility. We do not have enough British people who want to do such jobs. We need the many young, fit people who come from the EU who are honest and want to work. They do not need to be high-fliers but they need to feel wanted and to be cherished. Otherwise, with a low pound and abuse, they will not come. The Government have a responsibility to enable disabled people to live as independent lives as possible.
My Lords, I leap briefly into the gap. I declare an interest as trustee of several charities, notably the Ewing Foundation for deaf children. Brexit changes Britain, but we do not know exactly how. The negotiations have barely started; all we have are our worries and our hopes. While we in this House will in future be considering a positive mountain of regulations, we know that we will have the benefit of many Members with personal knowledge of disability. I doubt there is a legislative chamber in the world with such effective and numerous representation of disabled people. The further point, however, is to make certain that the voice and opinions of disabled people are heard and thought about when regulations are formulated, not just at this legislative stage.
My Lords, this is a timely debate. Thanks to my noble friend Lady Scott, we have heard forcefully this afternoon some of the real worries about Brexit both from disabled people themselves—I am one—and others. Perhaps the main one concerns what will happen to the thousands of personal assistants from the EU who give top-quality care to severely disabled people if there is no free movement. Who knew, before the referendum, that Brexit might mean that all the EU directives, which have made life so much better for disabled people travelling throughout Europe, for example, or even accessing public sector websites, might have to be negotiated all over again? Or will they? Who knows?
There is now a terrible uncertainty about what will happen in the future. Will we have reciprocity for all the working people from the EU who are settled in this country to stay after Brexit? This is perhaps the greatest worry for many disabled people, as they are now used to the high standards and attitudes of many EU care workers, as the noble Baroness, Lady Campbell of Surbiton, has said. I must straightaway ask the Minister whether he thinks there is any chance of an exemption from the restriction on the free movement of labour for staff in social care and NHS services. I repeat my noble friend’s question about whether there are any disabled people on the NHS Europe transition team.
The word “reciprocity” is very important in the field of social security as well as care. There has been a long-standing provision in EU law to co-ordinate social security schemes for people moving within the EU and EEA. This is a very important protection for disabled people who may want to reside in other EU or EEA member states. These co-ordination rules, such as allowing a person’s contributions paid in one country to count towards entitlement to benefit in another country, or allowing certain benefits to be taken abroad with them, are there to support free movement. What will happen in the future? What about those people who have lived and worked in more than one member state and paid national insurance in those countries?
At present, a person who moves from one member state to another has access to benefits in the host country if they are economically active or can support themselves. Working EU and EEA migrants are entitled to in-work benefits on the same basis as nationals of the host country, but this could all change. Will the Minister say which department is in charge of these negotiations? If there is no certainty for many months, quite a lot of disabled UK nationals living abroad are likely to return to the UK, where they may well need care services and quite possibly supported housing, thus adding to the strain that services are experiencing.
I turn briefly to the great repeal Bill, which, as we know, will annul the European Communities Act 1972 and transpose EU law into domestic law. The difficulty will come when the Government decide which laws will be scrapped altogether. The wretched Red Tape Challenge does not give us any confidence, as the report of the Equality Act 2010 and Disability Committee makes clear. This is about regulations being burdensome; it does not seem to matter that their disappearance might make life more burdensome for disabled people. So we are particularly concerned about hard-won rights in the fields of, for example, product design, air and rail travel, employment, building accessibility, public sector website accessibility and many others. Can the Minister assure us that disabled people will be in the forefront of negotiations on any matter that affects them directly?
My Lords, this fascinating brief debate serves to highlight the enormity of the task facing both the Government and Parliament in the months and years ahead, as we seek to understand and then deal with all the implications of the decision to leave the EU. Will the Minister tell the House how the Government propose to enable us to scrutinise the issues as they start to emerge? Will there be pre-legislative scrutiny of the great repeal Bill to ensure Parliament is sighted on the areas where the Government are unable or unwilling simply to transfer current provision across, or where, as various noble Lords have mentioned, there is a need for some regulatory or enforcement mechanism that is currently Europe-wide?
Like my noble friend Lord McKenzie, I read the White Paper carefully—I even searched the electronic version—and I could not find the words “disabled”, “disabled people” or “disability” anywhere in it. Will the Minister tell the House how much thinking the Government have begun to do on the impact on disabled people of the decision to leave the EU? Has his department developed a strategy to engage with key stakeholders in the field and, through those stakeholders, directly with disabled people, both to consult them and to reassure them that it is engaged with the issues? My noble friend Lord McKenzie made some important points about the commitment to enshrining long-term protections for disabled people in our law. Will the Minister also commit to enshrining in law those protections for disabled people that currently derive not from EU legislation but, for example, from judgments of the European Courts?
The question of transport was raised by the noble Baronesses, Lady Scott and Lady Thomas of Winchester, and the noble Lords, Lord Addington and Lord Low, among others. I should be very interested in the answers about blue badge recognition and accessible transport, raised by the noble Lord, Lord Low.
The matter of health and social care is absolutely crucial. Disabled people have a higher than average need to access health and social care. We have heard already about how many disabled people will be accessing health services in other EU nations and are very anxious about what will happen next. The noble Baroness, Lady Scott, mentioned the EHIC. What are the Government doing about that? Are they beginning negotiations on this—how high on their priority list will it be? If not, what will they do to enable disabled people to obtain appropriate insurance care? Have they begun discussions with the insurance industry or representative bodies in the financial services sector?
The question of social care is the one that exercised noble Lords most. We have heard all kinds of figures. The one I drew out from the Skills for Care website suggests that there are currently 90,000 EU nationals working in adult social care in England alone—some 7% of the workforce. Can the Minister give the House a definitive figure for how many non-UK EU nationals are working in social care, and tell us what he intends to do to ensure that that workforce is protected? Do the Government have a plan to enable those people to carry on working? Obviously, I think they should allow all EU residents who are settled here to carry on, but what are the Government doing specifically about social care?
I am grateful to the noble Baroness, Lady Campbell, who always takes these issues and gives them such a clear reality when she describes her own experience of what it means in practice for one after another EU national to come in. The point she made is crucial. This is not a technicality but the difference between disabled people living independent lives and not living independent lives. The Minister should hear how concerned people around the House are about this. What do the Government plan to do?
The noble Baroness, Lady Thomas, raised the really important question of social security entitlements. What do the Government plan to do about the entitlement to benefits of disabled EU nationals who have been resident in the UK? Conversely, do Ministers have a plan for dealing with the benefit entitlement of disabled UK citizens who have been ordinarily resident in another EU state? If they suddenly have to return to the UK, will they be entitled to full support? What comes through crediting towards benefit entitlement if time is spent in another EU country?
I would be interested to hear the answer to the question on ESF funding, and how disability organisations will be protected in the longer term, past 2020. We have only just begun to scratch the surface. The House needs to hear from the Minister today, first, some hard answers to questions. The Government have had seven months to think about these issues, and we look forward to hearing what they have to say. Secondly, we want to know that the Government are taking this seriously. It is not just a question of each department looking at regulations in silos. Who in government is taking responsibility for having a strategic look at the impact of Brexit on disabled people as a whole, making sure that nothing is missed and, ideally, doing what the right reverend Prelate the Bishop of St Albans said and showing that the UK can be a leader in this field? That is the very least we deserve to hear.
My Lords, I thank the noble Baroness, Lady Sherlock, for her request that I answer quite as many questions as she put to me. She will be faintly disappointed that, because of time constraints, I will be unable to answer absolutely everything that has come forward in the course of this debate, but I will certainly give an assurance that I will write to all noble Lords giving answers to questions that I cannot touch on in the necessarily brief speech that I have time to make.
I also offer my thanks to the noble Baroness, Lady Scott, for giving us the opportunity for at least airing—I think that is the best word—this subject initially on this occasion and acknowledging the deep concern felt all around the House. I hope that I can deal with some of the misconceptions and fears that have been expressed. I also want to give an assurance to the noble Baroness, Lady Scott, my noble friend Lord Borwick, and others that, first, there will be considerable consultation as and when appropriate, as there always has been by the department that I have had the privilege of rejoining after so many years.
I also give an assurance again, particularly to the noble Baroness, Lady Sherlock, that there will be considerable scrutiny by Parliament of these matters. She might find that she gets rather sick of the scrutiny by the end, because we all know that there will be scrutiny this Session, and possibly once we get the great reform Bill next Session, and the Session beyond. She will acknowledge that our strong parliamentary system provides more than enough opportunities for parliamentary scrutiny both in this Chamber and in the other Chamber—where the Bill has already started and will be coming here after our break—and through the inquiries being conducted by a great number of Select Committees in another place. I am thinking particularly of the recent inquiry from the Women and Equalities Select Committee on ensuring strong equalities legislation. That will provide the appropriate scrutiny for these matters that the noble Baroness rightly seeks.
I start by stating clearly that this Government have a firm commitment, made clear in our manifesto and later on, to maintaining the United Kingdom’s strong and long-standing record of protecting the rights and traditional liberties, and to supporting disabled people to fulfil their potential. The decision to leave the European Union does not change this, and officials in the Department for Work and Pensions, in which I have the honour of serving, and in other departments will be working closely with all colleagues, and particularly with the Department for Exiting the EU, to ensure that the impact on disabled people is considered fully.
I can assure the House of the protections covered in the Equality Act 2010, which we should remember—I shall not say merely, because it added more things—consolidated all previous legislation. We have legislation going back a long way to the ground-breaking Disability Discrimination Act 1995. I was grateful to the noble Baroness, Lady Masham, for mentioning the Chronically Sick and Disabled Persons Act 1970, on which she made her maiden speech. That Act predates our accession to the EU by some years, which shows how long we have been involved in this field, in which we have a long and proud history.
The right reverend Prelate used those very words when he said that we had a proud history. He wants us to be a world leader. I can give an assurance that we are a world leader. We were a world leader with legislation such as the Disability Discrimination Act 1995, and we will continue to be a world leader. I hope that the right reverend Prelate will see that stepping forward yet slightly further with the Improving Lives Green Paper. That is something we are committed to do, and my right honourable friend the Prime Minister and others have made clear their commitment in this field.
As my right honourable friend the Prime Minister stated in her speech on 17 January, the Government will continue to work to ensure that the UK is a fairer society. I am sure that the whole House agrees that that should include disabled people to ensure that they have the right support and full access to opportunities provided by my department and other departments. We were reminded by the noble Lord, Lord McKenzie, that we made a manifesto commitment to halve the disability employment gap. That commitment is evidence of the importance the Government place on their duty to support disabled people to fulfil their potential. We intend to meet that commitment as far as possible.
Having a disability should not determine the path someone is able to take in life—in or out of the workplace. What should count is a person’s talent and desire to succeed. It is good to be able to report that, in terms of that commitment, we have already seen 600,000 more disabled people in employment than in 2013, and that is progress and an example of where we are going. The problem is that employment in other areas has also gone up and, therefore, the gap has not narrowed as much as it should, but we are going in the right direction and the fact that we have more disabled people in employment is a good thing. We want to see the gap narrow as well—but narrow while both are going up, rather than narrow while they go down. I am sure that the noble Lord, Lord McKenzie, would accept that this is the aim that we should pursue.
Since the new Disability Confident scheme launched on 2 November 2016, we have seen more than 3,500 employers sign up to it, including some big employers such as Jaguar Land Rover, Barclays, Channel 4 and Fujitsu. They all recognise the important point that the talent and skills that disabled people can bring to their organisations should be recognised. This improving picture is very encouraging, although there remains much more to be done. That is why the Improving Lives Green Paper, which I touched on, seeks to start a far-reaching national debate by: working even more widely to change employers’ attitudes; trying to get systems across the department and the health service—obviously we have to work across government—working together better; encouraging everyone to focus on disabled people’s strengths and abilities; and introducing an accessible information requirement for local buses.
As I said, we have a proud history of leading the way internationally. If one looks at, say, the EU standards for making rail vehicles accessible, they are modelled on our own UK standards. To give one small parochial example, our very own city of Chester won this year’s European Union Access City Award. Through our international development aid work, the UK actively helps other countries to support disabled people. We recently joined the International Disability Alliance to create the Global Action on Disability group to stimulate more action on disability globally. I can assure the House that this Government will continue working towards the best possible outcome for all the people of the United Kingdom, which obviously includes people with disabilities.
There has been considerable concern about the impact of immigration changes to the recruitment of carers and workers from the EU—as raised by the noble Lord, Lord McKenzie, the noble Baroness, Lady Scott, and the noble Baroness, Lady Campbell; others have also touched on it—and I understand the concerns. The precise way in which the Government will determine how to control the movement of EU nationals to the UK after Brexit has obviously yet to be determined. We are considering very carefully the options open to us, following Brexit, to gain more control. As part of that, it is important that we understand the impact of any changes that we make on the different sectors of the economy and the labour market, including on health and social provision. But I assure the House that this is a matter that will be foremost in our minds in negotiations and thereafter.
The noble Lord, Lord McKenzie, also touched on the Council of Europe and the European Court of Human Rights. I can assure him that there is no intention whatever to withdraw from the Council of Europe, and we will still be subject to the European Court of Human Rights which, as the noble Lord knows, has nothing to do with the EU. That court long predates our membership of the EU but is possibly one of those popular misconceptions that should have been laid to rest many years ago—I see that the noble Lord and one or two others nodded at that. I can also give an assurance that we will continue our commitment to the UNCRPD; there is no question of any change in procedure on that.
I appreciate that there are a great many other questions on which I will need to write to noble Lords. The nature of these debates, as I said at the beginning, allows us to air the subject only briefly, so I shall therefore be writing a number of letters. I again express my gratitude to the noble Baroness, Lady Scott, for bringing this Question to the House today and thank all other noble Lords for their excellent contributions.
Ensuring that disabled people have the support that they need and the opportunities to fulfil their potential continues to be an incredibly important issue. It is one that the Government have repeatedly demonstrated their commitment to, as did previous Governments—it is a commitment that this and previous Governments can all be proud of. I can confirm that officials in my department are already engaged in those discussions that I mentioned with officials in other departments to ensure that disability issues are given due consideration. Exiting the European Union, whatever our future relationship with the EU, will not diminish that commitment to making the United Kingdom an accessible, equal and fair society.
Digital Economy Bill
Committee (2nd Day) (Continued)
Relevant documents: 11th and 13th Reports from the Delegated Powers Committee
Amendments 54D not moved.
Clause 17: The age-verification regulator: designation and funding
Amendments 55 and 55A not moved.
Clause 17 agreed.
Clause 18: Parliamentary procedure for designation of age-verification regulator
Amendment 55B not moved.
Clause 18 agreed.
Clause 19 agreed.
Clause 20: Enforcement of sections 15 and 19
56: Clause 20, page 21, line 21, at beginning insert “If the person in contravention of section 15(1) is resident in the United Kingdom,”
My Lords, I wish to speak to Amendments 56, 58 and 65, which stand in my name and that of the noble Baroness, Lady Howe of Idlicote. At Second Reading, I made clear my concerns about how Part 3 would be enforced. Given the wide-ranging scope of the Bill, I did not expect to get detailed answers to my questions when the Minister wrapped up the Second Reading debate on 13 December. However, I am disappointed not to have received any subsequent reassurances from the Minister about my concerns and I therefore raise the same points again today, in the hope of receiving some concrete answers.
Part 3 of the Bill relies on three enforcement mechanisms, one of which is IP blocking, in Clause 23, which I support but will leave others to discuss. I am concerned about the other mechanisms, which many hope will be used before IP blocking is even considered. My Amendment 56 is to Clause 20, which allows the age verification regulator to impose a fine of either a maximum of £250,000 or 5% of the qualifying turnover. How will this power operate if the website which is not in compliance with the age verification requirements of Clause 15 is based outside the UK? I am not the only noble Lord to have this concern. At Second Reading, the noble Baroness, Lady Benjamin, said that she was concerned about how the Government would be able to ensure that overseas sites would pay these fines. The noble Earl, Lord Erroll, with all his experience chairing the Digital Policy Alliance, also said that:
“One of the things that became apparent early on was that we will not be able to do anything about foreign sites”.—[Official Report, 13/12/16; col. 1214.]
As it seems unlikely that the Government will be able to collect fines from individuals outside the United Kingdom, my probing amendment, Amendment 56, would make that position explicit by ensuring that fines can be imposed only on someone resident in the UK. I would very much like to be proved wrong, but there is no evidence yet as to how this policy will be successfully enforced.
In another place the right honourable Matt Hancock acknowledged that fines would not always work abroad, but said that there were international mechanisms for enforcing them in some countries. I hope your Lordships will bear with me if I repeat a quotation that I also cited on Second Reading. Mr Hancock said:
“We want to be able to fine non-UK residents—difficult as that is—and there are international mechanisms for doing so. They do not necessarily reach every country in the world, but they reach a large number of countries”.—[Official Report, Commons, Digital Economy Bill Committee, 20/10/16; col. 217.]
I repeat the question I posed on Second Reading, and I hope the Minister will set out a detailed explanation of what these international arrangements are, and how they will work. I hope that he will quote chapter and verse on which jurisdictions in the world can be reached by these arrangements, and how easy it would be to use those mechanisms in relation to a site in a foreign jurisdiction to which the said international arrangements apply.
I should stress that this is a probing amendment. I am not saying that if this provision does not work in all jurisdictions it should be removed. If it works in some foreign jurisdictions it is worth keeping, although clearly in that context, the extent of its benefit will be limited by its international reach. I simply want to press the Minister to explain how it will work and in what foreign jurisdictions it will apply.
Given my concerns about the limited utility of the fines mechanism, Amendments 58 and 65 are intended to strengthen the second enforcement mechanisms in the Bill. Financial transaction blocking is set out in Clause 22, the premise of which is one of disrupting the business model of websites. The Minister in another place said:
“Our view is that enforcement through disrupting business models is more powerful because you are undermining the business model of the provider.” —[Official Report, Commons, Digital Economy Bill Committee, 20/10/16; col. 199.]
In practical terms, if a website is not in compliance the age-verification regulator can inform financial transaction providers and ancillary service providers, such as those who support websites with services like advertising, that a website seeking access to the UK market is acting in violation of UK law, and the intention is that these businesses will withdraw their services. Admirable though that sounds, I am not convinced that Clause 22 as it stands will disrupt the business model of websites, because, as I said on Second Reading, Clause 22 does not require the regulator to relay information on non-compliance to financial transaction providers. My Amendment 58 would require this information to be provided to financial transaction providers and ancillary service providers, by amending subsection (1).
Clause 22 does not empower the regulator to require providers not to process transactions with such sites either, nor does it make any demands of the providers to take any action against a non-compliant website. My amendment would place an enforceable duty on payment providers and ancillary service providers to take action against a non-compliant website, similar to the duty in Clause 23, once they had been notified of a non-compliance.
In the Government’s response to the consultation on age verification, they said that they do not think it would be appropriate or necessary to place a specific legal requirement on these payment providers to remove services, basing this on their stated belief that they can rely on such companies to block transactions because their terms and conditions require merchants to be operating legally in the country they serve. Similar statements were made by the Minister in Committee in another place.
On Second Reading I noted that exactly the same arguments were used during the passage of the Gambling (Licensing and Advertising) Act in 2014. At the start of 2017, the evidence on the effectiveness of the reliance on payment providers is far from reassuring. According to a parliamentary answer on the detail that the Minister gave on 12 January, transactions have been blocked for only 11 gambling websites. That seems a very low number to me. One of the difficulties is that depending on terms and conditions does not lend itself to transparency. We require a much more transparent arrangement for what will become the Digital Economy Act.
I also note that no statements have been made about whether ancillary service providers are under the same obligations as the Government argue rest on financial transaction providers. I hope the Minister will tell the House the basis on which the Government believe ancillary services providers will act as part of their enforcement arsenal. I remain concerned that Clause 22 does not give pornography providers strong enough commercial incentives to comply, because they will not be absolutely certain that payments will be blocked in the event of non-compliance. My amendment would remove that uncertainty.
The need for clarity on enforcement was forcefully presented by research from the University of Oxford that I cited on Second Reading. The report Effective Age Verification Techniques: lessons to be learnt from the online gambling industry looked at how age verification on gambling websites had worked. The authors concluded that where there are strict audit and enforcement requirements, there is an incentive to invest in high assurance identity and age verification processes, but where enforcement is patchy and uncertain, the incentives to invest in expensive authentication systems are less clear.
I am convinced that without robust enforcement, all our good intentions in relation to the protection of children will come to nothing. Many noble Lords supported the principle of Part 3 on Second Reading—but principle is not enough. We need rigorous action, and at the moment it is unclear just how the Bill will be enforced to ensure that our good intentions are met. I hope that on this occasion the Minister will respond to the questions I have raised in detail. I beg to move.
My Lords, I wish to speak on my two amendments in this group. Amendment 63 relates to the guidance that the age verification regulator may issue under Clause 22(7). It would make publishing this guidance mandatory rather than discretionary. It has been noted by the Delegated Powers and Regulatory Reform Committee that the regulator has extensive powers to issue guidance under Part 3—that is, in Clauses 15(3), 21(9) and 22(7). The guidance required in Clauses 15(3) and 21(9) is mandatory, but in Clause 22(7) it is discretionary.
The effectiveness of Clause 22 is central to the Government’s enforcement strategy. It is great that they want to disrupt pornography websites that are not in compliance with the age-verification requirements of Clause 15(1) by either stopping the money via the payment providers or disrupting other business activities via what the Government deem ancillary service providers—ASPs—a term that is broadly defined in Clause 22(6).
The Bill states that the age verification regulator,
“may publish guidance for the purposes of subsections (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 prohibited material”.
It is essential that the guidance in clause 22(7) be published. It is not just something that would be nice to have, which is how the Bill currently stands.
In making the case for mandatory guidance, I would like to make two additional points. First, Parliament should know what the Government intend should be considered an ASP, so that the debate we are having today can inform the guidance. In their original consultation document on age verification, the Government defined ASPs as,
“services which support and profit from the delivery of pornography on commercial sites. These include, but are not limited to, payment systems, advertising on pornography sites, web-hosting services, and other revenue-generating processes associated with these sites”.
Payment providers are defined in subsection (5) but whether the Government still intend that other types of organisation listed in the consultation document should fall within the scope of Clause 22 is not clear. The truth is that we do not know whether there will be any clear, comprehensive guidance, and that is simply not good enough from the Government. There is a strong argument that the definition of an ASP should be fully provided in the Bill. My hope is that, at the very least, we should have an absolute guarantee that the regulator will provide guidance defining who will be considered an ASP.
Secondly, I would like to raise questions about how social media and media sites will be treated for the purpose of Clause 22. We need clarity on this. If my amendment was accepted, that clarity could be provided through mandatory guidance. I was pleased to hear the Minister reconfirm that all social networking sites will be classed as ancillary service providers, and that this arrangement would apply to the likes of Facebook, Tumblr, Instagram and so on when showing commercial pornographic material.
However, I want to mention briefly user-generated material on social media, an issue that naturally arises in debating this Bill if we are told that it will not cover it, despite a vast amount of hardcore porn that can easily be viewed by anyone, including young children, being just a couple of clicks away. The majority of social media sites say that 13 year-olds are allowed to use their sites. In fact, 75% of all 10 to 12 year-olds in the UK are on one or more social media sites. So there is no justification for a site that says 13 is its minimum age providing easy access to harmful 18-plus material; even less so when the same site also knows that in fact, large numbers of under-13s are its customers.
As it stands, commercial porn sites will be required to introduce age verification to limit access to over-18s, but social media sites escape such a requirement if the material is user-generated. Therefore, we leave the door wide open and we may end up driving kids away from big porn sites straight into the virtual clutches of porn merchants who operate via social media. One suggestion is that perhaps the proposed new regulator could identify individual accounts or profiles persistently publishing pornography on a significant scale on any site or service. The regulator should then have the power to require the owner of the site or service to delete the account or profile, or put it behind an age verification gateway. Importantly, the whole site or service would never be blocked or restricted.
I welcome Amendment 69A in the name of the noble Lord, Lord Paddick, which would seem to be an additional sensible means of beginning to address some of these concerns regarding non-commercial pornography. Requiring the Secretary of State to lay regulations concerning non-commercial porn is helpful. I particularly support the proposal for a warning sign on a website that the user may be about to access pornographic material. A warning of this kind may not be a silver-bullet deterrent but is a welcome step in the right direction and a platform upon which we can build for the future.
If the Government are not going to address user-generated content through this Bill, then I wonder what their child protection policy is with respect to engaging user-generated content. If the Government have reached the conclusion that commercially generated content is something from which children should be protected, then it seems illogical not to be concerned about user-generated content. It is worth remembering that the Government’s manifesto commitment was to,
“stop children’s exposure to harmful sexualised content online”.
There is no mention of how the content was produced. The Government’s response may be that addressing user-generated content is more difficult, but we need to address this issue. I hope that the Minister will meet me and other concerned Peers to discuss this challenge.
I turn briefly to my other amendment, which is short and to the point. Amendment 237 would add a new paragraph to ensure that Part 3 and Clause 80 come into force one year after Royal Assent. The Bill as it stands does not say when, or even if, Part 3 and Clause 80 will ever come into force. This is an oversight which would do our children and young people a great disservice. I am sure that is not the Government’s intention. When the Bill was debated in Committee in the other place, the Minister said he expected that Part 3 would be in effect 12 months after Royal Assent. This is a welcome expectation. However, to give certainty to all the organisations affected by Part 3 and video-on-demand providers who will need to adjust their age verification systems, there should be confirmation of that 12-month timetable by putting that commitment in the Bill. It seems to me that this lack of clarity stands at odds with the explicit commitment to commence other sections of the Bill to a specific timetable. Clause 89 sets out that six sections will come into force the day the Act passes, 17 sections and one schedule two months after Royal Assent, and one section on 1 June 2020. Every other section will depend on the Secretary of State bringing the relevant sections into force by regulations.
This situation with Part 3 is completely unsatisfactory. I urge the Minister to commit to the timetable set out in the other place by tabling an amendment on Report to ensure the child protection measures we have debated will come into effect a year after Royal Assent, and to place on notice all those providing commercial pornographic websites that they will need to prepare to comply with the age verification requirements in Part 3. I look forward to hearing what the Minister has to say in response to my questions and very much hope that the Government will accept my amendments.
My Lords, I have Amendment 69A in this group. Before I discuss that I wish to address a few remarks to the other amendments in the group. I understand the concerns of the noble Lord, Lord Morrow, about enforcing fines on people who are not within the United Kingdom. However, I do not understand how his Amendment 58 would be any more effective if the payment service provider or the ancillary service provider is also outside the UK. Perhaps when he addresses the Committee shortly, he will also indicate to me, because I am a little confused, the difference between his provision in paragraph (a) of proposed new subsection (2) in his Amendment 65, where enforcement of the age verification regulator’s decision on the payment service provider or ancillary service provider is implemented by way of an injunction, and the proposals suggested for a similar process under Amendment 66.
On Amendment 69A, as I mentioned on an earlier group, there are increasing amounts of adult material available on the internet that is not commercial in any sense. Much of it is taken from commercial websites but there is no reference to which website the material has come from, and therefore no suggestion that it is intended as a lure or as providing a link to a commercial site.
To take up issues just raised by my noble friend Lady Benjamin, increasingly there is pornographic material that might be described as “home videos”, either those produced by what might be described as exhibitionists or others where innocent members of the public, including some celebrities in recent years, are deceived into performing sexual acts to their computer camera not knowing that they are being recorded for subsequent posting on to publicly available websites. There is also the issue that Liberal Democrats have been very strong in trying to tackle: those instances of “revenge porn” where disgruntled exes post compromising videos online. From what I can see, that type of material is not covered by the Bill, as there is no commercial aspect and no ancillary services involved. There is confusion about what “ancillary service providers” means. In his remarks on an earlier group of amendments, the Minister talked about pornographers to whom ancillary service providers provide their services. In the case of self-generated or home-grown obscene material, though, there is no pornographer that the website is providing a service to, at least in one sense. Perhaps the Minister will clarify that.
The noble Baroness, Lady Kidron, spoke about the fact that there are some social platforms, such as Facebook and Instagram, which are very good at taking down inappropriate material: they have strict rules about obscene material posted on their platforms. However, there are particular difficulties here with platforms such as Twitter and Tumblr. Although 99% of the content is innocent and of no harm to children, or anyone else, there are Twitter feeds and Tumblr pages that have adult material on them. Those are not simply links to porn sites, but actual videos on the actual pages or Twitter feeds. While most have a warning on the front page—NSFW, or not suitable for work, or 18+ only—that is usually also the page that has already got pornographic images on it. Even on Twitter, it may not be clear that the media content is pornographic until one has accessed those images. Clearly, there is difficulty in enforcing age verification on those platforms when the overwhelming majority of the material contained on them is not adult material.
What I believe needs to be explored is making a tool available to those who want to use social media for adult material, so that when the Tumblr page or Twitter feed is accessed, the user is diverted to a page that warns what lies behind and provides an option to divert away from the adult material. That alternative page could be a government-specified warning about the impact that pornography can have on young people, advising where support can be given and so on: the equivalent to the warning messages that are now printed on cigarette packets, for example. Alternatively, the Government could by regulation insist that such a tool was made available to ensure such a warning page is placed on accounts, as the noble Baroness, Lady Benjamin, mentioned just now, so that people are alerted that such pages or Twitter feeds have adult content on them. It falls short of requiring age verification or blocking such accounts, which I am sure Twitter and Tumblr would resist, but it would still address an important issue.
In its useful briefings on this aspect of the Bill, the NSPCC says there is a particular problem with children who accidentally stumble across adult material. This would go some way to addressing that issue. The NSPCC says a particular problem is pop-up advertisements from commercial pornography sites, which regrettably this amendment does not address—nor is that addressed by any other part of the Bill. Will the Minister tell the Committee whether there is any move by the Government to address that issue?
It is one thing for the BBFC to block a porn site that does not have age verification; it is quite another to suggest—as the Minister said on an earlier group of amendments—that we block a platform such as Twitter, if it fails to do the same for a handful of feeds that contain adult material. I accept that the amendment as drafted is probably far too wide in the powers it gives to the Secretary of State, but it is important that we do not ignore non-commercial adult material, which in increasingly a problem on the internet.
My Lords, my amendment to Clause 17, which noble Lords have already discussed, raised the importance of knowing how the Government plan to enforce the Bill through the appointment of one or more age verification regulators. The amendments tabled by the noble Lord, Lord Morrow, and the noble Baroness, Lady Benjamin, raise similar questions about the mechanics and processes of enforcement and I am very glad to be able to speak in support of Amendments 63, 56, 58 and 65.
On Amendment 63, I agree completely with everything that the noble Baroness, Lady Benjamin, has said. If we are not to have real clarity about the identity of ancillary service providers in the Bill, the idea that we can make do with optional guidance is unsustainable. It must be made mandatory. On Amendment 56, I support the call from the noble Lord, Lord Morrow, to hear a full explanation from the Minister of the mechanisms for enforcing the fining provisions in Clause 22 in other jurisdictions, which were alluded to by the Minister in another place.
In the time available today, however, I would like to focus particularly on Amendments 58 and 65. Any noble Lords who were in your Lordships’ House when we debated the Gambling (Licensing and Advertising) Act 2014 will know that I had a major reservation about the Government’s plans to rely on payment providers to enforce the licensing provisions applying to foreign websites. I think that the noble Lord, Lord Morrow, has demonstrated that my reservations were well founded. In response to written Parliamentary Questions I tabled last year, the Government said that, since the law came into effect in 2014, the Gambling Commission has written to approximately 60 gambling websites reminding them of the law, and payment providers have been asked to block payments 11 times. Given the size of the global online gambling market that can access the UK, that surely seems tiny. If we are supposed to be reassured, I suggest that the Government should think again.
The noble Lord, Lord Morrow, also raised questions about why the Government think that ancillary service providers will act to withdraw their services. I recognise that the Government want to disrupt the business models of pornographic websites, but for some companies, to withdraw their services would be disrupting their own business models. They may be small businesses, not major international organisations such as Visa and Mastercard. In such cases, it would not be in the interests of the business to act. They cannot be expected to do so unless it is made an explicit legal requirement with a clear sanction. My concerns about the absence of any sanction or requirement to act are readily acknowledged by the Government’s own publications, in a manner that I find rather unnerving. In the press release the Government issued when they announced their plans for IP blocking, they said they were,
“also seeking co-operation from other supporting services like servers to crack down on wrongdoers”,
and in the notes to the release said:
“Websites need servers to host them, advertisers to support them, and infrastructure to connect them. With the international and unregulated manner in which the Internet operates we cannot compel supporting services to be denied but the regulator will seek to gain cooperation from the industry”.
They seem to be hoping that, although they have inserted this age verification requirement into statute, it is acceptable to back it up with what is effectively a non-statutory, half-hearted good will enforcement mechanism. Lest anyone doubts this, they should review the Government’s evidence to the Delegated Powers and Regulatory Reform Committee about the delegated powers in the Bill. The Government reported on the guidance to be issued under Clause 22(7) about who will be given a notice about non-compliance of pornographic websites. Importantly, the Government said:
“The recipients of those notices can decide whether or not to take action. Accordingly it is considered that no Parliamentary procedure is necessary”.
It seems that the Government hope that by placing the obligation for age verification in statute, we will congratulate them on fulfilling their election manifesto commitment, without—at least as far as Clause 22 is concerned—any credible commitment to enforcement.
We would not be doing our job as a revising Chamber if we allowed such an obviously flawed clause through. It is imperative that the Government accept Amendments 58 and 65 in the name of my noble friend Lord Morrow. The age verification regulator must be required to tell financial transaction providers, and indeed ancillary service providers, not to do business with sites without age verification checks, and to follow up to make sure that no financial, or other, transactions have taken place. Meanwhile, the financial transaction providers and ancillary service providers must know that this will take place and that if they fail to act accordingly, the regulator will place sanctions against them. I hope the Committee will support Amendments 58 and 65.
My Lords, I am very reluctant to take part in this debate, because I was not available to speak at Second Reading, which always restrains noble Lords from speaking in Committee. However, I will make three points.
First, I confess openly that I have indulged in sexual activity—I will not say when, as that might be unfair. But I have never fired a gun or a revolver in anger, or taken part in a fight with a knife, or indeed taken part in a fight at all. Yet we are not banning scenes of violence, even on the news, which are seen by children all the time, whereas we are involved in banning scenes of sexual activity. That may be right, but we ought to be looking at other areas of life as well, because they can damage children just as much as sexual activity can.
Secondly, this law as it stands—many noble Lords who have moved or spoken to amendments have admitted this—is almost inoperable. It cannot be enforced—or can be enforced only on rare occasions. That is rather like speeding in your motor car, which is an analogy I have used before. Everybody breaks the law by speeding—or most people do—because they know that they will not get caught. That is rather like this law, as it stands at present. The problem with unenforceable or rarely enforced laws is that they bring the law into disrepute—and that is the danger of this part of the Bill as it stands. We are in danger of bringing in something that is not enforceable and, by doing so, we are bringing the law itself into disrepute.
Lastly, I will give my solution to all of that. The aim of this part of the Bill is not to stop pornography sites but to stop children watching them. There is a simple answer to that—but, unfortunately, it is an answer that the Liberal party do not support and which the Tory Government got rid of when we introduced the voluntary part of it. It is an identity card. If you introduce a mechanism whereby you can get into pornography sites on any device only by using your fingerprint or via eye recognition, or whatever it might be, of course that can stop it. On my iPad I already have a device by which I can save my passwords and which will show them to me when I want to use them. But I can get into it only by using my fingerprint; I cannot do it any other way. I cannot even use my normal four-digit pass code; I can do it only with my fingerprint. Why not do that sort of thing for pornography sites as well? Only adults will be able to get into them; children will be barred by the introduction of an ID card mechanism, so that you can get into it only by that means. Unfortunately I have hospital appointments during the next sitting of Committee, but I hope that on Report I will be able to introduce amendments to that effect.
My Lords, I have one amendment in this group. I very much support Amendment 65, but there is no point adding anything to what the noble Lord, Lord Morrow, said. He covered it in great detail and for all the right reasons. I will add only for the noble Lord, Lord Paddick, that a lot of the payment service providers—this is the key to it—such as Mastercard, Visa, and so on, are international. If there is a duty on them, they are very good at trying to stick to the law. That would close quite a few holes and make life a bit difficult for sites—so as a deterrent, it would really help.
Sadly, this whole approach to cutting off the ancillary service providers years ago was enough to kill off pirate radio in the 1960s—which I was very sad about. But this time I approve of being able to do it, because I approve of the motive behind it: trying to stop children accessing pornography.
Amendment 68B, in my name, questions what a “large number” of children is. I realise that it is obvious that you have to prioritise, because 80% of the sites are over a certain size and they will definitely come under this. They handle 80% or so of the traffic, or whatever, so I can see that you should check up on them first. But they are also the ones that will comply, because many of them are onside anyway. However, let us say that there are 10% of sites left. That is an awful lot of children, if you do the maths in your head. You knock one nought off the end of however many children there are, but you still leave an awful lot. I therefore do not understand why we are leaving in a “large number” as a constant target. There must come a point when it is worth moving on to the smaller numbers as well. I therefore do not understand the purpose of the clause. It is self-evident that they will have to prioritise. If they do not, they are idiots—and I know perfectly well that the members of the BBFC are not. Therefore I cannot understand the purpose of it.
Amendment 69A, in the name of the noble Lord, Lord Paddick, has some merit in it. As the noble Baroness, Lady Benjamin, said, there is a lot of non-commercial stuff out there. The purpose of this is to stop children viewing pornography. It does not matter whether it is commercial or not. If you put in something like this, there are clever ways in which people will try to define their sites as non-commercial. In particular, if they can start appealing against this—this is where having a complicated appeals process would become so dangerous—I can see loopholes opening up. So we need to start including non-commercial pornography—and it is okay if it takes a year.
I also support Amendment 237, in the name of the noble Baroness, Lady Benjamin. We need to have a deadline. It is something that all sites can work towards. We should say that, on whatever date, if sites are not compliant—we suggest that it ought to be a bit like a speed limit, where you ought to slow down before you hit the 30 miles per hour limit—we will issue notices to the ISPs to block them. Something might happen, because you have a level playing field, everything happens on the same date, and under the amendment in the name of the noble Baroness, Lady Benjamin, they will have a year to do it in. That is probably enough to get your regulations in place and so on. It is a very good idea.
My Lords, I am pleased to be able to support Part 3 of the Bill, and Amendments 58 and 65, in their objective of increasing child safety. However, I am concerned that the Government’s proposal in Clause 22 currently leaves many questions unanswered. I am raising these points in the context of the Government stating in the impact assessment for the Bill, published last May, that the regulatory system to be set up under Clause 22 would merely,
“nudge porn providers to comply and put age verification in place”.
That is not consistent with the much bolder manifesto commitment simply to,
“stop children’s exposure to harmful sexualised content online by requiring age verification for access to all sites containing pornographic material”.
Since then the Government have set out a robust position on IP blocking, which leaves websites little room for doubt as to what might happen if they do not comply with Part 3. The enforcement action is clear: the age verification regulator can issue a notice and internet service providers have a duty to respond. In this regard, and alluding back to the previous debate, I think it is vital that Clause 23 should remain as it is—unamended.
However, there has been no upgrading of Clause 22 in parallel with the introduction of Clause 23, so we are left with the notion of “nudging” websites—which gives me little reassurance that this is a robust approach to enforcement. Under Clause 22(1) the age verification regulator may give a notice to a payment provider or an ancillary service provider, but it is not clear when or if the regulator would inform the service provider that such a contravention was happening. Would it be after a fine was not paid or after a letter had been sent—and, if so, how long would a website have to respond before a notice would be given? I hope that the Minister will set out the Government’s intentions.
I support Amendment 58, tabled in the names of the noble Lord, Lord Morrow, and the noble Baroness, Lady Howe. It would require the regulator to issue a notice under Clause 22(1). The noble Baroness deserves much credit for her persistence in bringing this issue before your Lordships’ House over many years. My bigger concern is that, having set out clearly that internet service providers must act in response to a notice from the regulator, there is no transparent statutory expectation on payment providers or ancillary service providers. How do the Government expect enforcement to take place without this power? Others have set out their case on this point in detail and I will not take up the time of the Committee by repeating it, but I am left feeling concerned that there is no power to require service providers to take any action after receiving a notice from the regulator. Furthermore, such a lack of teeth undermines the Government’s manifesto commitment to prevent children accessing all pornographic websites.
I fully support Amendment 65 in the group, which would make it a duty for payment providers and ancillary service providers to act by removing their services from contravening websites, and makes that duty enforceable. I hope that the Government will agree.
My Lords, I rise to support in particular the inclusion of Amendment 65 on the requirement for payment services providers to cease providing a service to those who flout the age verification rules, and I am pleased to say that it looks like we are building slightly more of a consensus on that than we did on the previous group of amendments. It seems to us that this is the most powerful measure that can be taken against rogue pornographic sites. If we can cut off their source of income, the likelihood of a positive response is almost inevitable.
The very nature of commercial pornography is based on the vast sums of money that can be made from it. Indeed, when we debated Part 3 at Second Reading, several noble Lords made the point that legitimate pornography sites would welcome the age verification process as they do not make any money from children casually visiting their sites; they want the more serious players to be involved because obviously they are the ones who are going to pay the money, so there is a kind of internal logic to what is being proposed. For these sites, the overriding concern is to harvest the profits, and any threat to that is likely to bring about an immediate response.
However, I also accept the point that we have to get the enforcement right, and I listened carefully to the noble Baroness, Lady Howe, about the experience with regard to the Gambling Bill, some of which I did not know. If there is a problem, let us talk it through and work it out because somewhere in the mix is the answer to our problems.
My noble friend Lord Maxton said that this could not be enforced. 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. Incidentally, I agree with my noble friend about identity cards, although obviously that is another issue. I have tabled amendments on how it is possible to provide age verification on an anonymised basis and I hope that he will look at them. There are new websites that manage the process of checking identity without putting people’s details into the public domain. Technology is moving on in ways I do not claim to understand, but I am glad they are there.
Amendment 65 also refers to the requirement for ancillary service providers to block access to non-complying persons. We have debated this a little this afternoon. While we have some sympathy with that objective, we are keen to ensure that any measure to block sites via ancillary service providers, such as Twitter and Google, are proportionate and deliverable. The Minister and the noble Lord, Lord Paddick, reaffirmed that. We are not talking about taking down the whole of Twitter, so I do think we need to get the proportionality of this right. We will explore this issue more in some of the amendments that we have tabled for debate later on, and we need somehow to have further discussion and debate about social media sites, their responsibilities and what we can do about it.
I was very interested to hear the contributions of the noble Baroness, Lady Benjamin, and of the noble Lord, Lord Paddick, on the issue of what was not commercial but user-generated material, including issues such as revenge porn, which the noble Lord reminded us about. That is an issue that we really need to address and I feel that children are particularly susceptible to getting involved in that innocent exchange of information, which can prove all too damaging and be misused against them by those who are keen to exploit their innocence. We need to build in more protections for children from being exploited in this way. I do not know whether the Minister has any more thoughts on that, but I hope we can explore in more detail the question of what is different between commercial and non-commercial material and how can we make sure that those children are protected.
Finally, I have added my name to Amendment 237, tabled by the noble Baroness, Lady Benjamin, and we agree with the one-year implementation date. As we have already outlined, we feel there is a great deal of more work to be done in this Bill, both in primary and secondary legislation, but we agree that a one-year deadline would produce, on the one hand, space for this additional work to be done and, at the same time, provide reassurance of our ultimate determination to introduce what we hope would be a robust and detailed age verification system which would stand the test of time.
My Lords, I am grateful to all noble Lords for bringing up these rather difficult points which we have to address. This highlights that trying to fulfil our manifesto commitment is much easier in some parts, but there are also some areas on the edges that we accept are difficult. I do not think we are going to achieve a 100% success ratio and we are cognisant of that.
I shall start by addressing some of the general points that noble Lords made before I get on to the specific details of the amendments. I apologise to the noble Lord, Lord Morrow, for not answering his questions asked at Second Reading. I wrote a long letter on 21 December and I missed out some of his points, although at the end I made an offer to all noble Lords to bring up anything that they wanted.
As far as porn sites overseas is concerned, and how we should enforce this new law against such websites and companies that are not based in the UK, the aim of our policy is to capture all commercial sites regardless of where they are based. Overseas providers will still be incentivised to comply by the elements of the scheme which will disrupt their income streams. ISP blocking powers greatly increase the chance of effectiveness of the whole regime—I will come on to that more in a minute. The regulator will have the power to identify and notify infringing sites and to enable payments providers to withdraw services under their existing terms and conditions. These already require merchants to act legally, both in the country they are based in and in the countries they serve.
It is of course possible that there will be cases where it is difficult to enforce a financial penalty—for example, in the case of websites with no UK presence, as identified by the noble Lord. Even in those cases, however, circumstances may change and the option to enforce will remain. For example, the location of a pornographer may change or enforcement regimes may evolve. The regulator has discretion to take a proportionate approach. What I do not understand, however, is why not even allowing the regulator to include foreign sites is an improvement.
The noble Lord, Lord Morrow, also talked about payment providers and ancillary service providers. I can inform noble Lords that we have had constructive discussions with payment providers and they have indicated that they will act under our regime. The noble Earl, Lord Erroll, confirmed that. There are ranges of potential ancillary service providers. In some cases, the existing terms and conditions will allow them to act when notified by the regulator. We believe that companies will take responsibility when enabling or facilitating the availability of pornography.
The noble Baroness, Lady Benjamin, talked about ancillary service providers that carry pornography not being blocked. The Bill strikes a balance. It is our belief that the key issue is the commercial providers who monetise pornography, attracting large numbers of underage visitors in the process. Like the noble Earl, Lord Erroll, we believe that dealing with the largest of these providers will be a great step towards a reduction in access by children.
The noble Lord, Lord Paddick, referred to content such as revenge porn. This was brought up again by the noble Baroness, Lady Jones. We are clear that abusive and threatening behaviour online is totally unacceptable. Legislation is in place to prosecute online abuse. In the case of revenge porn, Section 33 of the Criminal Justice and Courts Act 2015 created a new criminal offence of disclosing private sexual photographs or films without consent and with the intent to cause distress, so there is existing legislation. There is new legislation and old legislation that has been adapted to deal with that very problem.
I shall now come to the detail of the amendments. Clause 20 provides that the designated age verification regulator may impose a financial penalty where someone has breached the requirement to have age verification controls in place, has not complied with an information requirement or has not complied with an enforcement notice. Clause 20 allows the designated regulator to give an enforcement notice where someone has breached the requirement to have age verification controls in place.
Amendment 56 would reduce the regulator’s discretion by restricting its ability to apply financial penalties for a breach of the requirement to have age verification controls in place. It would remove the power to apply financial penalties to non-UK residents in breach of Clause 15(1). The Government’s view is that the regulator should have the flexibility to apply sanctions to persons who are non-compliant, regardless of where they are based. During the Government’s consultation on these measures, arguments were made over the potential difficulties of enforcement, especially on taking action against non-UK companies. We are clear, however, that a flexible approach that includes a number of options is needed. We accept that there may be difficulties in taking enforcement against companies based overseas. However, as I said, we should not restrict the options available to the regulator, which should be able to take a view on enforcement based on the particular facts of any given case.
The Government recognise that financial penalties may not be effective in every case. That is why we have included other options for the regulator. For example, the power enabling the age verification regulator to instruct ISPs to block content to sites that remain non-compliant greatly increases the effectiveness of the whole regime and of compliance by providers of pornography. Our regime is designed to ensure that financial penalties are not the only sanction; there is also the ability to disrupt non-compliant sites’ business models. But we should ensure the regime allows for both fines and enforcement notices as appropriate to the individual, regardless of where they are based.
Clause 22 is an important provision containing powers at the heart of the regime to enable the age verification regulator to notify payment service providers and ancillary service providers of non-compliant persons. Amendment 58 would make it mandatory for the age verification regulator to serve notice to any payment services provider or ancillary service provider under Clause 22(1) where it considers that a person is contravening the age verification requirements in Clause 15(1) or making prohibited material available on the internet to persons in the UK. We need to be careful to ensure that we do not constrain the BBFC, which is expert in this area and committed to its role as an AV regulator in carrying out the role in the most effective way. It is important that the regulator has the flexibility to take the most appropriate action depending on the facts of any given case.
Amendment 63, in the name of the noble Baroness, Lady Benjamin, would require the regulator to publish guidance under Clause 22(7), rather than having the discretion to do so. I realise that the Delegated Powers and Regulatory Reform Committee and the Constitution Committee have made recommendations about increasing the level of parliamentary oversight for this guidance. We have listened to and noted those concerns; we are carefully considering our response to the committees as a matter of priority. Again, as I have said, we will be able to outline that before Report. On the question the noble Baroness asked about who would be classed as an ancillary service provider, I will correct something she said. I think what I said was that the Government, under the legislation, believe that internet sites can be classified by the regulator as ancillary service providers— it is ultimately the regulator’s decision—where they are enabling or facilitating the making available of pornographic or prohibited material. If that is the case, it could be notified.
Amendment 65 would require payment services providers and ancillary service providers to block payments or cease services provided to the non-complying person where the regulator has given notice to the payment services provider or ancillary service provider under Clause 22(1). This approach represents a considerable change. We are quite clear that it is not necessary. It is important that the BBFC has the freedom to build effective working partnerships with payment service providers and ancillary service providers. As part of a proportionate system, it is not necessary for the BBFC to begin regulating those services. We think that the focus should rightly be on the providers of pornography.
Amendment 68B, in the name of the noble Earl, Lord Erroll, relates to Clause 24 and would allow the regulator to exercise its powers in relation to providers wherever persons under the age of 18 were accessing pornographic content. Clause 24 allows the regulator to act in proportionate way, specifying that the regulator may choose to exercise its powers principally in relation to persons who, in the age verification regulator’s opinion, make pornographic material or prohibited material available on the internet on a commercial basis to a large number of persons, or a large number of persons under the age of 18, in the UK. Importantly, Clause 24 gives the regulator discretion, which means it is not bound by the provisions in Clause 24(1). Therefore, the amendment is unnecessary.
Amendment 69A, in the name of the noble Lord, Lord Paddick, would require that websites containing pornographic material made available on the internet not on a commercial basis be given a warning stating that the material which follows is pornographic material. This is an interesting idea and I understand that some sites already have equivalent systems in place. The focus of the Government’s policy is on the commercial providers of online pornographic content. Such companies profit from providing content to UK users with little or no protections to ensure that those accessing it are of an appropriate age. The Bill is a big step and we should not seek it to be a solution to all problems related to children’s access to online pornography. We want companies to take more responsibility where pornography is available and agree that more can be done. The age verification measures in the Bill are a significant starting point and should be given time to succeed before seeking to go further.
Amendment 237, in the name of the noble Baroness, Lady Benjamin, would make Part 3 and Clause 80 come into force at the end of the period of one year beginning with the day on which this Act is passed. Following Royal Assent, the Government intend formally to designate the BBFC as regulator and expect to be in a position to commence the provisions within 12 months of that date. Clearly, we want the provisions to be in place as soon as practicable. However, it is important that the Government retain flexibility without being too prescriptive on timings at this stage.
The noble Lord, Lord Paddick, and the noble Baroness, Lady Benjamin, were right to ask how we prevent porn being available on social media. It will depend on the facts of any given case, but should a social media site focus solely on pornography we think it right that the regulator is able to consider whether the site is making pornographic material available on a commercial basis. However, where pornography is not a substantial part of the site, that will of course be less likely. As I have said before, we think the regulator should be able to consider where sites are enabling and facilitating the availability of pornography. In this case, they would not be subject to the regulatory powers but would be notified that pornographic material was available without age verification, but they would not be required by the Bill to act. We want to achieve a consensual regime. As I have said previously, we are in contact with many social media sites, many of which are keen to act because their reputation and their brand are dependent on being seen to do so.
There has been quite a lot of detail in my response, but I hope that it will be enough for the moment to allow noble Lords not to press their amendments.
My Lords, I respectfully thank everyone who has participated in this debate. I have to be honest with the Committee that I am disappointed by the response. However, I must be very truthful, too, in that I am watching the clock with one eye as I have a flight to catch, and I may not catch it if I stand here any longer. So noble Lords may understand why I will be brief. I was looking forward to the Minister perhaps explaining in some detail how the fangs would apply abroad and how that would work. I would be grateful if, even now, he would take that on board. Perhaps he would write to me and outline in some detail how he sees that working.
Very briefly, on the point made by the noble Lord, Lord Paddick, this will bind services and financial transaction blockings only if they have a foot in the UK. My amendment would provide leverage in that instance. That was the point that maybe I did not make clear, but it was the point I was trying to make. Also, I was very struck by the point of the noble Lord, Lord Maxton, when he said that he thought the way forward would be identity cards. If that amendment is brought up at a later stage, he will discover that I am very close behind him going through the Lobby when he makes that suggestion. At least he can look to me for that—whether that is good news or bad news. He does not seem very impressed. I leave it there and thank everyone for speaking today. I beg leave to withdraw the amendment.
Amendment 56 withdrawn.
Clause 20 agreed.
Clause 21: Financial penalties
Amendment 56A not moved.
Clause 21 agreed.
Clause 22: Age-verification regulator’s power to give notice of contravention to payment service providers and ancillary service providers
57: Clause 22, page 23, line 44, leave out paragraph (b)
My Lords, in moving Amendment 57, I shall speak also to Amendments 59, 60, 61 and 64. These amendments address the issue set out by the Minister this morning, but I make no apology for revisiting this and setting out our position so that it is on the record, although I take the point that he may not be able to answer all the points this afternoon.
Nevertheless, I should like us to have that debate. These amendments would remove the reference in Clause 22 to the regulator defining and imposing new controls on what is prohibited material on the internet. Noble Lords will know that there has been increasing concern about the implications of this wording. It is felt that it would give the regulator extended powers of censorship beyond that originally envisaged in the Bill. When our colleagues in the Commons originally raised concerns about press reports that the Bill could be used in practice to extend internet censorship for adults, the Minister, Matt Hancock, was quite clear. He said:
“I have also seen those reports. I think that they misread the Bill. That is neither our intention, nor our understanding of the working of the new clauses”.—[Official Report, Commons, 28/11/16; col. 1284.]
However, others have since put a different interpretation on the scope of the wording, so there has been ongoing concern about what can best be described as mission creep.
The purpose of Part 3 of the Bill is to provide protection for children from accessing online pornography. We all agree with this intention. However, as the wording stands, it potentially sets new limits on consenting adults accessing pornography that is not harmful to themselves or others. This is material that would not receive a film classification certificate, but neither would it be subject to prosecution. It is not helped by the fact that, by all accounts, the Crown Prosecution Service’s guidelines on this issue are out of date. There is a resulting grey area of pornography that by practice, but not by statute, is not prosecuted. We strongly contend that this is not the place to resolve these wider debates on adult consensual pornography. It is an issue for public debate and for consultation at another time.
In more recent days, Matt Hancock has met with various groups of us and has, I understand, accepted that the wording in the Bill is not as it was intended. He has proposed, albeit informally, that instead a definition of prohibited material should be based on that of extreme pornography, as defined in the Criminal Justice and Immigration Act 2008. We agree that this is a helpful proposal that could well resolve the debate.
We regret, therefore, that the Government were not able to produce an amendment along these lines in time for today’s Committee, which is really where some of these important principles should be resolved, before we get into the more formal, technical detail on Report. These amendments flag up our concerns with the current wording to urge the Government to come forward with detailed proposals before Report and, we hope, to build a consensus to go forward on this issue. Child safety is the issue here, not adult consensual pornography. I beg to move.
My Lords, briefly, I strongly support what the noble Baroness, Lady Jones, said. That is why these Benches support the amendments. I took quite a look of comfort from what the Minister said early on in today’s proceedings. As the noble Baroness, Lady Jones, said, there are considerable concerns about the width of “prohibited material” and the very existence of that particular set of conditions inserted at a fairly late stage in the Commons.
Of course, we have talked about the site-blocking provisions but the prohibited material aspects really confuse the issue as they deal with access by adults. It was very useful having the meeting with the Minister and his colleague, Matt Hancock, to talk about these issues. Having discussed the matter, we felt that the proposed new definition of prohibited material, limited to the 2008 Act, was acceptable as that is very tightly defined. Again, I entirely agree with the noble Baroness that it was very disappointing that immediately after that meeting the wording as in this amendment was not made available or put down for the Committee. That would have been enormously helpful in settling people’s concerns about the width of the definition of prohibited material, which goes well beyond the harm test used by the BBFC under the Video Recordings Act.
That is really the essence of it—tying it back. I hope the Minister will shortly explain this in greater detail than he did at the beginning of this session to allay our many fears about something fairly extraneous being introduced into the Bill. I stood corrected earlier by the noble Lord, Lord Maxton, about the exact purpose of Part 3, which is to prevent access by children to online pornography. We must be very clear that that is what we are about, rather than trying to censor the internet on a broader basis.
My Lords, on Second Reading, a number of noble Lords raised concerns about censorship and the definition of prohibited material. I found this surprising as we have so often heard the mantra that what is illegal offline is illegal online. Offline, the British Board of Film Classification has operated for a long time on the basis that it will not classify certain types of video work based on the content. This principle is well established and has been in statute since an amendment to the Video Recordings Act 1984 was made in 1994 after the Jamie Bulger murder. That requires the BBFC to have special regard to any harm to potential viewers. A “potential viewer” means,
“any person (including a child or young person) who is likely to view the video work in question if a classification certificate or a classification certificate of a particular description were issued”.
Moreover, it is of course an offence under Section 9 of the Video Recordings Act to supply a video work which the BBFC decided is not suitable for classification. It is also an offence under Schedule 10 to have such a work in possession for the purpose of distribution and supply.
As the Minister said in his closing speech at Second Reading:
“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”.—[Official Report, 13/12/16; cols.1228-29.]
The BBFC publishes its guidelines openly and publicly, and they are produced after wide consultation. In other words, what is classed as prohibited in terms of physical video works is not a surprise to anyone. The last guidelines were published in 2014. Given the argument for “parity of protection” and a level playing field across all media, when R18 material became subject to age verification controls for United Kingdom-based, video-on-demand programming in 2014, the term “prohibited material” was used and based on the material not allowed under the Video Recordings Act. Such material must not be made available by UK video-on-demand producers, meeting the Government’s commitment at the time to,
“ban outright content on regulated services that is illegal even in licensed sex shops”.
In this context, it is not at all surprising that the concept of prohibited material has been carried over to the Bill to bring a level playing field in terms of regulation. It would have been strange had that not happened, as the Government would be saying that this material was acceptable on one media platform but not another. Clearly, that is an unsustainable position.
The amendments in this grouping, which seek to remove prohibited material from the scope of the enforcement measures provided by Clause 22, are concerning. It is important to understand that they also undermine the efficacy of Clause 23, which depends on Clause 22 for its definition of prohibited material. The amendments are informed by the following logic: we want to protect children and the point of this legislation is that it will protect children; and as long as prohibited material is behind age verification checks it will not matter if this material, which is currently prohibited offline, is deemed for the first time to be legal online. I understand this argument but it is based on a false assumption about what the legislation does.
First, age verification requirements will be for the material that is defined as pornographic in Clause 16. That means material that would be classified as 18 and R18 by the BBFC. If material is deemed not suitable for classification, which would be the case for prohibited material, it would not be counted under the Section 16 definition as pornographic and therefore not subject to age verification controls. In theory, this material, which would not be classified by the BBFC, could still be freely available to children and young people on the internet. If that is the case, without enforcement action of the type set out in Clauses 22 and 23 there is no new protection of children from this type of material and the Government’s manifesto commitment is not met. If the Opposition want prohibited material to be accessed by age verification procedures, they would need to amend Clause 16 to bring such material within the scope of Clause 15(1).
Secondly, even if one sought to get round this problem by amending Clause 16 and place prohibited material behind age verification, one would still encounter two major difficulties, one legal and one practical. In the first instance, taking this step would make the current position of prohibited material offline and of UK-based video on demand completely unsustainable. That would constitute sweeping changes which would be completely wrong to introduce without a thorough public consultation. It would not be appropriate for us, or indeed the Government, to change such a long-standing arrangement without a full and detailed public consultation. In the second instance, even if prohibited material was put behind age verification checks, it is important not to fall into the trap of thinking that this makes children safe across the board and that adults can access what they like without concern. We must not forget that both the Government and the BBFC have been very clear that enforcement will be targeted at the bigger sites.
Let us consider the Government’s statements on their approach to enforcement of the age verification proposals. In their response to the public consultation on their age verification proposals, the Government said they wanted to:
“Ensure a targeted and prioritised regulatory approach to monitoring and enforcement, to achieve maximum impact. The Government’s preference is for the regulator to have discretion as to which sites and providers it takes enforcement action against. For example, the regulator should be able to focus on the most popular sites, those known to be most frequently accessed by children and young people, or the size or profitability of the provider”.
In their original consultation document, they had said:
“We anticipate that the sites on this list would be subject to change, and therefore that the regulator would need to regularly reassess the list of top sites. This would put the primary focus of regulatory activity on the sites most regularly visited by UK users, and which account for a proportionately far higher number of total visits to porn websites”.
Indeed, Clause 24 explicitly gives the age verification regulator the power to exercise its functions “principally” in relation to larger websites. The Explanatory Notes say that the clause gives the regulator discretion to,
“exercise its functions in a targeted way, to those providers of pornography who reach the most people or have large turnovers”.
Moreover, the BBFC, giving evidence to the Public Bill Committee in the other place, said:
“We would devise a proportionality test and work out what the targets are in order to achieve the greatest possible level of child protection. We would focus on the most popular websites and apps accessed by children— those data do exist. We would have the greatest possible impact by going after those big ones to start with and then moving down the list”.—[Official Report, Commons, Digital Economy Bill Committee, 11/10/16; col. 46.]
The BBFC suggested that its enforcement would start with the top 50 websites, which 70% of users access, while reminding the Committee that 1.5 million new pornographic website links come online every year.
Given that the Government have been quite open that enforcement will not apply to all websites, and the BBFC’s focused enforcement plans, it is extremely likely that smaller websites will not introduce age verification. In this context, it is simply wrong to suggest that because of the Bill children will not be able to see prohibited material and therefore adults can relax about what they choose to access. 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.
My Lords, time is somewhat against us this afternoon. I will be extremely brief. I pass no judgment on where the line should be drawn. I say simply that it is an unassailable argument that it should be drawn in the same place offline and online. Well before the internet of things arrives, the internet is already regarded as a method of distribution of DVDs, CDs and books, so it would be entirely illogical to have one rule offline and not implement it online.
My Lords, first I thank the noble Lord, Lord Browne, for supporting my amendment in the last group about proportionality and the order in which websites should be tackled. Moving on to this group, I spoke to this set of amendments when we addressed this issue in the group starting with Amendment 54B—so I can abbreviate my speech and be quick. I support the noble Lord, Lord Browne, on the point made in the part of the briefing he was reading about the Obscene Publications Act and the Crown Prosecution Service advice et cetera being out of step with each other and out of step with enough members of the public for it to matter—that is the real trouble. I had thought to mention one or two of the unsavoury practices that you might find that will not be classified under the current ruling in Clause 23, but I think I have been trumped by the newspapers.
Some in the BBFC probably see this as an opportunity to clean up the internet. But it is not going to work; it will have the reverse effect. This whole issue of what is prohibited material needs to be tackled in another Bill, with a different regulator or enforcer, so it does not get confused with the business of protecting children, which is the purpose of this Bill. It will not protect children anyway, as this material ought to be behind the age verification firewall in any event. In fact, the noble Lord, Lord Browne, pointed out why it might not be: you have a possible lacuna in the Bill. If you say that the material is stuff that the BBFC has classified, the really nasty stuff is not included, because it is not able to be classified—so suddenly Clause 23 might not apply to it. He is absolutely right there. This is one of the dangers, which is why they are having to try and draw in the idea of prohibited material. It would be much easier to remove prohibited material altogether.
It has been suggested to me that the easiest thing would be to alter Clause 16, which deals with the definition of pornography. Instead of having this very limited scope, it would be much easier just to have the one simple definition which is already in Clause 16(1)(e)(i), but with the wording slightly expanded to say, “Without prejudice to the application of the Obscene Publications Act 1959, any material produced solely or principally for the purposes of sexual arousal”. You could leave it at that, and then you would protect children from anything unsavoury that we do not want them to see. That is a much simpler solution than getting into this terribly complicated debate about what is prohibited material.
My Lords, I very much share the concerns expressed by the noble Lord, Lord Browne, about this set of amendments and prohibited material. As they stand, the amendments would have the effect of causing the Bill to place 18 and R18 material behind age verification checks, which Clause 16 limits to 18 and R18 material, while prohibited material would be freely available without any such protection. This would be pretty irresponsible and would show no regard for child protection. Even if the Bill was amended so that prohibited material was only legal online if placed behind age verification checks, we should not forget that the important strategy of targeting the biggest 50 pornography sites will not create a world in which children are free from accessing prohibited material, so that adults can relax and access it without concern. Even if the material was made legal online and given a BBFC classification, this would give a measure of respectability in the context of which it would no doubt become more widely available, and thus the chances of children seeing it would be further exacerbated.
Moreover, the crucial point is that we cannot make prohibited material legal in an online environment at the same time as maintaining the category of prohibited material offline. The former would inevitably result in the latter. Mindful of this, and of the fact that the category of prohibited material is long established, it would be wholly inappropriate for the House or indeed the Government to simply end the category of prohibited material online without a major public consultation. I very much hope that the Minister will completely reject these amendments and stand by what he said on this matter at Second Reading.
My Lords, I was very grateful to the Minister, Matt Hancock, and to the noble Lord, Lord Ashton, who met concerned parliamentarians to discuss the Government’s thinking about how to move forward on this issue. I look forward to seeing the wording around what will and will not be prohibited in order to ensure that the protections that apply offline also apply online. I believe that we need to build on the consensus in this House that children should be protected from harmful content online and I firmly believe that prohibited content is harmful to children.
The BBFC’s harm test under the Video Recordings Act, on which the definition of prohibited content is based, has proved to be an effective child protection standard offline with DVDs, and online with UK-regulated video-on-demand content. So I ask the Minister for an assurance that the Government remain committed to keeping prohibited content in the Bill. Most importantly, I ask the Minister to confirm that prohibited content will include content which covers simulated sexual abuse of child characters—and I stress sexual abuse in the widest sense, and not limited to rape and incest fantasies. I also want an assurance that the prohibited content I have set out covers not only realistic portrayals of children but CGI material. If this legislation is to be future-proofed, it is vital that CGI portrayals of child sex abuse are prohibited. I would welcome the Minister’s assurance that this will be the case.
This is not about freedom of speech, civil liberties, censorship or invasion of privacy; it is about the bigger case of putting children first, and of protecting and safeguarding our innocent children from harm. I often find myself in agreement with the Opposition Front Bench—but not on these amendments, which take too much risk with child safety. So I urge your Lordships to consider the implications very carefully before pursuing the wholesale removal of prohibited material from Clause 22.
My Lords, this is an important debate, dealing not just with age verification but whether prohibited material should be included. I do not want to stand here and defend opposition amendments or put words into the mouth of the noble Baroness, Lady Jones, who can correct me if I am wrong, but I do not think that the object of the exercise was to completely get rid of prohibited material; it was to raise the extent to which the definitions may have exceeded what was originally intended. I say to the noble Lord, Lord Browne, and others that the point is that the current definition of prohibited material in the Bill allows the BBFC to consider content based on its existing hard-copy guidelines. We recognise that some think this goes too far and therefore we are continuing to listen to views on that. On the other hand, asking the regulator to consider only classifiable pornographic content creates the real risk that more extreme content will proliferate further.
I realise that it would have been easier if we had had a definition in front of us today. I know that we have discussed this with various noble Lords. The noble Lord, Lord Clement-Jones, is obviously teasing me because he knows that it takes time. As a lawyer, he will know that these issues are complex, and we have to make sure that all parts of government are happy with the wording. I shall repeat, for the benefit of the noble Baroness, Lady Benjamin, and other noble Lords, the important bits of what I said this morning. It is our intention to protect children from harmful content. Therefore, we have listened to the arguments that, in so doing, the drafting of the Bill may have unintentionally extended the powers of the regulator too far.
I committed this morning—and do so again—to giving this further consideration in order to reach a conclusion that this House agrees is a satisfactory way of meeting our aims of protecting children from harmful pornographic content. I repeat my offer to discuss this with interested Peers. I think that the noble Lord, Lord Browne, and the noble Baroness, Lady Howe, can be temporarily satisfied that we do not intend to get rid of prohibited material entirely. There is not much more to say at the moment, but we will come back to this on Report. In the meantime, I would be grateful if the noble Baroness would withdraw her amendment.
I am grateful to the Minister. He is absolutely right and I am sorry if I did not make that clear. When we were proposing to take those words out, we were rather hoping that somebody would come up with a definition that would replace them—it was not just an attempt to take them out finally and for ever. It rather highlights the fact that we do not have another form of words to be working with today.
I do not envy the Minister in trying to balance all these different desires to get the wording right. We agree with the principle that offline and online should be dealt with on the same basis, but the problem is that in practice, what happens with offline material is not what is necessarily captured in the current legislation. That is the difficulty we are trying to grapple with. Our aim is to maintain the status quo. We do not want to ruffle any feathers or change anything. We want to make sure that what people can access online has the same checks and balances as offline has at the moment. The problem is the lack of a current substantial legal definition. As I said, there is a grey area, so we have to work our way through it. That is the difficulty.
As I said, I do not think that we should start redefining anything massively without a public consultation. People have talked about that and I agree. We are simply trying to protect the status quo so that adults who currently look at material can carry on looking at it—and this has nothing to do with child protection and children’s access to pornography. We need to understand what we are aiming for, but it is a question of getting the wording right. I am sure that the noble Lord will come up with something with which we can all agree in the medium term. In the meantime, I beg leave to withdraw th