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7.45 pm

Baroness Buscombe: I lend my support to the noble Baroness's amendment. I am trying to recall the date when I spoke on the Criminal Justice and Police Bill-it was either 2000 or 2001. At that time, I asked for the very same safeguards to be considered by the Government. I was watching my own children do just as my noble and learned friend has described: accessing all kinds of stuff on the screen without my knowledge and without my understanding. So many parents either turn a blind eye to this or, in many cases, simply do not understand how easy it is for their children to access all sorts of material without their knowledge. I hope that we have come a long way as regards accepting this since 2001 when I was told that it was too difficult to do something about this. The reality is that the technology is there and it is just a question of cost. Obviously it is a cost that providers would have to take on board, as I believe they should.

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The Earl of Erroll: The objective behind these amendments is extremely laudable and my sympathies lie entirely with my noble friend Lady Howe. We have to be careful that what is in these amendments will work and it is technically possible. Once you have a connection with an internet service provider, your homepage could be with anyone, although it will probably be Google or the BBC or one of the other big providers. It may be that the responsibility should lie with someone else to produce a button showing how you can access parental control. It may not be best placed with your internet service provider.

On the duty to confirm age, we have to be very careful not to penalise companies which are purely resident or have their servers in Britain. There is the problem of where a transaction takes place. If you use Mozilla, for example, you can have something which tells you the true residence of the server through which you are purchasing. I find it helpful in telling me whether the site is likely to be genuine or not. The number of companies which appear to be British but in fact are hosted abroad is amazing and, therefore, the products come from a foreign jurisdiction. So where does the liability lie? Perhaps we ought to put in some provisions like Rome II, which deals with suing for goods which are not fit for purpose. It may turn out to be more complicated. So although I fully understand the amendments and my sympathies lie with them, much more thought and extra work may be required.

Lord Howard of Rising: It will be highly interesting to hear the Minister's response to these amendments. I was under the impression that there was a clear legal duty to ensure that age-restricted products are not sold to those who are not old enough to purchase them. However, having listened to my noble and learned friend Lord Mackay, I see that that may not be the case. Perhaps the Minister can tell the House.

I would also be grateful to know whether any assessment has been made of the efficiency and efficacy of the existing legislation. Has it made a measurable impact on restricting inappropriate access by the under-18s? Listening to the statistics quoted by my noble and learned friend Lord Mackay, I do not think so, which makes one wonder, laudable though the intentions behind these amendments may be, how they can possibly be made to be effective, as suggested by my noble friend Lady Buscombe. I look forward to the Minister's comments.

Lord Davies of Oldham: I shall not agree with the amendments but at least I shall take most of the House with me when I express our constructive approach to these very difficult problems, as opposed to Opposition Front Bench Members who seem to throw up their hands in horror and say that nothing can be done. I shall turn to what can be done in a moment.

Of course, I entirely sympathise with the objectives behind the amendments and the concern about the safety of children on the internet or when using other modern communication devices. We showed the importance we attach to this by commissioning the recent report, to which much reference has been made in the past hour, from Dr Tanya Byron entitled Safer Children in a Digital World. We did not merely accept

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all her recommendations but-this may take the breath away of noble Lords who can adopt from time to time a somewhat critical stance with regard to the Government-we have already seen action on them. The work is being led by the UK Council for Child Internet Safety, which was set up in December and brings together the Government, law enforcement agencies-I am glad that the issue of the law and how effective it can be has come up in these discussions-charities, other NGOs and a wide range of companies. The council has been hard at work since its foundation. It is already doing much to promote a greater understanding of online safety among children and, crucially, their parents and carers, and to improve education in schools by making online safety part of the curriculum.

The council is also working with industry to implement effective regulation of online services that children use, which will be reviewed independently to test how effectively safeguards work. I agree with the representations made this evening about needing to know the effectiveness of the action taken. In addition, the council will launch the Click Clever, Click Safe public awareness campaign with an online version of the green cross code-Zip it, Block it, Flag it-which is intended to see the digital code become as familiar as the green cross code was to communicate with parents. I heard what the noble Baroness, Lady Buscombe, said about parents' awareness. I could not agree more, but a great deal of the difficulty is not that children conceal things from their parents, but that their parents are unaware of what they ought to be looking at and for. That is what this process is designed to deliver.

The work of the council already anticipates two points that were made in this discussion. It has already said that it is important that monitoring is carried out. There is no doubt that we need to see monitoring of performance against the codes of conduct, and the council has stated that it will take responsibility for ensuring that that is done. The noble Baroness, Lady Howe, indicated that tomorrow is Safer Internet day. That is a Europe-wide sponsored event, but the council supports it and is launching its public awareness campaign tomorrow as part of developments on that day.

The answer to the well founded anxieties about these issues is that action is already being taken and largely takes on board the points raised in this debate, save for the issues raised by Amendment 255A. I am eager to confront the noble Lord, Lord Howard of Rising, on his rather negative stance with regard to this, although I am not too sure that I eagerly accept his invitation to clash with the noble and learned Lord, Lord Mackay, on how the law will be affected. It is a serious problem that children using the relative anonymity of the internet can purchase age-restricted goods and services that they would find hard to get if they were buying them in person. However, we already have clear laws in place. The issue is enforcement. That was the question that the noble and learned Lord, Lord Mackay, identified, and he was followed by several other noble Lords who have contributed to this debate and by the right reverend Prelate. The Government's principle is quite clear and it underpins the law: what is illegal offline is also illegal online. There is no distinction between the two; there are no

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separate laws. The Bill cannot be used to create a different framework from what obtains elsewhere. The issue is how we enforce the law.

The right reverend Prelate identified the fact that business has a clear interest that if the law is to be effectively enforced, it must be universal or else there will be a comparative advantage to those who break and defy the law. We have recently seen slightly safer, although difficult, areas. On the selling of tobacco, although we never rest content, we are somewhat reassured about how the law is enforced. On alcohol, the challenges still remain. The degree of public concern about the sale of alcohol to young people is being reflected in business practice across the country and the widespread public concern and anxiety that action should be taken. By the same token, that has to apply online. Retailers must already have robust systems for verifying the age of their customers and can be challenged and brought before the courts if they fail to carry out verification and sell to underage customers. We have got to make sure that that obtains for the sale of goods and services online.

I share the Committee's anxieties. I am trying to go one considerable stage further, almost the diametric opposite to the noble Lord, Lord Howard of Rising, who identified the problem with his usual accuracy but is doubtful whether there is any solution. There is a clear solution. Public opinion is demanding of government, law enforcers and the community. The council brings together all those who are concerned with effective action to protect our children and guarantee that the law is effectively enforced. The structure is there. There is no need to amend the Bill. What we need is public awareness, public action and action by all those with responsibility for the safety of our children. That is the basis of the Government's position. The final one, which these amendments contradict, is that what is unlawful offline is also unlawful online. I hope the noble Baroness will withdraw her amendment on that basis.

Baroness Howe of Idlicote: My Lords, I am very grateful to the Minister for having set out quite carefully and fully what the Government are doing with advertising campaigns and so on. However, I can see no reason why he would not support the idea of having internet service providers inform customers about filtering software, for example. They could do that perfectly well and it would not cost huge sums of money. It would be another way of informing the public whom we have all heard are not at all aware of much of what their children are watching, should not be watching and would not be watching if there were no access online.

8 pm

I thank everybody who has taken part in this debate because it illustrates the fact that these issues are still of considerable concern. In accepting, as I have done, that the Government are doing a certain amount, it is also clear that more needs to be done. I hope, too, that the noble Lord, Lord Howard of Rising, will be listening hard to some of the speeches made by his noble friends, which might help the Opposition to think a little more positively than it appears at the moment.

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I thank the noble Baroness, Lady Miller of Chilthorne Domer, for reminding us of previous battles. It is another illustration of how far back all this goes. We continue to fight and we shall continue to air these issues in future. I am sure that the right reverend Prelate the Bishop of Manchester will accept thanks for the support that he has given to the debate.

I certainly want to read what has been said and to discuss anything further that we can do to see whether there is a case for coming back on Report. In the mean time I beg leave to withdraw the amendment.

Amendment 251A withdrawn.

Amendment 251B

Moved by Baroness Howe of Idlicote

251B: After Clause 41, insert the following new Clause-

"Additional protection from harmful material through online on-demand programme services using age verification scheme

For section 368E(2) of the Communication Act 2003 (harmful material), substitute-

"(2) An online on-demand programme service must not contain any material which might seriously impair the physical, mental or moral development of persons under the age of eighteen.

(3) If an online on-demand programme service contains the following material, the material must only be made available using a clearly identifiable and robust age verification scheme to determine that the person purchasing or otherwise obtaining access to the material is not under eighteen-

(a) material which might seriously impair the physical, mental or moral development of persons under the age of eighteen;

(b) material which is contained in a video work for which a classification certificate has been issued containing the statements mentioned in section 7(2)(c) of the Video Recordings Act 1984 (recordings to be supplied only in licensed sex shops);

(c) material which falls within subsection (4) unless it is contained in a video work for which a classification certificate other than one containing the statements mentioned in section 7(2)(c) of the Video Recordings Act 1984 (recordings to be supplied only in licensed sex shops) has been issued.

(4) Material falls within this subsection if it is pornographic and portrays, in an explicit and realistic way, any of the following-

(a) an act of penetration of the vagina or anus of a person with a part of a person's body or anything else;

(b) the performance by a person of an act of intercourse or oral sex;

(c) the performance by a person or an act of intercourse or oral sex with an animal;

(d) an act of masturbation;

(e) an act of ejaculation;

(f) human genital organs or human urinary or excretory functions; or

(g) an act of restraint or violence which is associated with sexual activity.

(5) In this section-

"classification certificate" and "video work" have the same meaning as in the Video Recordings Act 1984;

"pornographic" has the same meaning as in section 63 of the Criminal Justice and Immigration Act 2008 (possession of extreme pornographic images).""

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Baroness Howe of Idlicote: The Committee will be pleased to know that this is the last in the line and refers to an age verification scheme for certain defined online pornographic material access to which could otherwise be harmful to children.

I believe that the amendment is necessary because the current regulatory regime under the Communications Act relating to video on demand services operating from the UK is insufficient to protect children from harm. The Video Recordings Act ensures that in the physical world the supply of R18 hardcore pornography is limited to licensed sex shops. We must not forget that that is all behind very definitely closed doors when in the real world, as it were. Children are not permitted to even enter, let alone purchase products from these stores. Mail-order supplies of R18 DVDs are prohibited in this country. These restrictions are in place because as a society we believe that children should not have access to such material. In contrast in the online world there is no such restriction, even for UK-based hardcore pornography. Indeed, service providers are free to provide such pornographic content without any access controls to prevent viewing by children.

The Communications Act only requires service providers to place content behind access controls such as credit card payment or checks against the electoral roll, if the material,

I have already referred to some research that has been done, which seems to indicate that viewing such material has an effect on youngsters growing up.

Ofcom, which currently regulates video on demand services and ATVOD-the Association for Television On-Demand-which is expected to regulate this area in the near future, have both concluded that material classified by the BBFC in any category including R18 would not be considered likely to "seriously impair" children. This interpretation of the Act means that the new online regulated environment is sufficiently robust to protect children from potentially harmful content, particularly hardcore pornography and material which would be rejected under the Video Recordings Act in the physical world.

The amendment would ensure that the current regulations would be strengthened to provide protection for children from R18 and R18-equivalent content in regulated video on demand services. The amendment would require additional regulations which clearly and specifically target R18 and R18-equivalent material and place it behind access controls, coupled with an outright prohibition on content which goes beyond that which would be classified by the BBFC in any category. I hope that the Government will carefully consider this amendment which will ensure a more consistent regulatory approach to the online and physical world to protect children from harmful content. I beg to move.

The Lord Bishop of Manchester: My Lords, I do not think that the noble Baroness, Lady Howe, should in any sense feel that there will be relief all round the Chamber now that she has come to the end of her series of amendments. She is to be congratulated on

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raising a significant number of important matters that must be addressed. On this matter, I am sure that the Minister and your Lordships will feel that there are clear issues of concern, and I hope that the Minister will show that the Government take them very seriously.

Lord Davies of Oldham: My Lords, I am happy to reassure the noble Baroness, Lady Howe, and the right reverend Prelate the Bishop of Manchester on these points, but I cannot accept the amendment because we have a law in place that achieves its effect. Section 368E(2) of the Communications Act was introduced by the Audiovisual Media Services Regulations 2009 and requires that, if an on-demand programme service contains material which might cause serious impairment to children or young people, it should only be shown in a way that would ensure that they do not usually see it or hear it. The regulations are in response to a European Union directive that applies to all on-demand programme services all the time. I accept entirely the anxieties of the noble Baroness about these issues, which prompted her to table the amendment, but the question is whether we should go further than the present regulations. We are in discussion about this with Ofcom and the Association for Television On-Demand, the leading video-on-demand industry body to make sure that any moves we make are the right ones to ensure that children are adequately protected. If it turns out on reflection that it is necessary for the Government to take action, we can introduce further regulations under the same provision as those in force at present, to strengthen and reinforce the protection. I reassure the noble Baroness that she has raised an important topic but her amendment is not necessary.

Baroness Howe of Idlicote: My Lords, I am grateful to the Minister for what he has said. I cannot say that he has completely reassured me. No doubt, not only I but CARE, BBFC and others will look at what he has said. We shall see whether there is a reason to come back on Report. I should also like to thank the right reverend Prelate the Bishop of Manchester for his support. On that basis, I beg leave to withdraw the amendment.

Amendment 251B withdrawn.

Schedule 1 : Classification of video games etc: supplementary provision

Amendments 252 and 253 had been withdrawn from the Marshalled List.

Amendment 254

Moved by Lord Howard of Rising

254: Schedule 1, page 52, line 19, leave out sub-paragraph (5)

Lord Howard of Rising: My Lords, I should like to probe the Minister as to why, under paragraph 2(5) of Schedule 1, the Government are giving up control of the fee an authority may charge for classification. The idea of a Government giving up control of something, when those involved apparently did not ask for it, is unusual enough for it to warrant further investigation. I look forward to hearing what the Minister has to say.

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Amendment 255 is more substantial. Paragraph 4 of Schedule 1 allows an authority to charge for the classification of the same material every time it is reproduced in a different format, despite the material being identical. I understand that it is the practice for PEGI, and very lucrative it must be, with so many different ways of playing video games. I am glad that the BBFC apparently has no intention to start that practice and will instead continue to charge one fee for each video work, regardless of whether it is brought out on different platforms. Does the Minister feel that multiple fees of this nature are right? It seems artificial to insist on a distinction between the same material received in a different manner. I beg to move.

Lord Davies of Oldham: My Lords, I thought that the noble Lord was for the moment going to congratulate the Government on an unusual and particularly attractive action, but he did not quite manage the latter part of that phrase. I want to assure him that what we are doing is attractive. We do not want the designated authority to charge unduly burdensome fees by virtue of this legislation, but it must charge reasonable fees to reflect the level of work which is undertaken. I am sure that the noble Lord will agree with that.

We believe that it is right that the Secretary of State has a consultative role in the fees tariff, which is one stage back from central government authority. It should have a consultative role in the fees tariffs, which should be set by the designated authority. There is no need to have a formal approval process. We want to create a fair and transparent system with every reason to believe that the designated authority will act responsibly and properly in relation to setting the fees. If that were not the case, the whole process of setting up a designated authority could obviously be called into question. We are seeking the power to be exercised by the designated authority and for the Secretary of State to be kept at a distance. I hope that that commends itself sufficiently to the noble Lord for him to feel that his amendment can be safely withdrawn.

Amendment 255 refers to the section which makes clear what is covered by a classification certificate and what the certificate relates to. This is particularly pertinent to video games because a change in format can lead to a different perception and impact of the game. This is a practical and effective measure to take account of existing and future formats in a changing technology. It means-this is the most readily appreciable reason why this section is as it is-that publishers will not be able to take several already classified works, cut them and repackage them in a new way and then seek to rely on the previous classification certificate for the work in question. We all know that such cutting and pasting, although the process is slightly more sophisticated than that phrase suggests, can change content. That is why we are seeking to ensure that if changes of that nature are effected, the designated authority could make a new specification if it felt the need to do so, although it does not have to.

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