In the light of the balance that this Government have sought to strike with this offence, we believe that such an extension to the offence would be going too far. It would, I believe, widen inappropriately its scope and could make too wide a range of sexual activity subject to serious criminal sanction.

Amendment 36D also seeks to extend the parameters of the existing offence but would retain the necessity that the material be “explicit and realistic”. However, it would still extend the parameters of the offence too far and could capture a wide spectrum of sexual contact.

Amendment 36C seeks to explore the issue raised both at Second Reading and in the other place about the ability of the offence to deal with simulated rape scenes. I assure your Lordships that our provisions as they stand are already capable of covering the depiction of real or simulated non-consensual penetration. Both the amendment and the existing offence cover any portrayal or depiction of the acts in question. While the requirement is that the portrayal is realistic, it does not have to be real. As the noble Baroness, Lady Howe, mentioned, we have clarified this point in the Explanatory Notes to the Bill in response to these concerns.

Amendment 36E seeks to widen the scope of the existing offence to cover depictions that appear to portray incest, underage sexual activity and scenes involving sexual threats, humiliation or abuse. The protection of the country’s children from sexual abuse is a government priority. We have a robust range of offences and sanctions to deal with this truly dreadful offending, and it is a credit to the efforts of this House that our legislation in this area is rightly respected across the world. It is of course right that we keep the law in this area under review to ensure that it is fully equipped to protect our children.

Images of children are not specifically excluded from our extension of the extreme pornography offence, but we already have offences to cover the possession of indecent photographs and films of children. These offences have suitably robust sentencing levels and much lower thresholds in respect of the content of the images than the extreme pornography offence.

Finally, Amendment 36F would add to our provisions a requirement that, when evaluating images for the purposes of the offence, contextual material of certain kinds is taken into account. I appreciate that this reflects the drafting approach taken in the equivalent legislation in Scotland. However, we do not believe that the amendment is necessary: the court is already entitled to take into account all relevant evidence in determining whether material meets, or indeed does

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not meet, the requirements of the extreme pornography offence. Prosecutors and the courts already take the “context” of images into account when considering the existing extreme pornography offence. I hope that provides some reassurance to the noble Baroness.

The extension of this offence is well structured to ensure that the images we wish to capture fall within its parameters. The extension is in the spirit of the original offence and balances the need to criminalise the most extreme and potentially harmful or damaging material with the need to protect the lawful sexual freedoms and rights of others. Given the sensitivities involved, that balance has not been easy to achieve but I believe that we have achieved it with this reasonable, proportionate and important provision.

For those reasons, while I entirely understand the concerns expressed, the Government do not feel able to support these amendments. I hope that, with those assurances, the noble Baroness will feel able to withdraw her amendment.

Baroness Thornton: I thank the Minister for his considered, if somewhat disappointing, response. The point of the Committee stage of this sort of legislation—the House of Lords is particularly good at this—is to test whether this kind of clause does its job. I appreciate that the Minister thinks it does but I have to say that some of us think that one or two things in this clause need some attention. I am not going to delay the House any further by repeating what they are. The Minister said that the Government thought they had the balance right all the way through. I think there are one or two things to do with context that suggest the Government may not have got the balance right. We do not want to find ourselves in five years’ time with either no prosecutions because we did not get the balance right or with people not being prosecuted because we did not look at the things that experts are telling us are loopholes. Obviously I am happy to withdraw the amendment at this stage—apart from anything else I do not think it and my other amendments are as competent as they should be, for which I apologise—but I fear that we will be returning to this at a later stage in the Bill. I beg leave to withdraw the amendment.

Amendment 36A withdrawn.

Amendments 36B to 36F not moved.

Clause 28 agreed.

Amendment 37

Moved by Lord Marks of Henley-on-Thames

37: After Clause 28, insert the following new Clause—

“Offence of publishing a sexually explicit or pornographic image without consent

(1) A person commits an offence if they publish a sexually explicit or pornographic image of another identifiable person (whether or not that person is engaged in a sexual or pornographic act), unless—

(a) the identifiable person consented to publication;

(b) the person who published the image reasonably believed the identifiable person would have consented; or

(c) the person who published the image has reproduced an image that has already been published by another person.

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(2) For the purposes of this section it is immaterial who owns the copyright of the published image.

(3) In this section “publish” means to reproduce, share or otherwise distribute an image via the internet or other means.

(4) In this section a person is an “identifiable person” if—

(a) their face is displayed in the image;

(b) any other identifiable characteristics are displayed in the image;

(c) their name is displayed on, or otherwise connected to, the image; or

(d) the image contains any other information by which the identity or address of the person could reasonably be ascertained.”

Lord Marks of Henley-on-Thames: My Lords, the term “revenge pornography” refers to the publication, usually but not always, on the internet, of intimate images of former lovers without their consent. This thoroughly nasty behaviour generally involves the perpetrator in taking advantage of his or her possession of sexually explicit images, generally taken or obtained in private during the course of an intimate relationship in circumstances where the parties, and certainly the party photographed, had every right to expect that the images would remain private.

Obtaining such images has become more common and much easier with the prevalence, popularity and sophistication of smartphones, with their ability to take or record high quality images, still and video, instantly and simply, with accompanying sound in the case of video. It is set to become even easier to take such images with the advent of cameras installed in glasses and yet further improvement in high definition video cameras in phones.

The widespread publication of such images causes, and is generally intended to cause, distress, humiliation and embarrassment for the victim—hence the name “revenge porn”. She or he—the victims are usually but not exclusively women—face the humiliation of their most private moments being exposed to family, friends, employers and the world at large. It is entirely predictable that such exposure can cause serious psychological and emotional damage even to those with robust personalities. Suicides as a result of such publications have been recorded. Worse still, the damage may often be increased because it follows the trauma of relationship breakdown and is caused by someone with whom the victim had previously been close. Publication can cause havoc in personal and family relationships and in relationships at work. The betrayal and the hurt it causes could hardly be worse. Such behaviour has been characterised by academics in the field as a form of abuse and I suggest that such characterisation is entirely accurate.

I have no hesitation in concluding that this practice should be criminalised and in asking your Lordships to pass legislation accordingly. I was therefore extremely pleased that in response to our Second Reading debate my noble friend the Minister indicated that the Government would be open to amendments of this Bill to that effect. I was also delighted when my noble friends Lady Berridge and Lady Morris of Bolton laid their Amendment 40, which is also in this group. I hasten to add that in my view there is neither magic nor any monopoly of wisdom in any particular wording.

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The point is to secure legislation to criminalise such behaviour with the most appropriate statutory language that can be found. I would mention, however, that I do have some concerns about my noble friends’ formulation of the proposed offence, to which I will come in a moment.

5.45 pm

I will explain the draft clauses in our amendments. The offence would be committed by publication of an image that is sexually explicit or pornographic; the publication would have to be of an identifiable person as defined; it would have to be without the consent of that person or at least in circumstances where the perpetrator did not believe he had such consent; and the image must not have been published before. It would be a defence for the perpetrator to prove that he believed he had the consent of the person in the image or that the publication was unintentional. The offence would be triable either way and would carry a maximum sentence of 12 months’ imprisonment and/or a fine on indictment or six months and/or a fine on summary conviction.

The mischief to which these proposed clauses are directed is fairly and squarely the publication of the image. The criminal behaviour is the publication and the effects we seek to avoid are the hurt, humiliation and distress caused to the victim by such publication.

I have three doubts about the formulation of the offence proposed by my noble friends Lady Berridge and Lady Morris of Bolton. The first is that in their draft clause an offence would be committed only if the publisher intended that someone looking at the image did so for the purpose of obtaining sexual gratification. That may be an undesirable consequence of publication, but in our view such intention is irrelevant to the criminality of the publisher. What we wish to target is the humiliation of the victim and that is the same whether or not there is any intention of affording sexual gratification to third parties.

Our second concern is that for the offence to be committed under their formulation it would be necessary for the image to portray the person portrayed in it doing a private act, defined as a sexual act not of a kind ordinarily done in public. For an image to cause real distress, it is not necessary for the subject of the image to be actually engaged in a private act. The fact of being exposed naked or semi-naked in a compromising position or in compromising circumstances may be just as devastating. It does not seem to us that a sexual act should have to be portrayed in the image before an offence could be committed.

Finally, and I accept less importantly, we are not convinced that it should be necessary for the person in the image to be exposed or semi-exposed in the way described in my noble friends’ proposed new subsection (3)(c)(i) for an offence to be committed. While I can see that an image of a person not so exposed is unlikely to be reasonably classifiable as sexually explicit, I am not sure that can be ruled out and I suggest the requirement is unnecessary.

However, the important thing is to secure the criminalisation of this behaviour. Long gone are the days when we should regard physical harm as a necessary ingredient of an offence against the person. The degree

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to which malicious individuals can hurt innocent victims by publication on the internet of images of their most intimate moments is ample justification, I suggest, for our invoking the criminal law to prevent and punish such behaviour. I beg to move.

Baroness Berridge: My Lords, I rise to speak to Amendment 40 in this group. It seeks to introduce a new criminal but also sexual offence of posting on the internet what has been outlined as revenge pornography. This is one of those rare situations where I do not advise noble Lords to go on to the internet to look first-hand at these sites; they are truly appalling. As my noble friend Lord Marks has outlined, this is a growing problem that affects mainly women, particularly when naked or sexually explicit pictures or videos of them have been posted on the internet without their consent. Obviously these images are put online almost exclusively by ex-partners, and there is generally an intention—which is why our clause is drafted as it is—to sexually humiliate the former partner. Often the contact details of the victim as well as sexually abusive or malicious comments are added when the image is posted.

There are dedicated websites that are easily accessible; this is not a niche problem. The UK Safer Internet Centre, which is working in this area, has stated that some 20 to 30 websites in the United Kingdom are hosting this type of material. Apparently it has become a consumer product on pay-per-view. Many of the websites attract huge volumes of traffic, and the more often an image is looked at, the more likely it is that when you Google search your own name, the first thing that will come up in connection with your name is these images that have been posted, which is particularly degrading.

These are pictures that the victim may regret were taken in the first place, but, as my noble friend outlined, there would have been every expectation that they were private and would not be viewed, sometimes within days, by thousands of people on the internet, including perhaps work colleagues and friends at the school gate. Of course, the impact can be devastating. Victims have described that they feel like they have become a porn star without their knowledge or consent. There are also devastating impacts on employment prospects as well as on personal reputation and career.

This is another situation where the law has not quite kept pace with the internet. I am grateful for my noble friend’s contribution to the drafting of the proposed new clause, which is based on the offence of voyeurism. I hope that the Minister will take all of these proposed clauses away in order to consider what would be the most appropriate formulation. However, we would submit that this should be classified as a sexual offence. Currently, these matters do not fall within the ambit of the Protection from Harassment Act 1997 because they are not a course of conduct. They are also not caught by the Obscene Publications Act 1959 because the images are not always classified as being obscene.

It is important not only to make this behaviour criminal, but for the police to know that it is a criminal act in order that they can take action at police level and against the internet service providers. Once this is

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an offence, they will have a mechanism by which to remove these images, because many victims are complaining that without such clarity, they find that although they make submissions to the internet service providers again and again, the images are not being removed from these websites. Of course, the longer they remain posted, the greater the damage that is done to the victims.

At this point I wish to pay tribute to the very brave women who have put their head above the parapet and have spoken out in order to bring attention to this issue. I mention in particular Laura Higgins and the work of organisations such as the UK Safer Internet Centre. I am also pleased that Women’s Aid, Welsh Women’s Aid and Scottish Women’s Aid all support the amendment tabled by myself and my noble friend Lady Morris. Although this matter was not raised in the other place, honourable Members including my right honourable friend Maria Miller hosted an adjournment debate in June to bring it to the attention of Members of Parliament.

At the moment, Amendment 40 does not include any reference to penalties, but I hope that my noble friend will consider the similar offence of voyeurism, which carries with it a sentence of imprisonment of up to two years. We believe that this offence should attract the same scale of penalty. It is only by showing our abhorrence of the sexual abuse of these people that they will be able to secure justice.

This type of behaviour is becoming an ever more pressing problem, and other countries such as the United States and Israel have had to bring forward legislation to catch it. I believe that we should take this opportunity and I am grateful that the Minister is in listening mode in relation to this matter. I hope that that we can come up with an acceptable formulation of what the offence should be in order to offer these victims some protection.

Baroness Grender (LD): My Lords, I apologise for having been unable to attend Second Reading. I will speak in particular in favour of Amendments 37, 38 and 39. To hear people talk about revenge porn, you would think it had only just been invented, but the divorce in 1963 of the Duke and Duchess of Argyll involving the infamous image of a headless man tells a different story. The dramatic difference is that of course today we have the ability to reproduce a picture a thousand times without the permission of the individual concerned. I will focus on one aspect of this, which is the motive to hurt or humiliate the individual.

I do not believe that on the whole the motivation is sexual gratification, as outlined in Amendment 40. Perhaps I may put before the Committee three case studies that will help to illustrate this. The first is of a lady who was with her partner for two years. They planned to buy a home together so it was a trusting relationship, but after it broke down, her ex published photos of her and labelled her as a “whore” and a “slut”. He even set up an identity pretending to be her and invited humiliation and insults. When she went to the police they were unable to help, and the website refused to remove the images, in spite of regular requests.

The second example is that of a woman whose images were posted on a website called The

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images spiralled from website to website gathering views, comments, abuse and humiliation. While some porn sites actually responded to the woman’s specific requests to remove the images, did not. She currently remains terrified of family and work colleagues seeing the images. We need to be conscious of the fact that men can also be victims, although most are women. I cite the case of a 29 year-old man who exchanged images having been sent fake images by his girlfriend. His ex has shared them, particularly with his work colleagues.

These cases are ones that involve not naïve teenagers—although obviously I believe that they should be protected as well—but people who have been in trusting relationships where the trust has broken down. What has been done is something that we should clearly define as a crime. These people are our sisters, brothers, daughters and sons, and what they need is protection against these vile acts that are committed without their consent. The inflicting of pain and humiliation is the only motive, and the individual who publishes such images should know that when they do it, they are committing a crime. I hope that the Minister will reflect that when he considers a possible amendment to the Bill.

Baroness Howe of Idlicote (CB): My Lords, I support the principles behind Amendments 37 and 40. The internet, as we all know, is a fantastic resource, but it can also be a source of harm to children and, in this case, to adults. Noble Lords were clearly grateful for the very positive spirit with which the Minister, the noble Lord, Lord Faulks, agreed to consider suggestions for tackling revenge pornography when the issue was raised at Second Reading, and I hope very much that he will continue to work with the noble Lord, Lord Marks of Henley-on-Thames and the noble Baroness, Lady Berridge, and other noble Lords who are interested in these amendments. We must make sure that a robust solution is found to this increasingly worrying problem.

6 pm

Baroness Kennedy of The Shaws (Lab): My Lords, it is important that this proposed new clause is drawn with real care. While I hear the discussions about the motivation to degrade and humiliate or to secure sexual gratification, it is important to draft widely without specifying the nature of the motivation. That is because it is always difficult to pin down motivation. A case in Canada is currently attracting a great deal of public attention in which a woman judge has been suspended from the judiciary while an inquiry takes place because her husband put on to the web images of her that had been taken in intimacy.

The concern for the judiciary is that this undermines her authority in the courtroom, because these images are available. It is, if you like, bringing the judiciary into disrepute. The consequences for her life are therefore considerable. It is an interesting and rather difficult debate in Canada. She has remained with her husband and seems to have forgiven him for his transgression, but the issue has moved beyond the pair in the relationship to be an issue of public concern.

I urge that we think about the implications of the drafting. In Canada, a woman’s career has been held in abeyance. She has remained in a marriage because

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of her commitment to it, but certainly it is causing problems. It is really an issue about consent: has a person consented to the disclosure of intimate photographs? It is not an issue of speculating about what the motivations might be.

Baroness Morris of Bolton (Con): My Lords, my noble friend Lady Berridge set out strongly the case for Amendment 40 with which I am associated—namely that the appalling act of revenge pornography should be a serious sexual offence. I take on board what my noble friend Lord Marks and the noble Baroness, Lady Kennedy, said about the drafting. Neither of us would seek to be draftsmen, but we should make sure that we capture whatever needs to be captured in these amendments.

I was unable to speak at Second Reading but this is a matter that concerns me and rightly concerns many in your Lordships’ House. The issue is how we address that concern. The amendments brought forward by my noble friend Lord Marks would classify the online posting of revenge pornography as an ordinary criminal offence. This fails to recognise the sexual nature of the crime and the impact that it has on the victim, which is a clear violation of the victim’s dignity. Further, this failure to recognise the gravity of the sexual offence leads to an unduly lenient penalty, allowing for imprisonment for no more than 12 months. The courts must have adequate sentencing powers to reflect the severity of this act. For these reasons, I press strongly for this crime to be classified as a sexual offence.

Revenge is a horrible and destructive motive generally, driven as it is by anger, malice and cruel calculation. Perpetrators choose many ways to pursue their revenge, such as harassment, stalking, humiliation through social media by posting malevolent or hurtful comments or spreading rumours concerning work, family or finances in order to ruin reputations. But the greatest betrayal is to choose to use naked or sexually explicit images that should be a private and deeply personal matter between a couple and which were never intended to be seen by anybody else. In this way, the perpetrator commits an act of sexual abuse against the ex-partner, specifically designed to subject them to humiliation and degradation.

If we look at the criminal offence of sexual assault under Section 3 of the Sexual Offences Act 2003, we see that:

“A person (A) commits an offence if he intentionally touches another person (B) … the touching is sexual … B does not consent to the touching and … A does not reasonably believe that B consents”.

To my mind the posting of revenge pornography online is in essence a virtual form of sexual assault since the perpetrator is intentionally posting the naked or sexually explicit image without the subject’s consent, the posting of the image is sexual in nature, the subject does not consent to the posting and the perpetrator does not reasonably believe that the subject of the image consents.

Victims of revenge pornography face extraordinary difficulties, as we have heard, in trying to have their photographs taken down from websites set up specifically to display this type of material. Clearly criminalising this type of activity should give an incentive to internet service providers and search engines to take material

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down. As things stand, some victims have had to pay so-called fees of hundreds of dollars to host websites based in the United States just to have their photograph taken down from the site.

The law needs to set out clear boundaries about what is and what is not acceptable behaviour, including sexual behaviour. As technologies change, we need to ensure that we keep up with changes in behaviour. This is why we should take this opportunity to recognise revenge pornography as a sexual offence.

Baroness Brinton (LD): My Lords, I added my name to Amendments 37, 38 and 39 and I shall not repeat the very good points made by my noble friends Lord Marks and Lady Grender. I shall start from the point at which my noble friend Lady Grender ended: namely, the activities among our teenagers and very young adults which may not always be fully sexually explicit, and certainly may not be intended to be pornographic. A large number of students both in schools and colleges are being asked by their boyfriends or sometimes—though it is unlikely—girlfriends to have photographs taken of them which I am afraid are being used against them. The noble Baronesses, Lady Berridge and Lady Morris, made valid points about the distinction between different types of photograph. It may be that that will be addressed in the discussion that I hope the Minister will have with those who have put forward both sets of amendments.

The principle in our amendments is clear: that the crime is the publication of those photographs or other electronic media, because it is that over which the person in the photograph feels they completely lack control. It is used as a form of abuse. Increasingly what is used as a key element in cases of stalking—indeed this morning there is a case in the paper for which a court date has just been set in December in Scotland—is the threat to publish not only publicly but also among family and friends. The key point of our amendment is that when it becomes a tool of abuse, that in itself should become a crime.

Because this is about making a law, there is, understandably, little focus on the victim. I will highlight the work that the NSPCC and ChildLine have been doing with young people. They have a very good app called Zipit that is intended to teach secondary school pupils how to respond if their boyfriend or girlfriend asks them for a photograph that is inappropriate, using silly photographs and silly text underneath that might say something like, “You’re having a laugh”. That is beginning to work. The work that PSHE staff are doing in schools to make young people understand the dangers of this are vital if we are not to end up with a generation of young people thinking that it is acceptable to play at this. When they get into stronger relationships where they may have a partner over some period of time it will be second nature; then, if they want to get their own back, we will end up in a position where these sexually explicit photographs start to be exported.

I am concerned that one thing that we have not looked at is the circulation of the image after initial publication. There has been some discussion online about trolling and about abuse of the victims by

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others. I hope that the Minister will be prepared to look at this. It may be difficult to pin down who has circulated the image but we have seen, in recent cases of trolling, that people who have recirculated offensive and defamatory literature can be taken to court for continued publication. That should also be true in this case.

Baroness Barker: My Lords, I will address the point made by the noble Baroness, Lady Kennedy of The Shaws, that the way in which this amendment is worded is of the utmost importance. Our amendment tries to focus not on the definition of what is pornographic but on the act of revenge. That is why, in our amendment, we have concentrated on the initial posting of an image rather than the reproduction or the recommunication of it, because the act of revenge happens in the initial posting.

To respond to the noble Baroness, Lady Berridge, we have no problem with making this a sexual offence. Quite clearly it is. We do have a number of problems with the way in which her amendment is drafted. For example, it requires that the image be of the two people involved, but you can make a very good attempt at ruining somebody’s life by producing pictures of them with somebody else. I did not think that we would get to the headless man today, but we have—the point there was precisely that it was not the two people in the relationship.

The noble Baroness, Lady Kennedy, is right to make us focus on consent. There are a lot of people out there who one would best call amateur pornographers and who actually want to share the lives on the web. I do not know why, and do not ever want to see it or have anything to do with it, but they do. It should therefore be a defence that they had reason to believe that there was consent on the part of the other person. However, if we are going to make this sufficiently robust and—what we really want it to be above all else—a deterrent that makes it absolutely clear to people who are thinking of committing such an act that they may go to prison, she is right that we need to focus on that. Our amendments are not perfect but they take us quite a long way to where we want to go.

Baroness Thornton: My Lords, this has been a very good and interesting debate. We on these Benches support the principle of bringing forward legislation, probably along the lines that my noble friend Lady Kennedy suggested. We do not think that either of these amendments get us to the point where we want to be, as I think those who tabled them would admit, but they take us along that road and I hope we will see something emerge that does get us there.

Images described as “revenge pornography” are indeed a form of harassment and abuse. They constitute stalking and are humiliating. However, as well as a specific offence, what is also needed is the strong political will to tackle the underlying culture that creates and legitimises sexual violence, abuse and harassment in all its forms. That requires not only a government commitment to headline-making legislative reform but to ensuring effective implementation of any new offence and bringing forward compulsory sex and relationship education in our schools. The noble

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Baroness, Lady Brinton, referred to what goes in our schools. It is not good enough that this is done by voluntary organisations; it should be part of our curriculum. For the protection of our children, it really needs to be mandatory in our schools.

We on these Benches have problems with both these amendments, for different reasons, some of which have already been mentioned. For example, the amendment in the names of the noble Baronesses, Lady Berridge and Lady Morris, says that to commit the offence, the defendant must distribute the images,

“with the intention that he or a third person will”,

gain “sexual gratification” from doing so. That provision is problematic. As it is framed, no offence will be committed if the defendant discloses the image with a view purely to humiliate and embarrass the person in it. The motivation behind revenge porn is not typically to distribute pornography but to humiliate, embarrass and harass the victim. We need legislation that emphasises that, not the pornography aspect.

Likewise, with the amendment in the name of the noble Lord, Lord Marks, and his colleagues, we do not see why the offence should be limited to the circumstances where the individual is identifiable. As noble Lords have said, the motivation for this offence is to harass and abuse victims, and the harm will be done whether or not he or she is identifiable to others. There is some work to be done and, because we will have a long summer break before Report, I hope that we have time to undertake it. We on these Benches would be very happy to help to do that.

Lord Faulks: My Lords, this has been a very useful debate indeed. I will deal with Amendments 37, 38, 39 and 40 together, as they are clearly designed to deal with broadly the same issue, albeit in slightly different ways. They all seek to create a new offence banning the uploading or publishing of material that has come to be known as “revenge porn”. First, I will say that I have great sympathy for the intention that lies behind these amendments, as I said at Second Reading. The posting or publication of intimate material is despicable and cowardly, and we must ensure that such behaviour is appropriately dealt with by the criminal law.

Revenge porn is a broad term used to describe a range of offending behaviour. Usually, it involves an individual, often an adult ex-partner, uploading on to the internet sexualised images of the victim to cause them distress. Although revenge porn does not always specifically involve content that would be regarded as obscene, there is no doubt that the online sharing of intimate images without the subject’s consent can cause great distress and upset to the victim. Some of these images are posted widely across the internet and are often extremely difficult to remove.

6.15 pm

Amendment 37 would create a new offence making it illegal to,

“publish a sexually explicit or pornographic image of another identifiable person”.

The new offence would be subject to a 12-month maximum prison sentence. Amendment 40 creates a new offence to capture revenge porn by amending the

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Sexual Offences Act 2003, although the proposed new section does not provide for a penalty for the offence. In addition, it only captures images of another person doing a private act that are shared with the intention that the publisher, or a third person, will obtain “sexual gratification” by looking at them. It would not therefore capture all types of revenge porn, such as images which are being posted not for sexual gratification but with the intent of causing maximum distress or damage to the victim.

I assure your Lordships’ House that laws already exist that capture many instances of uploading or sharing such material. The Government encourage any members of the public who have been a victim of this behaviour to contact the police. All published material, both online and offline, is subject to the Obscene Publications Act 1959, which would cover the distribution of particularly extreme material that has been uploaded on to the internet. We also have in place other communications offences that might equally apply to this behaviour. If the content is grossly offensive, indecent, obscene or menacing it may fall foul of Section 127 of the Communications Act 2003, which makes it an offence to send such material over a public telecommunications network.

In addition, depending on the content, posting this material may be an offence under Section 1 of the Malicious Communications Act 1988, the sentence for which the Bill will increase to two years’ imprisonment. The distribution of this material, if carried out as part of a “course of conduct” which alarms a person or causes distress, could amount to a criminal offence under the Protection from Harassment Act 1997. That Act also provides civil remedies that would prevent more material from being distributed. Lastly, I assure noble Lords that if revenge porn images are of children under the age of 18, then very robust legislation dealing with indecent images of children would come into play.

However, notwithstanding this, the Government are carefully considering what more needs to be done to combat this very damaging behaviour. We are listening to campaigners, including those from across the House, and looking urgently at the best way to address the behaviour that these amendments seek to criminalise. This includes raising awareness of these issues, looking at the existing framework of criminal offences and ensuring that the relevant authorities are adequately equipped to take enforcement action when needed.

If new legislation is required, we must ensure that we address all the issues involved to ensure that we properly target the material that is causing concern and that we capture only the relevant behaviour. This requires detailed consideration and care, as has been widely acknowledged during the debate. Although there is a degree of consensus about what evil we are trying to seek out and criminalise, exactly how we capture it is a complex problem. This debate will certainly help the analysis that will take place in the month or two that follow, and I would of course be happy to see any of those concerned to ensure that we capture adequately and appropriately the behaviour at which these amendments are directed. We will take away these amendments and return to the House with

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our conclusion at a later stage of the Bill. In the mean time, in thanking all noble Lords for their participation in the debate, I urge that the amendment be withdrawn.

Lord Marks of Henley-on-Thames: My Lords, I am grateful to everyone who has spoken in this debate, and to the Minister for his strong indication that legislation will be forthcoming. It is clear that there is consensus on the nature of the problem and on the proposition that legislation is required to deal with it. I entirely accept the point of the noble Baroness, Lady Kennedy, that it is important not to set the hurdle too high by requiring the motivation to be established. Our amendments did not do that. I also entirely accept the point made by my noble friends Lady Berridge and Lady Morris of Bolton that it may be sensible to record this as a sexual offence, to enable the consequences of it to be followed through.

I also take the point the Minister makes—that some offences already capture some elements of this kind of behaviour. However, he plainly accepted that this is not true of all such behaviour and, because the offence is so unpleasant and the consequences so bad, it seems clearly proved that we need a separate offence. I look forward to us all co-operating and trying to word this appropriately. I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

Amendments 38 to 40 not moved.

House resumed. Committee to begin again not before 7.01 pm.

Ukraine (Shooting Down of MH17) and Gaza


6.21 pm

The Lord Privy Seal (Baroness Stowell of Beeston) (Con): My Lords, with the leave of the House, I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:

“Mr Speaker, this is the first time the House has met since the tragic loss of Malaysian Airlines flight MH17 last Thursday and I think that it is right to make a Statement about this and the ongoing crisis in Israel and Gaza. Flight MH17 was travelling from Amsterdam to Kuala Lumpur when it was shot down by a surface-to-air missile over eastern Ukraine. All 298 people on board were killed. It includes 10 of our own citizens, as many as 80 children and victims from nine other countries, including 193 Dutch citizens. It also includes members of an Australian family who had lost relatives on Malaysian Airlines flight MH370 earlier this year.

From Adelaide to Amsterdam, from Kuala Lumpur to Newcastle, we are seeing heart-wrenching scenes of grief as communities come together to remember their loved ones. I am sure the whole House will join me in sending our deepest condolences to the friends and families of everyone affected. Alongside sympathy for

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the victims, there is also anger. There is anger that this could happen at all; there is anger that the murder of innocent men, women and children has been compounded by sickening reports of looting of victims’ possessions and interference with the evidence; and there is rightly anger that a conflict that could have been curtailed by Moscow has instead been fomented by Moscow. This has to change now.

In the last few days I have spoken to Presidents Obama and Hollande, Chancellor Merkel, and the Prime Ministers of the Netherlands, Malaysia, Poland and Australia. We are all agreed on what must happen. First, those with influence on the separatists must ensure that they allow the bodies of the victims to be repatriated and provide uninhibited access to the crash site to enable a proper international investigation of what happened to flight MH17. Secondly, President Putin must use his influence to end the conflict in Ukraine by halting supplies and training for the separatists. Thirdly, we must establish proper long-term relationships between Ukraine and Russia, between Ukraine and the European Union, and above all between Russia and the European Union, NATO and the wider west. Let me take each of these points in turn.

The first priority remains ensuring proper access to the crash site to repatriate the bodies and investigate what happened. The UK has sent air accident investigators and a police-led victim identification team to help with the international effort. The Ukrainian Ministry of Emergency Situations has now searched an area of 32 square kilometres around the crash site and recovered 272 bodies. The work has been made more difficult by the presence of armed separatists. The bodies sitting on a refrigerated train have still not been allowed to leave. The pictures of victims’ personal belongings being gone through are a further sickening violation of this already tragic scene.

It is welcome that international experts have been able to visit the site, but this should not have taken four days, and even now they are still not getting the unimpeded access that they need. I spoke to President Putin last night and made it clear that there can be no more bluster or obfuscation. We expect him to help right now by using his influence with the pro-Russian separatists to secure full access for international investigators and to support the repatriation of the bodies, by handing them over to the appropriate authorities and ensuring they are treated with dignity.

Families want information and answers and we must make sure we get them. The UK and Australia have tabled a joint resolution at the United Nations Security Council demanding proper access in support of a credible international investigation, and we expect this resolution to be voted on this evening. Secondly, I also made it clear to President Putin that we expect Russia to end its support for the separatists and their attempts to further destabilise Ukraine. No one is saying that President Putin intended flight MH17 to be shot down—it is unlikely that even the separatists wanted this to happen—but we should be absolutely clear about what caused this terrible tragedy to happen.

The context for this tragedy is Russia’s attempt to destabilise a sovereign state, violate its territorial integrity and arm and train thuggish militias. Over the past

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month there has been an increasing amount of heavy weaponry crossing the border from Russia to separatist fighters in Ukraine. There is evidence that Russia has been providing training to separatist fighters at a facility in south-west Russia, including training on air defence systems. Seconds before flight MH17 dropped out of contact, a surface-to-air missile launch was detected from a separatist-controlled area in south-eastern Ukraine. According to expert analysis, an SA-11 is the most likely missile type.

In an intercepted conversation, a known separatist leader was overheard claiming that a separatist faction had downed an aircraft. Another separatist leader claimed on Twitter to have shot down an aircraft at about the same time, while a video on social media over the weekend showed an SA-11 missile system, missing at least one missile, travelling back towards Russia. Those who argue that the Ukrainians could be responsible need to explain all of this. In addition, there is no evidence that Ukrainian forces have fired a single surface-to-air missile during the conflict and no Ukrainian air defence systems appear to have been within range of the crash. By contrast, pro-Russian separatist fighters have downed more than a dozen Ukrainian aircraft over the past few months, including two transport aircraft, so the picture is becoming clearer and the weight of evidence is pointing in one direction: MH17 was shot down by an SA-11 missile fired by separatists.

Thirdly, this is a defining moment for Russia. The world is watching and President Putin faces a clear choice in how he decides to respond to this appalling tragedy. I hope that he will use this moment to find a path out of this festering and dangerous crisis by ending Russia’s support for the separatists. If he does not change his approach to Ukraine in this way, then Europe and the west must fundamentally change our approach to Russia. Those of us in Europe should not need to be reminded of the consequences of turning a blind eye when big countries bully smaller countries. We should not shrink from standing up for the principles that govern conduct between independent nations in Europe and which ultimately keep the peace on our continent. For too long, there has been reluctance on the part of too many European countries to face up to the implications of what is happening in eastern Ukraine. It is time to make our power, influence and resources felt.

Over the weekend, I agreed with Chancellor Merkel and President Hollande that we should push our partners in the European Union to consider a new range of hard-hitting economic sanctions against Russia. We should take the first step at the Foreign Ministers’ meeting in Brussels tomorrow. If Russia does not change course, then we must be clear that Europe must keep increasing pressure. Russia cannot expect to continue enjoying access to European markets, capital, knowledge and technical expertise while she fuels conflict in one of Europe’s neighbours. We must do what is necessary to stand up to Russia and put an end to the conflict in Ukraine before any more innocent lives are lost.

Let me now turn to the ongoing crisis in Israel and Gaza. The crisis was triggered by Hamas raining hundreds of rockets on Israeli cities, indiscriminately

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targeting civilians in contravention of all humanitarian law and norms. In the last fortnight, Hamas has fired 1,850 rockets at Israeli cities. This unprecedented barrage continues to this moment, with Hamas rejecting all proposals for a ceasefire, including those put forward by the Egyptian Government.

I have been clear throughout this crisis that Israel has the right to defend itself. Those criticising Israel’s response must ask themselves how they would expect their own Government to react if hundreds of rockets were raining down on British cities today. But I share the grave concern of many in the international community about the heavy toll of civilian casualties. The figures are very disturbing. Over 500 people have now reportedly been killed in Gaza and over 3,000 people injured. The UN estimates that over 83,000 people have been displaced so far. Israel has also faced loss of life, with 18 soldiers and two civilians killed, including 13 soldiers yesterday alone.

I spoke to Prime Minister Netanyahu again about this crisis last night. I repeated our recognition of Israel’s right to take proportionate action to defend itself and our condemnation of Hamas’s refusal to end its rocket attacks, despite all international efforts to broker a ceasefire. But I urged him do everything to avoid civilian casualties, exercise restraint and help find ways to bring this situation to an end. Prime Minister Netanyahu made clear that Israel had been ready to accept each of these ceasefire proposals and had unilaterally implemented a temporary ceasefire in the hope that Hamas would follow suit. My right honourable friend the Foreign Secretary has spoken to President Abbas to welcome his support for a ceasefire and underline our wish to see the Palestinian Authority back in Gaza.

The UN Security Council met in a special session last night and issued a call for an immediate ceasefire. The council expressed serious concern about rising casualties and called for respect for international humanitarian law and the protection of civilians. We strongly endorse that call. It is vital that Hamas recognises the need to enter serious negotiations to end this crisis. In particular, we urge Hamas to engage with the ceasefire proposals put forward by the Egyptian Government. It is only by securing a ceasefire that the space can be created to address the underlying issues and return to the long and painstaking task of building the lasting and secure peace that we all want to see. I commend this Statement to the House”.

That concludes the Statement.

6.34 pm

Baroness Royall of Blaisdon (Lab): My Lords, I am grateful to the Leader of the House for repeating the Statement made by the Prime Minister in the House of Commons. I am also grateful to the Chief Whip for extending the time for Back-Bench questions to 30 minutes.

The shooting down of MH17 over the skies of Ukraine was a tragedy which shocked the world. From these Benches, I join the Leader in expressing our heartfelt and deepest sympathy to the relatives of those who lost their lives. We share the feeling of anger mentioned in the Statement. We have all been greatly

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saddened and dismayed by the images of the site, strewn with bodies and belongings, telling the tale of what was normality and hope but is now despair and destruction.

We have been outraged about the way in which the site has been dealt with—first, access barred to the OSCE by drunken rebels, then the site left open for anyone to trample over and the casual indifference in how the bodies of the deceased have been handled. These are the remains of human beings who were loved by families and friends. One can only imagine what it must be like for them to see the disregard and disrespect with which their loved ones are treated.

The families face not only grief and loss but at the same time multiple practical issues. I would therefore ask the noble Baroness if the Government will identify a senior Minister to co-ordinate support for them—as was done by my right honourable friend Tessa Jowell after 9/11, 7/7 and the tsunami. I would be grateful for an assurance from the noble Baroness that the Government will do everything they can to enable the international community to help secure the site, repatriate the bodies and gather the evidence that shows who is responsible. We welcome the resolution of the United Nations Security Council this evening. Does the noble Baroness agree that as soon as the investigation into the disaster is complete there should be an emergency meeting of European Heads of Government to consider what further steps should be taken?

It would appear that international civil aviation regulators imposed no restrictions on crossing this part of eastern Ukraine. Could the noble Baroness confirm that the necessary safeguards are now in place over this area—and also over any other conflict zone in the world? The evidence is growing that this was not simply a tragedy but a terrible crime. In light of the vile attack on flight MH17, can the Leader say whether there is now any specific travel advice to British citizens planning to go abroad?

This is the moment for a strong and determined EU to step up to its responsibilities and confront Russian actions. Europe must show its sorrow but also its strength. If we, the European Union—born out of conflict and with a mission to keep peace—act together, we can and will be strong. So I welcome the Prime Minister’s commitment to seek a toughening of EU sanctions against Russia at tomorrow’s European Council meeting. Can the noble Baroness tell us what measures the Government want to see considered? Will the Government support decisive steps to extend sanctions, not just against specific individuals but also against Russian commercial organisations to dissuade President Putin from the supply of arms and support for the separatists that he is now providing across the Russian border?

Turning to the horror unfolding in Gaza, I am sure that other noble Lords, like me, wept when witnessing on our television screens the unnecessary death and destruction which grows by the hour. It is intolerable to see the harrowing images of hospitals overwhelmed, mortuaries overflowing and parents devastated as they cradle their dying children. With each day the situation worsens.

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Since the start of this conflict, 20 Israelis have been killed—18 of them soldiers. More than 500 Palestinians have been killed, including countless innocent young children. Their short lives ended in the most brutal and horrific of circumstances. No one would suggest that reducing this conflict to a ledger of casualties is right but I am sure the whole House would agree that we must acknowledge the scale of the suffering in Gaza. The life of a Palestinian child is worth just as much as the life of an Israeli child. Every death will fuel the hatred, embolden Israel’s enemies and recruit more supporters to terrorist groups. We abhor the firing of rockets by Hamas into Israel and we abhor the escalation of Israeli military action. Both must cease. It is innocent people who are suffering most.

The Israelis have the right to live without constant fear for their security; the people of Gaza have a right to live with dignity and peace. We stand up for Israel’s right to defend itself but does the noble Baroness agree that self-defence must be proportionate? The escalation of military action will not bring Israel lasting security. Rather, it deepens the insecurity and brings suffering and death to individuals and the devastation of innocent lives. Does the noble Baroness agree with the Secretary-General of the UN, Ban Ki-moon, that we must continue to press for an immediate ceasefire, an immediate end to the Israeli military operation in Gaza and rocket fire by Hamas, that all sides must respect international humanitarian law and that Israel must exercise maximum restraint? Does the noble Baroness share the concern expressed about Israeli use in Gaza of flechette shells, which spray out thousands of lethal metal darts? I am sure the whole House will agree that the only way to avoid the cycle of violence and perpetual insecurity in the region is to address the root causes of the conflict, and that there must be an immediate return to the negotiating table, and talks for a two-state solution. In the words of Mr Ban:

“Israelis but also Palestinians need to feel a sense of security. Palestinians but also Israelis need to see a horizon of hope”.

6.40 pm

Baroness Stowell of Beeston: My Lords, I welcome the response of the noble Baroness, Lady Royall, to this Statement and for her support. I think it is fair to say that we both speak for the whole House in sending our heartfelt condolences to the families of the victims of the appalling incident in Ukraine. At moments such as this, both Houses of Parliament, the Government and the Opposition speak with one voice to ensure that the deceased are treated with respect and dignity. Above all else it is a matter of human decency that recovery officials in eastern Ukraine are allowed to get on with the task of repatriating the bodies of the deceased and of investigating the crash site fully and unhindered.

I turn now to the noble Baroness’s questions. She asked whether we would identify a senior Minister to co-ordinate support for families. I can confirm that Mark Simmonds, who is the relevant Minister of State in the Foreign Office, is that person. The Prime Minister also said this afternoon, in another place, that he would also want to discuss directly with the families how best we can take care of their needs and concerns.

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The noble Baroness asked whether there should be an emergency meeting of the European Council Heads of Government. The Prime Minister has not ruled out such a meeting but tomorrow evening the meeting of European Foreign Ministers takes place, and it is in that forum that we should set out the tough measures necessary to show that Europe is very firm and resolute in its requirements from Russia.

The noble Baroness also asked about specific travel advice for those planning to go abroad. Eurocontrol is the organisation that sets parameters for where aeroplanes can or cannot fly, while we give advice about individual countries where citizens should or should not travel to. This information is set out on the Foreign Office website, where it is regularly updated.

The noble Baroness asked about sanctions. Clearly, I agree with her that this is a moment of reckoning for Europe and I hope the European Council will not be found wanting. Regarding specific steps that should be taken, we already have what we describe as tier 2 sanctions, some of which are already in place, and the Prime Minister has said that more can be done, which might include naming individuals and increasing the number of asset freezes and travel bans. When the Prime Minister was at the European Council last week, he suggested that this could be broadened to include cronies and oligarchs around President Putin and other leaders—even those without a direct link to Ukraine and Crimea. He made some progress on that and hopes to make more.

The Prime Minister also said this afternoon that it is time to go into tier 3 sanctions, which might extend, for example, to stopping future military sales by any European country going ahead. We have already stopped sales from Britain. There are a number of other suggestions about airlines and banks, particularly ones connected with Crimea, that have not yet been acted on. There are, therefore, a whole set of things which should be set in train and a very clear message sent.

I turn now to the points the noble Baroness made about Gaza. It is most important to stress from the start that the loss of any innocent civilian life is a tragedy and I wholeheartedly endorse her comments about that. The first priority must be a ceasefire and an end to the bloodshed on both sides. I agree that we should not look at this—I think she described it thus—as a ledger of casualties. It is, rather, a deeply human tragedy and what is happening in Gaza is heartbreaking. In the longer term—beyond an immediate ceasefire—we want an end to this cycle of violence once and for all. That would make the Israelis secure and ease the suffering of ordinary people inside Gaza.

The noble Baroness referred to the comments of Ban Ki-moon. We have to be absolutely clear that the quickest way for the situation to be brought to an end is for Hamas to stop the rocket attacks on Israel. I agree that we need to make progress towards a two-state solution but that will not happen while there is no ceasefire and Hamas continues to fire rockets into Israel. That is the root cause of this and it needs to change—and change quickly—to bring peace to the Middle East.

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6.46 pm

Lord Dholakia (LD): My Lords, I extend my sympathy to the Governments, people and families affected by the MH17 tragedy. The Prime Minister is absolutely right to insist that the UN Security Council demands proper access in support of a credible international investigation. He is also right to insist on hardening the economic sanctions. The question I put to my noble friend the Minister is: what would be the impact on the British economy of this measure and could we count on the wholehearted support of the EU, in particular Germany?

Baroness Stowell of Beeston: The most important thing is for the sanctions put in place to have a direct effect on Russia. The existing sanctions have already had some impact—Russia’s economy has shrunk as a result. As far as the future is concerned, and how any additional sanctions might affect the UK economy, we should recognise that our success is based on our security. That also applies to Europe more widely, so in looking at possible further steps we need to make sure that, as member countries of the European Union, we apply measures fairly in terms of their impact. We must, however, not lose sight of the fact that security is a very important part of our success.

Lord Warner (Lab): Can the Minister please give us some figures on the Israeli casualties arising from the 1,850 rockets? Will she also acknowledge that there is a slight disjunct in this Statement between the robustness in the Government’s response on Russia and their response on Israel? Will she recall that Israel is becoming a serial offender in this area? Israel, under Operation Cast Lead, killed hugely larger numbers of Palestinians in its response to rockets fired over. It is a repeat of what happened there. Those of us who went to Gaza and saw what the Israeli forces had done in Gaza to civilians—not to Hamas militants—as a result of Operation Cast Lead are now seeing this repeated. Will the Government not consider taking the kind of robust resolution to the United Nations that they are doing with Russia, in relation to the disproportionate action taken by Israel?

Baroness Stowell of Beeston: It is important for me to say that this conflict is taking a terrible toll. Along with the rest of the Government, I am deeply concerned at the high number of civilian casualties and the humanitarian impact of the conflict. The people of Israel have the right to live without constant fear for their security and the people of Gaza have the right to live safely and in peace. The most important thing is that we bring this current conflict to an end and that steps are taken to make this ceasefire durable so that it is not repeated. That is the only way in which we can ensure the safety and security of all people in the region and make steps towards a longer two-state solution.

Baroness Deech (CB): Does the noble Baroness agree that there is something distasteful about this concentration on numbers and proportionality? In recent months, some 2,000 Palestinians have been killed in Syria without, I gather, much notice being

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taken in this House. The reason for the civilian casualties in Gaza appears to be that Hamas hides its weapons and rockets in schools, mosques and hospitals and is prepared to use civilians as a shield. One simply cannot therefore make a parallel between the two. If a country has to defend itself, I cannot imagine what the answer is to proportionality when the entire population of Israel is only 6 million, including 1 million Arabs. I hope that the noble Baroness will encourage the Government to complain to UNWRA about the rockets hidden in schools and to the Red Cross about the use of civilians as human shields.

Baroness Stowell of Beeston: As I said when I repeated the Statement made by the Prime Minister in another place, we have been absolutely clear in our remarks to Israel about the needs for its response to be proportionate and to minimise any civilian casualties. The most important thing that we are trying to encourage is an end to this bloodshed on all sides, and we continue to press for an urgent agreement to that end.

The Lord Bishop of Coventry: My Lords, perhaps I may return us to the tragic event of the downing of flight MH17 to join others in expressing deep and profound condolences to the families, friends and colleagues of those who died. In particular, I express the deep sympathies of those of us who spend quite a lot of our time caring for those who are bereaved and, in so doing, I pay tribute to the Protestant, Anglican, Old Catholic and Roman Catholic ministers who have been trying to care for the stricken families at Schiphol Airport. They have a very demanding task.

As we have heard, the bereaved are suffering from a deep and dreadful trauma. The deaths were sudden and led, of course, to shock on the part of those bereaved. They were inflicted by violence, leading to anger. They took place in foreign lands where, as we know, the bodies are out of reach—not only that but lying around in the heat, in body bags, in full view of the world’s media. Now, as the noble Baroness, Lady Royall, powerfully explained, they are being disregarded and disrespected. It is a psychological, pastoral and spiritual nightmare of unspeakable proportions. My question is simply: will the Government continue to use appropriate means to ensure that the bodies are treated with dignity in this period and, of course, returned with urgency?

Baroness Stowell of Beeston: Our first priority over the last few days has been applying pressure to Russia to use what influence it has to ensure that what occurs is exactly what the right reverend Prelate asked for. While this has not yet been confirmed, I hear that there are now reports that the refrigerated train has left Torez and is now en route to Kharkiv. That is exactly the kind of progress we need to see continue so that people are able to grieve, while knowing that their families and friends are being treated properly and being looked after by the people who they would want to be doing so.

Baroness Morris of Bolton (Con): My Lords, I declare my interests as set out in the register. At the beginning of this crisis in Gaza, my right honourable

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friend William Hague called for an immediate ceasefire and a fundamental transformation of the situation in Gaza. Can my noble friend the Leader of the House say whether the Government are talking to Qatar to see whether it might be best placed to broker a ceasefire, following yesterday’s talks in Doha? Regarding the long-term fundamental transformation of Gaza, does she agree that economically active people seek peace and that all Palestinians should be free to trade, travel, hope and dream, and lead ordinary lives?

Baroness Stowell of Beeston: The Foreign Secretary is in contact with a range of countries in the region to try to progress the situation there. My noble friend is absolutely right that we need to ensure a durable ceasefire, so that all people who are desperately affected by this current situation find some peace and security as soon as possible.

Baroness Symons of Vernham Dean (Lab): My Lords, my first question is about the part of the Statement dealing with MH17. During the course of the weekend there were widespread reports that the black box had been removed from the wreckage of the aircraft, so that investigators—independent people—could not look at it. Do the Government have any independent evidence to indicate whether the black box has indeed been taken away already?

On Gaza, perhaps I may return to the question raised by my noble friend Lord Warner and referred to from the Cross Benches about proportionality. Proportionality is important in international law, so can the noble Baroness the Leader of the House tell us whether the Government believe that it is proportionate for Israel to have taken 500 lives and made 83,000 people homeless as a result of its recent action? Do the Government believe, since the Prime Minister raised this question with Mr Netanyahu, that his response has indeed been proportionate?

Baroness Stowell of Beeston: On the first part of the noble Baroness’s question, I cannot stress enough how much the international community is united in its call for a swift, transparent and credible investigation into the incident in Ukraine. We understand that there were two black boxes on board the aircraft and are aware of reports that one of those black boxes has now been found. We urge that this should be passed on to the International Civil Aviation Organization at the earliest opportunity. It is so important that all the proper and relevant authorities are able to do their work in response to this situation.

As to the noble Baroness’s question about Gaza and Israel, as my right honourable friend the Prime Minister said, he was clear during his call last night to Prime Minister Netanyahu that he should do everything to avoid civilian casualties, exercise restraint and help find ways to bring that situation to an end.

Lord King of Bridgwater (Con): My Lords, while I join my noble friend in offering the deepest condolences to all those who have suffered from this appalling outrage with the Malaysian airliner, there was one sentence in her Statement that I found difficult to accept. It was when the Statement said:

“It is unlikely that even the separatists wanted this to happen”.

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This is a disaster for everybody concerned and it has obviously made the position of President Putin even more difficult than it was before. The separatists are now pilloried right across the world and, if they are responsible for this, have done their own cause enormous damage as well.

This has happened against a background of bombing of this area by the Ukrainian air force and of the separatists shooting down some aircraft in self-defence. It is important to recognise the situation in which this has happened. I say in passing that I find it extraordinary that the European organisation responsible for flight safety gave airlines permission to fly over this area. Having said that, two weeks ago, while on their way to the World Cup, Angela Merkel and President Putin called for Ukraine and the separatists to stop fighting and start talking. That is the background against which this has happened. There must be a cessation of violence and an opportunity must be given for an independent inspection of what has happened. Efforts must be made at the earliest possible opportunity to get constructive talks on the tragedy that has followed this episode of violence.

Baroness Stowell of Beeston: As the Statement says, even the separatists did not want to target a commercial airliner: that is the point we are trying to get at. It is not a question of evidence being gathered to show that there was that intent; it is about the aircraft that they were focusing on. As regards my noble friend’s point about the fly zone above this area, it is important to note that the controls that were in place extended to a specific height, and that this commercial airliner was above the height determined to be safe. However, those controls have now been extended and there is a complete lockdown of the whole area at any height. My noble friend rightly said that the fighting needs to stop and talking needs to start. We are very clear that Russia needs to take steps to de-escalate the action in Ukraine. We need to ensure movement to bring security to Ukraine very soon.

Lord West of Spithead (Lab): The shooting down of MH17 was clearly an unexpected atrocity. However, we must not be surprised at that because atrocities happen every day in civil wars, as we see in Syria and Iraq and saw in Bosnia. I am afraid that these irregulars will behave in a very inhumane way: that is what happens in civil wars. There is no doubt whatever that Putin has been caught on the back foot. He has been caught out in this situation for the second time. The first time was the revolution in Kiev, where he was very badly caught out. We must think very carefully about how the Russians perceive this. They conflate NATO, the EU and America and see them all as a threat. We never gave any credit whatever to the fact that Crimea has a special status. There is no love lost between me and Putin, but does the Minister really believe that forcing him even further into a corner will help the settlement within Ukraine? Would it not be far better to aim to stop all fighting and have a conference whereby we can leave Russia primarily to broker some sort of agreement because, in the end, the Minister must agree, it is only with the Russians that we can get peace in this region?

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Baroness Stowell of Beeston: The UK has been at the forefront of calling for a ceasefire, for the fighting to stop and for Russia to de-escalate the situation. However, because of the aggression that Russia has shown, we believe that it is vital that we also show strength in response to that, and that we are clear about the sanctions that are necessary to try to resolve this situation.

Baroness Falkner of Margravine (LD): My Lords, will my noble friend please explain what is meant on page 6 of the Statement, where the Prime Minister says:

“Those criticising Israel’s response must ask themselves how would they expect their own Government to react if hundreds of rockets were raining down on British cities today”?

Will she tell me—perhaps in writing if she cannot tell me now—what is meant by drawing an analogy between what might happen in British cities with what is happening between Israel and Palestine, particularly what is happening in Gaza this week? I respectfully say to her that, even at the height of the Northern Ireland Troubles, this was not an analogous situation, and any idea that it is disregards the history of the Middle East over 100 years. Finally, will she also say—in writing if she cannot do so now—whether she recognises the importance of proportionality and distinction in international humanitarian law?

Baroness Stowell of Beeston: The Prime Minister’s Statement is very clear in the terms that he is using. We are absolutely clear that the loss of any civilian life is an absolute tragedy. We are also clear that the first step to bringing about peace is for Hamas to stop firing rockets at Israel. As I said when I repeated the Statement, Israel has taken steps to introduce a temporary ceasefire that was not reciprocated by Hamas. Clearly, the Government are looking to ensure that all sides in this argument work together to bring forward peace. That is what we want to see happen as soon as possible.

Lord Kilclooney (CB): Given that the EU Foreign Ministers will meet tomorrow, has the Minister any good reason to expect that they will reach a unanimous decision that will be effective?

Baroness Stowell of Beeston: As regards what has happened over the past few days, there was a meeting last week of the European Council where it was agreed that further steps were necessary in terms of strengthening sanctions. That decision was taken before the tragic incident on Thursday. We have been talking to our European partners throughout the weekend and have had extensive discussions. My right honourable friend the Foreign Secretary will work very hard to ensure that there is clarity tomorrow and that further steps are taken in accordance with what I have already said we believe is necessary—to force Russia to withdraw and de-escalate.

Lord Marlesford (Con): My Lords, on the—

Lord Campbell-Savours (Lab): My Lords—

Lord Popat (Con): May we hear from this side? The noble Lord will have an opportunity to speak later.

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Lord Marlesford: My Lords, on Russia, I welcome the Prime Minister’s suggestion that it is time to make our power, influence and resources felt. May I make a practical and proportionate suggestion that one measure would be to suspend all civil air flights to and from Russia? Ideally, this would cover the whole EU and the USA. Although, Mr Putin would, of course, find methods to fly people in and out of Russia, it would be at a heavy cost, both economically and in terms of Russia’s status in the world.

Baroness Stowell of Beeston: I take note of the proposal put forward by my noble friend. I do not believe that that is one of the specific steps that we are currently considering but I am happy to talk further to him about his idea.

Lord Campbell-Savours: My Lords, will the noble Baroness reply by not reading the reply to a question she has not heard? She seems to be reading all these answers. Will she answer the question asked by my noble friend Lord Warner earlier about why there is such a big difference between the way that Israel is being treated in the crisis that it has created by occupying the West Bank of the Jordan and the far more vigorous treatment being meted out to the Russians when they have not even invaded a country?

Baroness Stowell of Beeston: I have been very clear in responding to the points raised in the course of this Statement. In respect of Gaza, there are three situations that need to be dealt with. The first concerns an immediate ceasefire between Hamas and Israel, and stopping the fighting and bloodshed that are occurring there. Then we need a durable ceasefire to ensure that this kind of situation is not repeated; all parties involved in that need to play their part. Clearly that is the only way of our then moving towards the longer-term situation of ensuring that the Middle East peace process has some prospect of succeeding.

Lord Steel of Aikwood (LD): Will my noble friend confirm that of the more than 500 civilians killed in Gaza, more than 100 were children? Will she therefore give the figure, which has been repeatedly asked for, for the number of Israeli citizens killed by Hamas rockets so that we can understand what the word “disproportionate” means? Will she accept from me, as someone who visited Gaza in the aftermath of Operation Cast Lead, that that amount of carnage and mayhem manifestly did not stop the rockets coming into Israel then, and nor will this? That is surely the point. There is no substitute for the painstaking talks of the kind in which John Kerry was engaged to get Hamas to stop violence against Israel and to get Israel to cease its settlements in the West Bank.

Baroness Stowell of Beeston: The number of Israeli civilians killed and injured by Gaza rockets amount to two killed and 13 treated for shrapnel-related injuries; 13 Israeli soldiers have been killed during the ground operation. But as the noble Baroness, Lady Royall, said in her response to my Statement, this is not about comparing numbers. All loss of life is a real tragedy. It is important that we acknowledge that the rockets being fired from Gaza into Israel are indiscriminate.

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Clearly, we want Israel to respond proportionately and minimise the loss of civilian life. More than anything, we want this situation to stop and the bloodshed to end. That is possible only when both sides cease fire. Certainly, the most important first step in that would be for Hamas to stop firing its rockets.

Lord Stoddart of Swindon (Ind Lab): On Ukraine, is it not reprehensible that the tragedy of MH17 is being used for so much international political rhetoric? Would it not be better to have some tact and diplomacy? We have heard that the Prime Minister had a 30-minute conversation with Mr Putin. We have heard what financial sanctions were proposed, but presumably during the 30-minute telephone call Mr Putin had something to say. Will the Minister tell us exactly what he said and whether he confirmed that he wished to have an international investigation into the downing of MH17?

Baroness Stowell of Beeston: The current calls for Russia to de-escalate and the sanctions that we are putting in place are in response to Russian activity in Ukraine, which predates last week’s incident. It would be wrong of the noble Lord to suggest that all our efforts being made now are only on the back of the terrible crime committed on Thursday. What happened on Thursday has focused minds, but it has not led to the start of our demands for Russia to take all the necessary steps to withdraw from its aggression in Ukraine.

As for what President Putin said in response to my right honourable friend, I do not have details of that. I can say to the noble Lord that clearly the conversation that the Prime Minister had with President Putin has had some influence. Thankfully and finally, we are starting to see some co-operation from the separatists in Ukraine to help ensure that the bodies there are treated with the dignity and respect that they deserve, that the right authorities are properly able to do their job, and that we can get to the bottom of just what happened.

Lord Cormack (Con): My Lords, building upon the wise words of my noble friend a moment ago and on the extremely sensible comments of the noble Lord, Lord West, does my noble friend accept that if we are not sensible we shall drift into another cold war from which no one will benefit? Could we not ask the Secretary-General of the United Nations to summon a special conference of all the parties to address the Ukrainian situation: to ensure the territorial integrity of Ukraine, a proper recognition of the legitimate interests of Russia, and an end to this drift—as I say—into a new cold war?

Baroness Stowell of Beeston: My noble friend is right to raise the United Nations. I repeat what I have already said: the UK is playing a leading role to secure UN action. There is a meeting of the UN tonight. There is an Australian-led draft resolution, which the United Kingdom very much supports. Along with Australia, we have accelerated discussions on this, which welcomes a Ukrainian-led investigation, containing strong language on access to, and dignity in dealing with, the bodies and incorporating tougher UK language from the draft press statement.

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Lord Williams of Baglan (CB): My Lords, in the course of a week we have seen two terrible tragedies claiming hundreds of innocent lives. Other noble Lords have suggested that behind both crises, whether in the Middle East or in Ukraine, we need to see a more proactive diplomacy that is not limited to 30-minute telephone conversations or meetings of the EU Council, but one that resembles diplomacy of the past that confronted international crises. In the dark days of the Cold War, high-level western envoys went to Moscow to meet Kruschev or Brezhnev to address the great crises of the day and try to find solutions. We are not doing that in the case of either Ukraine or the Middle East. Of course it is awful that lives been lost in both cases, but we need to find a diplomacy that meets these crises.

In the case of the Middle East, diplomacy has collapsed. Perhaps it is no accident that events in Gaza follow on six weeks after the collapse of the Middle East peace process. We saw the resignation of the American envoy, Martin Indyk, because of the unwillingness of the Government of Prime Minister Netanyahu to come to an agreement with President Abbas. This is the background to this crisis and this Government must join with others in looking for diplomatic ways forward. Prime Minister Netanyahu’s Government have avoided political solutions. We must impress on him the need for those.

Baroness Stowell of Beeston: For the United Kingdom, my right honourable friends the Prime Minister and the Foreign Secretary are engaged in diplomatic talks and processes, and I assure all noble Lords that these will continue and that all our energies will be applied to achieving the kind of resolutions that we think are important for all parts of the world where there is conflict.

Lord Popat: My Lords, the time is up for the Statement.

Criminal Justice and Courts Bill

Criminal Justice and Courts Bill2nd Report from the Constitution Committee3rd Report from the Delegated Powers Committee14th Report, Session 2013–14, from the Joint Committee on Human Rights

Committee (2nd Day) (Continued)

7.20 pm

Amendment 41

Moved by Lord Foulkes of Cumnock

41: After Clause 28, insert the following new Clause—

“Assault on workers selling alcohol

(1) A person who assaults a worker who is required to enforce or comply with the Licensing Act 2003—

(a) in the course of that worker’s employment, or

(b) by reason of that worker’s employment,

commits an offence.

(2) In this section—

“worker selling alcohol” means a person whose employment involves them selling alcohol under the provisions of the Licensing Act 2003;

“employment” in this context means any paid or unpaid work whether under contract, apprenticeship, or otherwise.

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(3) A person who is guilty of an offence under this section is liable—

(a) on conviction on indictment to imprisonment for a term not exceeding two years or an unlimited fine (or both),

(b) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory minimum (or both).”

Lord Foulkes of Cumnock (Lab): My Lords, we now move away from great events around the world to rather more mundane matters here at home. None the less, they are very important matters. Noble Lords will recall that last year my colleagues in another place and I in this House moved an amendment to the Anti-social Behaviour, Crime and Policing Bill which would have created a separate legal offence for assaulting a worker in the course of his work. Our goal was relatively simple; it was to create a new, tougher penalty for assaulting people when they are carrying out their work which would encourage prosecutions, act as a deterrent and, most important of all, do justice to the physical and mental suffering of the hundreds of thousands of workers who are assaulted in the course of their employment. Unfortunately, although many noble Lords, including Cross-Benchers and even members of both parties in the coalition, were sympathetic to the general aims of my amendment, it did not succeed.

One of the main concerns raised at the time was that the amendment was too wide in its scope and would cover so many workers that it would be ineffective. I have taken all those criticisms on board in drafting the amendment before the Committee today. Once again, I have had the help of the Union of Shop, Distributive and Allied Workers, one of the most effective unions in the country looking after the interests of its many members in shops and centres around the United Kingdom.

This amendment, unlike the previous amendment, focuses specifically on those workers who are required to enforce and comply with the Licensing Act 2003. They are acting in a policing capacity and if they do not carry out what they are required to do, they are committing an offence. This amendment would create a separate either way offence of assaulting a shop or bar worker selling alcohol. In doing so, it also takes into account another criticism made by the Member of Parliament who is now the new Solicitor-General when a similar amendment was tabled by my colleague, Labour’s shadow Justice Minister, Dan Jarvis. The right honourable Member for Swindon South, our new Solicitor-General, expressed sympathy with the aims of the amendment, but commented that if we were truly serious about higher penalties such an offence should be either way, not summary as was originally intended. I hope, therefore, that my seriousness on this issue has been affirmed to the Solicitor-General, and to those in his party in this House and elsewhere who may have already been sympathetic to the aims of the amendment, as I have taken on board the fact that it should be an either way offence.

For noble Lords who are still sceptical of the case for granting workers who sell alcohol special protection through a separate criminal offence and those leaning towards supporting the amendment, I shall give one example—I have many more, but because of time and

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because I knew there are other amendments I shall give just one—which captures the issue the amendment seeks to resolve. It is the story of Barry and Teena who own a pub in Leek called “The Priory”. One Sunday night, after the bar had closed, revellers approached Barry in order to purchase some more drinks. It happens again and again like that. Barry rightly refused to serve them. He would have been breaking the law if he had served them. At that stage, one of the revellers threw a glass at Barry’s arm, jumped over the counter and punched the couple’s son, Mark, in the face, splitting his lip. Teena came out to see what was happening and was immediately assaulted by a woman standing behind the bar. Her nose was broken, and when the blood was gushing out of her nose and face, she suffered an asthma attack and needed to be hospitalised. The police arrived, and two people, one man and one woman were arrested. Astonishingly, both were let off with just a caution after that attack. Barry and Teena were two people upholding the law on our behalf, and if they had not done that, they would have been breaking the law. I have other stories, and perhaps I will have another opportunity of telling them.

Why do we need the amendment? This tragic episode and others underline three things which are currently wrong with our criminal justice system. First, and most importantly, the incredibly dangerous and vital public function of workers who serve alcohol goes completely unrecognised. These are men and women who are charged, like the police, with enforcing the law. They must refuse service to those who are underage or too intoxicated. If they refuse to do so, they face legal action, and even the potential loss of their licences and thus their livelihoods. Unlike the police, they have no additional protection for the additional service and for the grave danger it puts them in. What they receive, like all workers, is a clause in the sentencing guidelines—noble Lords who took part in the debate last year will recall this—which makes the assault of a worker providing a public service one of 19 aggravating factors.

There are two problems with the current regime. First, it fails to recognise the additional danger that those who have to sell alcohol face vis-à-vis workers in most other professions and their vital contribution to public order and safety. According to the Health and Safety Executive’s latest figures, alcohol was the trigger to threatened or actual violence in 38% of cases. The second problem is leniency. The regime has produced a system with disincentives to prosecution and which is too lenient. Unfortunately, the fact is that until we start acknowledging the service done by and the added danger faced by those who serve the public alcohol, in a similar manner to how we do with the police, prosecutions will fail to reflect the seriousness of the crime, and victims like Barry and Teena will continue to be deprived of proper justice. At present, as the assault of workers who sell alcohol usually falls into the category of common assault, with the relatively lenient punishments on offer, it results in the Crown Prosecution Service deciding that it is not worth prosecuting. This has been the experience of a range of groups which are supporting my amendment: USDAW; National Pubwatch;

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the Wine and Spirit Trade Association; the Retail of Alcohol Standards Group, whose members include almost all major supermarkets; and the Association of Convenience Stores. They all support the amendment. Lenient sentencing and a lack of prosecutions feed into a vicious cycle whereby incidents go unreported as workers lose faith in the justice system. Action must be taken.

My amendment will address the problems in three ways. First, by creating a separate offence for assaulting someone who sells alcohol, one that carries a harsher penalty of either up to six months in prison and a fine of up to £500 for those charged summarily—I take what was said earlier about short prison sentences—or, up to two years in prison or an unlimited fine for those convicted on indictment at the Crown Court, the amendment recognises the additional danger faced by this set of workers and their special public service. Secondly, in doing so the amendment will create a greater deterrent through stiffer penalties. I do not want this to happen. I do not want people to be committing this offence and filling up the prisons with all the extra costs involved. That is why having these serious penalties will mean that it is less likely to happen because of the greater deterrence. Thirdly, I hope it will encourage more prosecutions as a new separate offence is easier to determine than common assault, as the Minister knows. I am very pleased that he is dealing with the amendment today. We are not related, but I have developed a friendship with him since he joined this House, and I know he takes his work and this kind of matter very seriously indeed. Common assault, which is currently how such acts are classified, has a number of mitigating and aggravating factors. As this carries stiffer penalties, it would incentivise the CPS to make more prosecutions.

In conclusion, I believe that the amendment would offer greater protection to workers selling alcohol—something that it is often all too easy for us in the comfort of this Chamber to take for granted. The time has come finally to acknowledge the grave danger often faced by those who serve us and enforce our law in the pubs, clubs, bars and shops that all of us frequent and love so much. The time has come for those of us in this Chamber who benefit from their actions to do something to acknowledge that and return the favour to them. I have much pleasure in moving this amendment. I beg to move.

7.30 pm

Lord Kennedy of Southwark (Lab): My Lords, many years ago, I was a shop worker. Although I never sold alcohol, I certainly recall having to deal with difficult situations. I was then a member of USDAW and active in the trade union so I am delighted to speak in support of the amendment today. USDAW is one of the most effective unions operating in the UK today. For many years, it has run its Freedom from Fear campaign, which raises the issue of shop workers put in difficult and threatening situations just because they are going about doing their job. It has put proposals to the Government and others to ensure that shop workers—in this case, people working in pubs, bars and clubs—can do so free from fear of attack.

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The amendment would create a specific offence of assaulting a bar or shop worker selling alcohol. This group of workers has a unique set of obligations put on them by the Licensing Act 2003. I and other noble Lords think that they deserve similar protection while they seek to enforce the law on our behalf. My noble friend has taken on board the comments made by Mr Robert Buckland in the other place. As he mentioned, he has just been made the new Solicitor-General in the Government.

I hope that the Minister will not tell the House that we already have adequate protections for these workers anyway. I certainly do not believe that it is the case. They are certainly some of the most vulnerable workers working in the retail and service sector. If he is not prepared to accept the amendment today, I hope he will agree to meet me, my noble friend Lord Foulkes, representatives from USDAW and all the retail organisations which, as my noble friend said, are backing this amendment, and that we can persuade him that workers selling alcohol need this additional protection.

Someone working with the public is especially traumatised by an attack at their place of work. They usually have to go back into that situation, facing a constant stream of strangers, any of whom could become violent. Reports of anxiety and panic attacks on returning to work after an assault, with the constant worry that the next person walking in through the door could be their attacker, are not uncommon.

We are all aware of the trigger that alcohol can be to violent crime. Figures have been produced by the police, the Health and Safety Executive and others that prove that; it is not in dispute. Workers who serve alcohol have to enforce the law, as my noble friend says. They are required to obtain proof of age from the purchaser, to refuse to serve alcohol to someone who is drunk and aggressive and to refuse the proxy sale of alcohol. The staff have no option; they have to enforce the law. These actions are all major triggers for assaults on staff, but if they are not undertaken the staff could be liable for prosecution themselves, resulting in a heavy fine, maybe the loss of their job and possibly the loss of the licence for the business. We should also remember that these people could also be working late at night, possibly on their own, in a corner shop or a petrol station. Some workers are too traumatised to return to the same job and lose their livelihood in addition to the physical effects that they have had to endure. Victims rightly feel that sentencing should reflect those effects on their lives.

The sentencing guidelines for all types of assaults state that that an offence,

“committed against those working in the public sector or providing a service to the public”,

is an aggravating factor that adds to the seriousness of the crime. Creating a specific offence would send a clear message that violence against somebody serving the public is not acceptable. Preliminary evidence from Scotland where a similar measure was introduced for emergency workers shows that that the number of such incidents has declined since the legislation was introduced. That is another reason why we are better together, so that we have the experience of our colleagues in other parts of the United Kingdom.

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I want to mention one incident that happened to a team leader at a checkout at a large supermarket in Rochdale. That store had only one security guard. The team leader had to step in and assist whenever the checkout person received abuse or had a problem. In October last year, that team leader went to help when a gang of youths had been refused the sale of alcohol and were racially abusing the security guard. The youths went away, the incident was reported, but when the police arrived they had already left. The next evening another security guard was on duty and he shouted for help as the same gang of youths approached the store. One youth started to spray liquid in the face of the security guard, and the team leader ended up in a scuffle with one of the youths. He woke up in hospital eight days later, having suffered a severe heart attack, probably caused by a heavy kick to his chest. His wife had been told that he was unlikely to make it. He had been kicked in the face and lost some of his teeth and his colleagues who saw the attack had to be counselled for trauma. The attack has devastated his life. His heart has to be constantly monitored and he struggles even to walk to the local shops. He cannot do things that he used to enjoy doing with his family, including playing football with his son. He has not been able to go back to work; the doctor has said that he will be off work for at least 12 more months; his take-home pay used to be £1,300 a month, but he now receives sick pay of just £300 a month. Two males and one female took part in the assault; one youth received a small fine, the woman has not been found, and the other youth has been charged—the case will be heard in the autumn. We should all be concerned that, unless people who assault front-line staff receive adequate sentences, this sort of incident will continue. There was another case of a landlord in Bolton who refused to serve a young man whom he knew to be underage. When he took his dog out for a walk that night, the youth beat him up, kicking his face when he was on the ground and causing extensive cuts and bruising. The police arrested him and the next day he got a caution.

We all owe shop workers, particularly those who serve alcohol and have to enforce the law, proper protection. They do not get it at present and it is time that they did.

The Lord Bishop of Chester: My Lords, I have considerable sympathy for the amendment, although I wonder how it will interact with the remainder of the law on assault if this is criminalised in a specific way. I declare an interest in that I used to be a publican. When I was employed in a university, one of the members of staff had to go down to the magistrates’ court and swear that they were a fit person to keep order. That is the only time when I have been into a court of law in my life, and the magistrates were not quite sure that this young clergyman would be able to do so. My main task was to prevent the students drinking the profits rather than sorting out any brawls.

I would like the Minister to comment on the two examples that we have been given of the use of caution where assault takes place. If a publican’s wife was assaulted and her nose was broken and this simply resulted in a caution, that is widely held to be inadequate

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as a legal response. I hope that when he comes to reply the Minister will deal with that point, especially if he is not prepared to accept the amendment.

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, it has been a short but informative debate, informed by experience from quarters where we do not necessarily expect it to be shown, but none the less welcome for that.

The amendment would make it an offence to assault a person who is required to enforce or comply with the Licensing Act 2003, either in the course of that worker’s employment or by reason of that worker’s employment. The proposed new offence would be triable either way, with a maximum penalty on indictment of two years’ imprisonment, or an unlimited fine, or both.

The House will of course join me in condemning assaults on anyone who comes into contact with the public as part of their work. No one should be expected to face violence because they are simply doing their job. In particular, it is essential that the criminal justice system deals adequately with violence against people who are engaged in the licensed sale of alcohol—for instance, in pubs, off-licences, supermarkets or corner shops. However, the Government do not at the moment agree that creating a new offence is the right way to combat this unacceptable behaviour. The Government are committed to creating new offences only where it is considered necessary, there are no other reasonable options available, and there is evidence to support the need for a new offence. I will endeavour to explain why we do not believe that is the case in relation to assaults on workers enforcing or complying with the Licensing Act 2003.

There are already a number of offences that criminalise disorderly and violent behaviour, and which apply in cases of violence towards such workers. They cover the full spectrum of unacceptable behaviour, from using abusive language to the most serious and violent offences. In every case referred to the Crown Prosecution Service where there is sufficient evidence to justify a prosecution, prosecutors must then go on to consider whether a prosecution is required in the public interest. The section of the Code for Crown Prosecutors giving guidance on the public interest test states:

“A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public”.

If the evidence is there and the code is satisfied, the CPS will prosecute.

Moreover, sentencing guidelines, to which there has been reference, specify that where an assault is committed against someone providing a service to the public, whether in the public or private sector, this is an aggravating factor and so should result in a higher sentence within the current maximum. The Sentencing Council has made clear in its guidance that that includes those who work in shops and the wider retail business and such people who might well be enforcing or complying with the Licensing Act 2003.

The noble Lord, Lord Foulkes, referred to the observations of my honourable friend Robert Buckland, now the Solicitor-General. It is not normal for a Minister to give advice from the Dispatch Box but the

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noble Lord, as an experienced parliamentarian, will know that the Solicitor-General and the Attorney-General are in fact the law officers responsible in the case of unduly lenient sentences and can themselves initiate an appeal to the Court of Appeal should sentences be regarded as too long. In fact anyone can refer those sentences for consideration by the law officers, so that is a matter that he may well wish to convey to USDAW if it is not already aware of that.

Currently, the only offences of assault on members of specific groups are the offences of assault on a police constable in the execution of his or her duty and assault on an immigration officer. Creating a new offence of assault on workers selling alcohol would single out this type of assault as the only one meriting a specific offence alongside assaults on these public servants. I do not believe that this can be justified.

Whoever the victim, the degree of seriousness of an assault should depend on the particular facts of the case. Why should it be worse or more traumatic for the victim for someone to be assaulted at work rather than on the bus going to work, or for that matter when locking the front door as a result of an intrusion into the home? Of course, where the evidence indicates a more serious offence than merely common assault, whoever the victim, more serious charges are available to the prosecution, such as assault occasioning actual bodily harm, which carries a maximum penalty on indictment of five years’ imprisonment or an unlimited fine, or both, or grievous bodily harm under the 1861 Act.

There was reference to the position of police officers, who of course occupy a very important role. The offence of an assault on a constable or an immigration officer is a separate matter, although interestingly the proposed “triable either way” offence of assault on a worker selling alcohol would carry a higher sentence in the amendment than the offence of assault on a constable. I think it is fair to say that assault on a constable in the execution of their duty tends to be used for minor offences, whereas if there is a serious assault on a police officer it will be charged under the Offences Against the Person Act.

Noble Lords referred to cases that are not proceeded with, rather surprisingly on the facts of one particular case involving Barry and Teena, as the noble Lord, Lord Foulkes, said. USDAW has highlighted many cases that never reach the courts because the police and prosecution decide not to prosecute. As the Committee will appreciate, the investigation and prosecution of cases is a matter for the police and the Crown Prosecution Service, and regardless of the existence of a particular offence it is ultimately a matter for them whether they decide to investigate and prosecute.

Reference was made to the creation in Scotland of a specific offence of assaulting an emergency worker and it was suggested that this had increased the prosecution rate and resulted in a decrease of such offences. That was raised by the noble Lord, Lord Kennedy. Of course I entirely agree with the comment that we are better together. Be that as it may, what one can say about that, and there has been some research into it, is that it is difficult to draw any conclusions. It may well be that these offences are now being prosecuted

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under the legislation covering assaulting emergency workers whereas previously they would have been prosecuted under the common law of assault. The figures prior to the creation of the offence in the 2005 Act do not distinguish between those assaults that were committed against emergency workers and assaults against other people. It may be right, but we suggest that we cannot draw anything from that.

While I would be very happy to meet the noble Lords, Lord Foulkes and Lord Kennedy, to discuss matters further, at the moment we are unpersuaded of the need for these further offences despite the variation from the amendment put forward on the Anti-social Behaviour, Crime and Policing Bill. In light of the points that I have endeavoured to draw to the attention of the House, I hope that the noble Lord will feel able to withdraw his amendment.

7.45 pm

Lord Foulkes of Cumnock: My Lords, I am grateful to the Minister for replying in his usual courteous and helpful way, which I greatly appreciate and which I know the House generally appreciates. I was encouraged by three things that he said. First, he said that the Government do not agree at the moment, which indicates that they are open to looking at the issue further. Secondly, I liked the suggestion that he made about the Solicitor-General and the Attorney-General being able to appeal if sentences are too lenient. I will certainly draw that to the attention of USDAW and others.

There were other Members who wanted to take part in this debate. The noble and learned Lord, Lord Hope, wanted to be here and apologises for not being able to. He said that he would have raised the question about the experience in Scotland. The noble Baroness, Lady Coussins, and the noble Viscount, Lord Montgomery, also wanted to be here. We had rather a long debate earlier, for which I must say I take some of the blame. Only some—a very small part, in fact, I say to the Whip who was nodding rather too enthusiastically there.

Thirdly, the most helpful suggestion of all those that have been made came from my noble friend Lord Kennedy and was very kindly picked up by the Minister—that he is willing to meet a group, including my noble friend and myself, of USDAW and representatives of the trade to discuss this further. I will pass on that very kind invitation and I am sure that it will be taken up. In the light of all those helpful comments, I beg leave to withdraw the amendment.

Amendment 41 withdrawn.

Amendment 42

Moved by Lord Sharkey

42: After Clause 28, insert the following new Clause—

“Disregarding certain convictions for buggery etc: making an application on behalf of another person

(1) In section 92 of the Protection of Freedoms Act 2012 (power of Secretary of State to disregard convictions or cautions), after subsection (1) insert—

“(1A) A person may make an application under subsection (1) on behalf of another person if that other person is deceased.”

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(2) In section 93 of that Act (applications to the Secretary of State)—

(a) in subsection (2)(a), at the end insert “or if applying on behalf of a deceased person, the name and dates of birth and death of that person”;

(b) in subsection (2)(b), at the end insert “or if applying on behalf of a deceased person, the name and address of that person at the time of the conviction or caution”.”

Lord Sharkey: My Lords, next Wednesday night there will be a late second promenade concert at the Royal Albert Hall. There will be only one work in this prom: “A Man from the Future” by the Pet Shop Boys, who I am sure are familiar to all your Lordships. The piece is based on the life of Alan Turing and is an orchestral biography for electronics, orchestra, choir and narrator.

The piece as it will be performed is different from its final draft, because after the final draft was completed Alan Turing was granted a posthumous royal pardon. This pardon, for homosexual acts that would not now be illegal, left some with mixed feelings. Andrew Hodges, Turing’s biographer, on whose work much of the libretto is based, said about the pardon:

“I don’t think it’s right in principle to make an exception for one person on the grounds of what they did for the State. It should be for everyone who was in that situation”.

Neil Tennant and Chris Lowe—the Pet Shop Boys, as your Lordships will know—will explicitly address this contradiction in the finale of Wednesday’s performance. They say:

“We had to rewrite the ending to point out that the convictions of tens of thousands of other men remain and that hasn’t been discussed”.

They are right to raise this issue. Under the dreadful Labouchère amendment of 1885 and other equally dreadful laws, 75,000 men were convicted of homosexual acts. These laws were eventually repealed in the 1960s.

In 2012 this Government did something to put right this injustice. We passed the Protection of Freedoms Act, which allowed all those convicted under those old statutes to apply to have their convictions disregarded. This would happen if it could be demonstrated that the acts for which they were convicted would not now be illegal. Of the 75,000 men convicted under the now-repealed Acts, 16,000 were still alive and could now apply to have their convictions disregarded. This provides real help and comfort for them, their families, relatives, friends and loved ones, and helps to put right a serious and enduring historical injustice.

However, this still leaves the 59,000 men similarly convicted but now dead. In March 2012 I tried to do something about this. I tried to amend the Protection of Freedoms Act, via the LASPO Bill that was then before us. I wanted to extend the right to have a conviction disregarded to apply to those 59,000 men. I wanted friends, relatives or supporters to be able to apply for a disregard posthumously on their behalf. I said then that I believed that this simple extension was fair and right in principle. I wanted equality of treatment for all those convicted under the cruel Labouchère amendment and other laws, whether alive or dead. I believed then, as I still do, that this would go some way towards making amends to the many thousands of men who were cruelly and unjustly persecuted simply for being gay.

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The Government were not persuaded. The Minister said in reply:

“I do not believe that the provisions for disregarding convictions, which are concerned with the practical consequences of conviction, are an appropriate means of putting right the wrongs done to people who are no longer alive to suffer those consequences. As my noble friend himself points out, the numbers involved are potentially very large”.—[Official Report, 20/3/12; col. 876.]

This seems to be very mean-spirited and wholly legalistic. It entirely fails to take into account the feelings of friends, relatives and supporters of those convicted but now dead. It fails entirely to acknowledge a moral duty to help put right a serious injustice. It also devalues the disregard for those convicted and still alive. The purpose of the disregard is not just to help with the practical consequences; it is also to publicly acknowledge a very grave injustice.

The last sentence of the Minister’s response seemed to imply a worry about being overwhelmed by applications for a disregard. I thought that very unlikely. Now there is some concrete evidence to show exactly how unlikely it is. The Protection of Freedoms Act was commenced in October 2012. In a Written Answer of last Thursday, my noble friend Lord Taylor of Holbeach gave the latest figures for application for disregard. There are 16,000 men who may apply. Since the Act commenced, in total 147 have applied. Of these, 13 applied in the last three months. This is not an avalanche. The MoJ has confirmed to me that it is not able to put a cost on processing these applications because they have been dealt with within existing resources.

In conversations I had with the Minister and his officials in 2012, the MoJ raised another objection to the idea of a posthumous disregard. It was concerned that many of the posthumous cases might be so old that there would be no safe way of demonstrating that the conviction in question involved consensual and over-age sex. This did not seem to me at the time to be a valid argument and it still does not. The essence of the application process is that the applicant must supply evidence to convince the Secretary of State that the historical offence would not now be an offence at all. That applies to the living. It would also apply to applications on behalf of the dead.

Our amendment simply sets out to give equal treatment to all those gay men convicted under the cruel and homophobic Labouchère amendment and other Acts. It sets out to treat the dead and the living equally. It would bring closure to an extremely unhappy period in our criminal law. It would give comfort to the relatives, friends and supporters of those gay men convicted but now dead. It would help to put right a serious historical injustice.

I hope that this is an uncontroversial measure and that my noble friend will now take a sympathetic view. It would be very good to be able to attend Wednesday’s prom in the knowledge that we had been able to bring a satisfactory end to this long-running injustice.

Lord Lexden (Con): My Lords, I was very glad indeed to append my name to this important amendment. My noble friend Lord Sharkey has explained its aims and objectives in full and with his customary clarity.

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As he made clear, a number of sexual offences have been removed from the statute book in recent years, reflecting in many cases a strong belief that they should never have been crimes in the first place. As my noble friend explained, Parliament has now made it possible for those convicted of such offences who are still alive to apply to have their convictions disregarded. My noble friend’s amendment would enable such applications to be extended so that they could be put forward on behalf of those who are dead.

My noble friend has called for this extension before. Concern has been expressed that it might lead to a flood of applications. That seems extremely unlikely in view of what has happened now that living people have the right to have their convictions disregarded. No large number of applications has been lodged. There is therefore no reason to suppose that the right would be widely invoked by the families and friends of those who had their reputations blackened in their lifetimes but would not have been hauled before the courts at all if lawmakers in the past had not from time to time made unfortunate decisions. Parliament has recognised that that should be put right as regards the living. It should now extend that principle to cover all who suffered grave hardship, as the amendment provides. Justice demands it.

Our country’s lawmakers never blundered more seriously in the sphere of sexual offences than when they passed the Criminal Law Amendment Act 1885. As a historian of the late 19th century and co-author of a book on the very year in question, I never cease to deplore what happened in a thinly attended House of Commons in the small hours of 6 August 1885, with the Summer Recess looming. It was to prove to be a fateful date in the history of English criminal jurisprudence. Suddenly, without warning or anything resembling adequate discussion, homosexual men were made subject for the first time to harsh penalties for purely private sexual activity that was deemed to be grossly indecent.

It is well known that the legislation as introduced into Parliament had nothing whatever to do with homosexuality. Without most people noticing, an amendment was brought forward by a wayward radical Back-Bencher, Henry Labouchère, which made indecencies between adult males, in private as well as in public, a punishable offence. Labouchère proposed a maximum penalty of one year’s imprisonment. To his eternal shame, the incumbent Tory Attorney-General, in accepting the amendment, doubled the penalty to two years, with or without hard labour, at the judge’s discretion. Thus was created the infamous “blackmailer’s charter”, as it was immediately dubbed, and thus was created a road of great suffering and hardship—a road that was, in Oscar Wilde’s famous words,

“long, and red with monstrous martyrdoms”.

It is not least because so many lives of great men such as Alan Turing, and others unremembered for public achievement, were wrecked as a result of that legislation that we should consider this amendment with favour. It would register and symbolise Parliament’s recognition that a grave mistake was made on 6 August 1885, when a malign change was hurriedly agreed and then passed into law without further consideration in either House of Parliament on 1 January 1886.

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There are, of course, other reasons why the amendment should command support, but Parliament’s black day in August 1885 is for me one of the most compelling. I hope that the Government will accept the amendment.

Lord Faulkner of Worcester (Lab): My Lords, I, too, have added my name to the amendment of the noble Lord, Lord Sharkey, because I am very happy to be a co-sponsor of his Private Member’s Bill to secure the pardon for Alan Turing, which fortunately needed to make no further progress in Parliament because the Government granted that pardon. I do not want to say any more, other than that I agreed with every word that the noble Lord, Lord Sharkey, and, indeed, Lord Lexden, said. This is a case that deserves widespread support. I hope that colleagues on my own Front Bench will support it and that the Government will respond.

8 pm

Lord Black of Brentwood (Con): My Lords, I am pleased to support my noble friend Lord Sharkey’s amendment. He has done all those who are committed to real equality for gay men and women, living and dead, a great service. I hope he has also ensured that Wednesday’s prom will be a sell-out, as indeed it should be.

I make three points in favour of what seems to be a sensible, proportionate and long overdue measure. First is the straightforward question of logic. If it is right that those who are alive can have quashed, under the Protection of Freedoms Act, convictions for a range of what were once sexual offences between consenting adults of the same sex, why cannot those who died before the law caught up with changes in society? To make a distinction between the living and the dead in this way seems to me to be wholly irrational.

Second is the question of equity and fairness. It is absolutely right that a pardon was granted to Alan Turing, whose tragic case served to highlight the plight of those who had criminal records for acts that should never have been crimes. However, what of the families and decedents of ordinary people? As the noble Lord said, there were up to 60,000 of them over the many generations when a sexual act between men was an offence. Benjamin Cohen, the campaigning publisher of PinkNews, which does so much to stand up for the rights of the gay community, made the point well in a letter to me:

“Almost as soon as the Protection of Freedoms Bill was passed, PinkNews readers questioned why those who had passed away could never have their name cleared, and the royal pardon granted to Alan Turing also posed many questions. Why him and not others, and not just famous people like Oscar Wilde?”.

That question needs to be answered. The noble Lord’s amendment does just that.

Finally, there is one other important point. The amendment sends a signal to the wider international community. My noble friend Lord Lexden and I, along with others across the House, have on many occasions raised the shameful treatment of homosexual men and women in the Commonwealth, where our poisonous imperial legacy still means that people of the same sex who love each other face prison and, in some cases, the death penalty when they display that

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love. We have done much in recent years to show those countries that we are absolutely setting our own house in order. The Protection of Freedoms Act and the equal marriage Act were hugely important parts of that process. Now it seems to me we have another opportunity to show the states that maintain repressive regimes how we have disowned the barbaric part of our past, ensuring that those who suffered as a result of that path and their families will benefit from the equality that now exists, even in death. We can then urge that those states too should begin what will be a long and slow process of decriminalisation. The amendment, which I hope the Minister will support, would be a potent symbolic act in that quest.

I was recently rereading EM Forster’s great novel Maurice, which centres largely on the issues of historical importance raised by the amendment. Forster’s characters, one of whom was imprisoned for an act of so-called gross indecency, lived in the shadow of that terrible injustice. All those who were sentenced to imprisonment with hard labour around the time that novel was written would now be dead, taking their shame, guilt and, in so many cases, criminal record with them to the grave. Forster said on the front page of his masterpiece, “This book is dedicated to happier times”. For people such as him and those ordinary people he wrote about, happier times never arrived. However, they are here now and the amendment is our opportunity to do right by those who were not as lucky as us.

Lord Beecham (Lab): My Lords, I support the noble Lord’s amendment, but I have a slightly left-field suggestion to make. Part of the problem the Government appear to have is the process of dealing with applications—possible costs and all the rest of it. Would it not be possible, instead of requiring people to apply on behalf of the deceased, for the Government to legislate to disregard the convictions of anybody convicted for conduct which would not now be an offence? That would not involve individual applications, their processing and all the rest of it, but would be a blanket amnesty for anything which would not now be a criminal offence. I put forward that suggestion for consideration. I do not expect the Minister to leap at it with any more enthusiasm than he usually leaps at my suggestions. I see the noble Lord is nodding that he too may be interested in it. It is a suggestion he might care to look at. Perhaps we can consider it on Report.

Lord Faulks: My Lords, this has been a short, very well informed and powerful debate. I pay tribute to my noble friend Lord Sharkey and others for all they have done relating to Alan Turing and to the amendment to the Protection of Freedoms Act. That Act reflected the Government’s determination that people’s lives should not be unfairly blighted by historical convictions for consensual gay sex with people aged over 16. The House is grateful too to my noble friend Lord Lexden for his usual accurate and illuminating historical analysis of the origins of this sad state of affairs, which gave rise to so many convictions and caused so much unhappiness.

A disregard results in a person’s relevant convictions being removed from the records held by the police and the courts. Those convictions will therefore no longer

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appear on a criminal records check and the individual never has to declare them, in any circumstances. However—this is where the amendment is concerned—where someone has died, the intended effect of these provisions would apply. The provisions in the Protection of Freedoms Act are designed to help living individuals get on with their lives free of the stigma of the disregarded offence. I fully appreciate and sympathise with the intention behind the amendment, but the Government are concerned that there would not be a practical benefit to the change. A disregard would not allow the applicant, on behalf of a deceased person, to say that the deceased person was incorrectly convicted, nor that he or she has received a pardon. It is important to remember the rationale that lies behind this. The objective of the Protection of Freedoms Act, in disregarding certain offences, is that they should no longer affect a person’s life or career. The intention is to support living people who are disadvantaged when they apply for work, rather than to set the record straight.

The Government are still concerned that such an amendment would introduce a disproportionate burden on public resources; reference was made to a similar answer given from the Dispatch Box, not by me but by another Minister. For living people, the Protection of Freedoms Act will amend the data used for criminal records checks for living people. When someone is deceased, the offence is more likely to have taken place prior to the establishment of the National Policing Improvement Agency’s names database. Identifying appropriate records would be a lengthy, expensive and uncertain task. There is less certainty that any records can be identified, and those that are found may be insufficient to be sure that offences were consensual and with a person aged over 16.

The Government are concerned this would place a disproportionate burden on existing resources at the Home Office and on the police service. My noble friend Lord Sharkey referred to the answer he was given by a Home Office Minister to a question about the number of people who had made applications, following the estimate of 16,000. I am told that it is true it has now risen to 192 from 185. However, noble Lords will appreciate that departments are operating under severe financial restrictions. While we believe that the cost of dealing with applications from those whose lives continue to be affected is justified in the current climate, we cannot agree that costs, which we believe will be significantly higher for each application, could be justified in trying to deal with the records of those who have died. In our view, the limited resources should be directed at those who continue to have difficulties as a result of their conviction or caution for these offences. I need hardly stress that there is a difference between a pardon and a disregard.

The noble Lord, Lord Beecham, made an interesting, bold suggestion. He rightly predicted that I was unlikely to swallow the suggestion from the Dispatch Box, sincerely though it was made. My initial reaction is that, if there were to be a blanket amnesty, as I think he was proposing, we would need to go through this case by case to establish whether this act was consensual and therefore within the scope of the Act.

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Therefore, while having considerable sympathy with all that lies behind the amendment, the Government are still not in a position to accept it as tabled by my noble friend Lord Sharkey. However, I appreciate that there is a feeling that something ought to be done to right a historic injustice. I can certainly—without, I hope, raising any expectations—at least agree to facilitate a meeting with the Minister to discuss this matter further. However, I emphasise that I cannot raise expectations and the position at the moment is precisely as I have outlined it. In those circumstances, notwithstanding the arguments that have been put forward, I hope that my noble friend will be prepared to withdraw his amendment.

Lord Sharkey: My Lords, I am very grateful to all those who have spoken in favour of the amendment. They have, in my view, spoken persuasively and eloquently. I cannot help feeling that in many ways the Minister is simply missing the point. He talks in terms of practicality and cost; that is essentially the argument that he is putting forward. As I pointed out a few moments ago, there are elements to this other than practicality and cost. There is the notion of moral duty; there is the notion of taking into account the feelings of the friends and relatives of those convicted but now dead; and there is the notion of the devaluation of the disregard for those convicted but still alive if the purpose of this is purely practical and contains no element of public recognition for the wrongs done to these people.

I am sorry that the Minister and the ministry have chosen to take this path. It seems to be legalistic, mean-spirited and ungenerous. I am sufficiently encouraged by the words that I have heard around the Chamber this evening to say to the Minister that, although I will now withdraw the amendment, I will return to it on Report and perhaps use the opportunity to test the opinion of the House at that point.

I finish by saying that of course I would welcome a meeting with the Minister. In fact, I wrote to the ministry on 3 July proposing that. I got a letter back last Thursday saying, “We have passed your letter on to the Home Office because of course the Protection of Freedoms Act belongs to the Home Office”. There was no mention of a meeting or any kind of consequent follow-up; it was just a case of “It’s not our business”. I knew that the Protection of Freedoms Act belonged to the Home Office but I also knew that the Minister was going to be answering this debate, which is why I wrote to him. I expected him, or his department, to answer on behalf of the Government and not simply to say, “Well, over to them and let’s not talk about a meeting”. I am now very glad to hear that he is talking about a meeting. Having said that, I beg leave to withdraw the amendment.

Amendment 42 withdrawn.

Amendment 42A

Moved by Baroness Thornton

42A: After Clause 28, insert the following new Clause—

“Parliamentary procedure for designation

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(1) Where the Secretary of State proposes to make a designation under section (Licensing of foreign pornographic services)(11), he shall lay particulars of his proposal before both Houses of Parliament and shall not make the proposed designation until after the end of the period of 40 days beginning with the day on which the particulars of his proposal were so laid.

(2) If, within the period mentioned in subsection (1), either House resolves that the Secretary of State should not make the proposed designation, the Secretary of State shall not do so, but without prejudice to his power to lay before Parliament particulars of further proposals in accordance with that subsection.

(3) For the purposes of subsection (1)—

(a) where particulars of a proposal are laid before each House of Parliament on different days, the later day shall be taken to be the day on which the particulars were laid before both Houses; and

(b) in reckoning any period of 40 days, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.”

Baroness Thornton (Lab): My Lords, this group of amendments deals with the licensing of foreign pornographic services. As noble Lords can see, I am getting all the fun issues today. I will take noble Lords briefly through what each of the amendments seeks to do and will then talk a little about the background that led us to table them.

Amendment 42A would outline the parliamentary procedure by which the Secretary of State designates which body may be a licensing authority for foreign pornographic services for the purposes of Amendment 42B. Amendment 42B would require providers of foreign pornographic services to be licensed, a licence being granted only to providers with effective age verification mechanisms. Amendment 42C would define a foreign pornographic service for licensing purposes, and Amendment 42D would introduce a maximum sentence of six months’ imprisonment or a fine not exceeding £5,000 for a provider of foreign pornographic services which is convicted of failing to secure a licence. These amendments were tabled, but not chosen for discussion in the Commons, by my honourable friends Dan Jarvis, Andy Slaughter, Diana Johnson and Helen Goodman.

The background to the amendments is that in July 2013 the Prime Minister, David Cameron, asked internet service providers to offer family-friendly filters to all customers, ensuring that they had effectively to choose to turn the filters off. The four major ISPs rolled out these filters to new customers at the beginning of 2014 and will have offered the choice to install filters to all existing customers by the end of 2014. However, Ofcom has found that more than half of parents do not use the parental controls, nor are the controls a complete solution in themselves. Recent research by on demand regulator ATVOD shows that shocking numbers of those aged under 18 are still accessing adult material online, and I shall come back to that in a moment.

8.15 pm

I believe that the Government risk becoming complacent. We think that these amendments will serve to keep up the pressure and act as the next step in the ongoing battle to make children safer online. I regard them as complementary to, for example, the

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Private Member’s Bill introduced by the noble Baroness, Lady Howe, whom I admire enormously for her work and persistence in this area.

So what is the situation in the UK, the EU and the rest of the world? The UK Government have promised further legislation to remove any possible doubt about the current position and to enable ATVOD to act against UK providers which offer content that would be forbidden for sale on a DVD, even in a licensed sex shop.

EU-based providers are regulated under the same directive that we use in the UK, but some member states do not consider that hardcore porn “might seriously impair” those under the age of 18. They do not impose the same restrictions as we do in the UK. This means that online services based in, for example, the Netherlands can and do target the UK and provide unrestricted access to hardcore pornography. The directive is to be amended to require all member states to ensure that media services within their jurisdiction keep hardcore porn out of the reach of children and I believe it is important that the UK Government should support that call for change.

Non-EU-based providers are completely unregulated and are responsible for most of the online porn viewing for those in the UK. The leading pornographic businesses make their content available in two ways—by offering access to those who pay for a subscription and by providing free clips, including so-called tube sites such as PornHub, which act as a shop window to promote their core subscription-based services. The tube sites are the key means by which UK children are likely to access hardcore porn and often feature in the top 50 websites being accessed from the UK.

The Government have committed to legislate further for UK-based websites reinforcing the need for age verification mechanisms to be in place but have not yet committed to changing the law to tackle non-EU providers. Technically, foreign-owned websites could be prosecuted under the Obscene Publications Act 1959 if they provide unrestricted access to adult material. The Crown Prosecution Service issued guidelines on this issue in 2005. However, I understand that since 2005 no relevant prosecution has taken place under this law. Perhaps the Minister would like to confirm that this is indeed the case. The lack of clarity and case law means we need effective statutory legislation.

Recently, the Authority for Television On Demand—ATVOD—published the results of a pioneering study that examined whether and to what extent children and young people between the ages of six and 17 were able to access such sites despite what our law says. The research methodology employed was similar to that used to measure TV viewing figures. It looked only at access via PCs and laptops. In other words, it excluded smartphones and handheld devices. Had these been included there seems little doubt that the results would have been different and worse.

In a single month, December 2013, ATVOD identified 1,266 porn websites that were being visited by UK users. Only one of these was a service regulated within the UK. This is its shocking summary. It said the survey,

“provides the most authoritative picture yet established of the exposure of children and young people to ‘R18’ material. ‘R18’ is the classification of the strongest legal video pornography permitted

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in Britain and covers content which, on a DVD, can be found only in a licensed sex shop or cinema and is restricted to buyers 18 or over. It portrays a range of real, rather than simulated, sex acts”.

It also found:

“At least 44,000 primary school children accessed an adult website … one in 35 of six to 11 year-olds in the UK going online … 200,000 under-16’s accessed an adult website from a computer. This is one in 16 children in that age group who went online in the same month … One in five teenage boys under 18 going online were clicking on porn websites from PC’s, and one adult site—which offers free, unrestricted access to thousands of hardcore porn videos—attracted 112,000 of the teenagers … at least 473,000 children between the ages of six and 17 accessed an adult internet service, mostly offshore—one in ten of young people that age who went online”.

ATVOD’s very sensible suggestion was that the credit card companies and the banks that owned them should stop processing payments to the identified websites. I am told that the financial institutions expressed sympathy but said that they wanted fresh legislation to protect them from any claims. In other words, they refused to act.

Such pusillanimity is disappointing. I seriously doubt that the banks and credit card companies need any legislation to pull the plug on payments to sites that are demonstrably breaking UK law—quite the opposite. Could it not be argued that the banks and credit card companies are themselves committing an offence? By allowing these sites to use their payment system, are they not aiding and abetting the commission of a crime? Are they not helping to sustain the sites that are harming our children? Were these amendments to be passed, the banks and credit card companies would have no hiding place. If a site was not licensed the banks and credit card companies would not be able to provide them with financial services or support. That would definitely do the trick.

When the results of this research came out, the Government announced that a policy on internet filters would deal with the problem of keeping under-18s away. The filters will definitely help but the implication was that nothing else needed to be done. That is fundamentally wrong. The filters should act as a backstop, not as a first line of defence in this case. What should the new law say? The Crown Prosecution Service has been reluctant to authorise actions against hardcore porn websites under the Obscene Publications Act. It says that juries do not want to convict. That being so, the answer is obvious. Remove the need to bring obscenity charges and create a new regulatory offence. That is what a licensing regime would create. Pornography website owners would be required to show that they had a robust age verification mechanism in place to get a licence. Not having one would be a crime.

This is not so very different from what we already do with online gambling websites where age verification and licensing are the key and where the Government took a strong line to protect children and young people with a very high degree of success. I hope the Minister will recognise that these amendments seek to put a similar regime in place. I beg to move.

Baroness Howe of Idlicote (CB): My Lords, I was pleased to add my name to Amendments 42A to 42D tabled by the noble Baroness, Lady Thornton, and the

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noble Lord, Lord Beecham. I am grateful to the noble Baroness for her comments earlier. As noble Lords will know, I have been concerned about content on the internet for some time and have tabled amendments to previous Bills on age verification for certain websites. I also have the Online Safety Bill which is currently before your Lordships’ House. I extended my Bill in this Session specifically to deal with some of the concerns which have been raised by the noble Baroness, Lady Thornton, so I am grateful to be able to discuss these important issues today.

As a result of the Audiovisual Media Services Directive 2009, the Authority for Television on Demand has regulatory powers over “TV-like” on-demand programmes that include those which provide explicit pornographic content. ATVOD is already taking welcome action to address services that are based within the EU and has set out in its annual report, which was published last week, how in the year to 31 March 2014 it took action against 16 services operating across 20 websites because these services featured hardcore pornography that could be accessed by under 18 year-olds.

However, there are two current concerns. ATVOD already assumes that these regulations apply to R18 video works—that is, hardcore pornography that can be legally supplied only by a licensed sex shop in offline form—but has argued that it is not clear and that it could be subject to legal challenge. In 2013, the Government said that they would legislate to ensure that material that would be rated R18 by the BBFC is “put behind access controls” and would,

“ban outright content on regulated services that is illegal even in licensed sex shops”.

I understand that in April the Government announced that they would implement this policy before the end of the year. This is welcome news in relation to EU services, and I would be grateful if the Minister could give us an update on progress on implementing this commitment.

The second issue, which is the one that these amendments aim to address, is that ATVOD is concerned that young people are accessing hardcore pornography rated R18 and stronger through tube sites that tend to operate outside the EU and which will not be affected by the change I have outlined above as they fall outside ATVOD’s jurisdiction. As noble Lords have heard, in March 2014, ATVOD issued a report entitled For Adults Only? Underage access to online porn. The report contains shocking statistics on access to pornographic websites that are outside its control because they are based overseas.

Noble Lords have been given quite a few of the relevant statistics by the noble Baroness, Lady Thornton, that I was going to read out, such as the fact that one in 20 UK visitors to an adult website during a period of one month, December 2013, were under age, and that 23 of the top 25 adult websites visited by UK internet users provide instant, free and unrestricted access to hardcore pornographic videos and still images. Moreover, none of the eight most visited adult sites has in place a robust mechanism to prevent underage access and all offer on the home page free access to hardcore porn videos which are equivalent to those passed as R18 by the BBFC, or indeed are even

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stronger. I must repeat one statistic because it really is so horrendous. Only one of the 1,266 adult websites identified in the ATVOD research as having been visited from the UK in December 2013 was a service that is regulated in this country.

I am sure that noble Lords will agree with me and with the noble Baroness, Lady Thornton, who has put the case so clearly and splendidly, that this is really unacceptable and that the time has come to address these issues. As a result of its research, ATVOD has made a series of recommendations, one of which is to establish a licensing scheme for foreign pornography websites based outside the EU which are being accessed in the UK. A condition of the licence should be that hardcore pornography can be provided only,

“in a manner which secured that under 18s could not normally access the material”.

Amendments 42A to 42D would set up such a licensing system. I hope that the Committee will support these amendments and that the Minister will confirm that that will be the case. I should also like to hear his views on ATVOD’s proposal that the blocking of payments to services could be implemented if a service is unlicensed or a licensed service breaches the licence conditions.

8.30 pm

Lord Faulks: My Lords, these amendments seek to establish a licensing regime for non-EU providers of pornographic content. I am grateful to the noble Baroness, Lady Thornton, for her explanation and for meeting me last week to discuss in general terms the proposals contained in the amendments. I am also grateful to the noble Baroness, Lady Howe, for her support for these amendments and for her continued interest in this particular unfortunate aspect and her determination in trying to achieve through legislation better control of access to pornography.

The Government agree that the aim of protecting children from accessing inappropriate content is one that should be pursued, but for the reasons that I shall explain, we are unable to accept these amendments. As the noble Baroness explained, the intention behind this amendment is to build upon the current regulatory system in place, deriving from the Audiovisual Media Services Directive, which applies to services situated in the UK and the EU. So far the Government have taken the consistent approach to regulate only UK-based TV-like video on demand content that might seriously impair the development of children, since this can be actively enforced. This is in line with the Audiovisual Media Services Directive. However, we intend to introduce secondary legislation to make clear that material that has been or would be classified R18 by the British Board of Film Classification must only be provided behind effective access controls.

The Government’s approach for protecting children from other content of this nature that originates from beyond the EU focuses on giving parents the tools they want to limit access to certain types of content, via parental controls and filters. These technological solutions have the advantage of dealing with all types of content, regardless of whether the provider is situated in the EU. Consequently, children in homes with the filters enabled will not be able to access pornographic material on the internet.

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With regard to the degree to which filters are established, all new TalkTalk, Sky, BT and Virgin customers are now being given an unavoidable choice about installing family-friendly filters. Hundreds of thousands of homes have already taken up the option of a whole-home family-friendly internet filter. TalkTalk has already started to contact existing customers and give them an unavoidable choice about installing filters when they log into their password-protected “my account” space. It has contacted more than 1.5 million already. BT, Sky and Virgin are developing their own individual solutions to enable them to prompt existing customers. By the end of 2014, they will have given the 19 million households that they supply with an internet connection an unavoidable choice about installing filters. Rollout will be done in phases to avoid overloading the systems.

Like current device-level filters and filters used by every school in the country, filter software is provided to the ISPs by well established web-filtering companies. These are very dynamic and use a combination of web trawling and human intelligence to ensure that acceptable sites are not filtered in error. Solutions also allow parents to apply different levels of filtering depending on the age of the family. As to the remaining internet service providers beyond the big four, the Internet Service Providers’ Association, which represents the smaller ISPs, has confirmed that overall these smaller ISPs are open to considering the options available to them for delivering additional controls. We welcome their commitment to keep the Government updated on progress and to share best practice between the smaller ISPs.