20 Oct 2014 : Column 507

“conviction” includes—

(a) in relation to an offence under section 42 of the Armed Forces Act 2006, anything which by virtue of section 376(1) and (2) of that Act is to be treated as a conviction and

(b) in relation to an offence under section 42 of the Naval Discipline Act 1957 and a member State service offence, a finding of guilt in respect of the person;

“member State service offence” means an offence which was the subject of proceedings under the law of a member State, other than the United Kingdom, governing all or any of the naval, military or air forces of that State.

(3) For the purposes of subsection (1)(c) and (d), where the offence was committed by aiding, abetting, counselling or procuring, it must be assumed that the act aided, abetted, counselled or procured was done in England and Wales.”

Amendments 69 to 71A agreed.

Amendment 72 not moved.

Amendments 73 and 74 agreed.

Amendments 75 and 76 not moved.

Amendment 77 agreed.

Amendments 78 to 80 not moved.

Amendments 81 to 83 agreed.

Amendment 84 not moved.

20 Oct 2014 : Column 508

Amendments 85 and 86 agreed.

Amendments 87 and 88 not moved.

Amendment 89 agreed.

Amendments 90 to 92 not moved.

20 Oct 2014 : Column 509

Act 1955, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957, whenever committed, in respect of which the corresponding civil offence (within the meaning of the Act in question) is a relevant offence, and

(e) a conviction for a member State service offence, whenever committed, which would have constituted a relevant offence if committed in England and Wales at the time of conviction.

(2) In this section—

“civilian offence” means an offence other than—

(a) an offence under an enactment mentioned in subsection (1)(c) or (d), or

(b) a member State service offence;

“conviction” includes—

(a) in relation to an offence under section 42 of the Armed Forces Act 2006, anything which by virtue of section 376(1) and (2) of that Act is to be treated as a conviction, and

(b) in relation to an offence under section 42 of the Naval Discipline Act 1957 and a member State service offence, a finding of guilt in respect of the person;

“member State service offence” means an offence which was the subject of proceedings under the law of a member State, other than the United Kingdom, governing all or any of the naval, military or air forces of that State.

(3) For the purposes of subsection (1)(c) and (d), where the offence was committed by aiding, abetting, counselling or procuring, it must be assumed that the act aided, abetted, counselled or procured was done in England and Wales.””

Amendments 93 to 96 agreed.

Lord Foulkes of Cumnock (Lab): My Lords, I am happy to move my amendment when the House and the Government are in such a contented mood. I thank all those who have stayed.

This is, I believe, the third time I have proposed this amendment, or at least some version of it, to the House. As the Minister knows, last year my Labour colleagues and I moved an amendment to the Anti-social

20 Oct 2014 : Column 510

Behaviour, Crime and Policing Bill which would have created a separate legal offence for assaulting any worker in the performance of his duties. Sadly, although many, including a number of those on the Benches opposite, were sympathetic to the amendment’s aim of encouraging prosecutions, acting as a deterrent and doing justice to the physical and emotional suffering of the thousands of workers assaulted each year, your Lordships did not give that amendment your approval.

One concern raised at the time was that the amendment was so wide in scope that it would cover so many workers as to render it ineffective. That is why I proposed at the Committee stage of this Bill in July the amendment before your Lordships, drafted with the invaluable help of the union USDAW. I thank all at USDAW for their great help on this issue. The amendment focuses specifically on those workers who are required to enforce, as part of their employment, compliance with the Licensing Act 2003. It creates a separate either way offence for assaulting a shop or bar worker who is selling alcohol, and in doing so, takes account of comments made by the Solicitor-General in the other place which claimed that, if we were truly serious about higher penalties, such an offence should be either way and not summary as was originally intended.

There are three problems in the way in which we currently deal with assaults on workers serving alcohol which this amendment attempts to address. First, it attempts to remedy the fact that at present the vital and dangerous public function performed by workers who serve alcohol is insufficiently acknowledged by the criminal justice system. Men and women who serve alcohol are required by the Licensing Act 2003 to enforce that law, in terms of its consumption and supply. They must refuse to serve those who they believe to be under age, and those who are already intoxicated. They are working in febrile environments and are responsible, like police officers, for enforcing the law. If they refuse to do so, they themselves can face legal action or lose their licences. It is therefore unacceptable that these men and women receive no effective protection from the legal system for that additional service and the physical danger that it puts them in.

That brings me to my second point. Men and women serving alcohol have, like all workers, the benefit of a clause in the sentencing guidelines—as the Minister pointed out in Committee—which makes the assault of a worker providing a public service one aggravating factor, but it is one of 19 aggravating factors, which is seldom acknowledged. This fails to acknowledge that those who serve alcohol place themselves in greater danger, and make a more vital contribution to public order and to public health, than most others in other professions. According to the Health and Safety Executive, alcohol was the trigger to threatened or actual violence in 38% of cases.

Thirdly, the current regime has inadvertently produced a system which disincentivises prosecution and ends up being too lenient. At the moment, if a worker who sells alcohol is assaulted, the crime will usually fall into the category of common assault. The problem is that common assault carries relatively lenient punishments,

20 Oct 2014 : Column 511

meaning that in many cases the Crown Prosecution Service decides not to bother prosecuting. That has certainly been the experience of the unions like USDAW and other organisations in the industry like National Pubwatch, the Wine and Spirit Trade Association and others. Lenient sentencing and lack of sentencing not only fails the victims of such crimes by depriving them of justice but also results in many incidents going unreported as people’s faith in the criminal justice system becomes less and less secure. USDAW found that 17% of workers attacked at work, or threatened with physical violence, did not report—they did not bother to report—the offence because they did not think that any action would be taken.

My amendment addresses these issues. It provides greater protection to this group of workers by doing three things. First, and most importantly, it recognises at long last the dangerous environment these men and women must work in, as well as the strenuous and vital public function they carry out in enforcing the law. It does so by creating a separate, specific 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, or up to two years in prison or an unlimited fine for those who are convicted or indicted at the Crown Court, for more serious offences.

Secondly, in creating that separate offence, it would act as a deterrent to such crimes. Between 2012 and 2013, reported incidences of violence at work increased—there were 649,000 overall, including assaults on bar and shop workers serving alcohol. At a time when we see that these crimes show no sign of abating and their frequency remains alarmingly high, we must recognise the service of this group of workers. Harsher penalties will act as a deterrent.

This brings me to the third major reason to support this amendment. It will encourage more prosecutions, as a separate legal offence is easier to determine than common assault. You can prove it more easily, and because it carries stiffer penalties, that will give the CPS greater incentive to prosecute.

I heard example after example recently at a presentation by USDAW. I know that Members of the House will know of other examples. I will not go into them in detail as time does not permit, but I assure the House that there were some horrific incidents causing great harm, which I know the noble Lords, Lord Lea and Lord Kennedy, and others who attended the presentation, will testify to. I am arguing in favour of the amendment before your Lordships today so that many thousands of other workers do not have to go through what those about whom we heard in that presentation have already suffered.

In Committee, the noble Lord, Lord Faulks—have I got the pronunciation right? I have the same problem in reverse—expressed his genuine sympathy with the amendment’s aims before arguing that it was not “at the moment” the right way to combat such crimes, citing a lack of evidence and the availability of other actions to deal with it. He also agreed to meet me and other colleagues, and he was true to his word. The general secretary of USDAW, my noble friend Lord

20 Oct 2014 : Column 512

Kennedy and I met him and we had a sympathetic response. He asked for more evidence and was interested in trying to deal with the issue, but, unfortunately, he was not willing to support this amendment, at least at this stage, until we had come forward with more evidence to persuade him.

I hope, nevertheless, that the Minister will today recognise the seriousness of this matter. If he does not accept the amendment—I hope that he will and I shall certainly test the opinion of the House if he does not—I hope that he will at least put forward some alternatives to take account of an increasingly serious problem. We should not let down these people who serve the public and make sure that the law is upheld. They deserve the kind of support that we can give them by supporting this amendment.

Lord Lea of Crondall (Lab): My Lords, perhaps I may add one point which the union raised and which I think is the reason why the Government are having undue difficulty. It is an inconsistency which relates to semantics. These people are serving the public—they are in public houses after all. If you are a public servant, you seem to be protected in a way that these workers are not, yet they are in more direct, physical contact with the public—with many injuries sustained. I ask the Minister—I know that the matter has been brought to his attention in private conversations—how it is that these workers have less protection under a lesser criminal offence than applies to violence done to workers in the public sector who have an interface with the public. These workers are effectively in a private space, not in a public space, and the law works differently for them.

Lord Balfe (Con): My Lords, I support the principles of the amendment, which shows how belonging to a responsible union such as USDAW can benefit workers. As I have said in this House on previous occasions, it would be wrong for the Opposition to believe that all union members are adherents of their party. Indeed, one of the USDAW executive, Mr John Barstow, a member of the Conservative Party, keeps me informed of USDAW and its doings, which are generally very beneficial and certainly of value to its members.

In a debate earlier this evening—I do not normally intervene in this sort of debate; I generally stick to foreign affairs—I noticed all the statements made about knife crime and it being argued that just being found with a knife should be a reason for a custodial sentence. I was at the meeting with the noble Lord, Lord Foulkes, the other day when we listened to USDAW. We heard some pretty horrific accounts. One of the most horrific things to me was the absence of prosecution by the police even in the face of CCTV evidence and other quite clear evidence that assaults had been committed. I hope that the Minister will be able to tell us not only his views on the clause but also how we intend to get the law, as at present, implemented because what was done is already an offence—and was an offence in many of the incidents put before us. We do not need this new law. What we are facing is a crisis of the police deciding that the law should not be enforced as it stands.

20 Oct 2014 : Column 513

Having said that, I see no reason why we should not afford these workers the level of protection that they justly deserve. After all, as Mr Foulkes—sorry, I have known the noble Lord as Mr Foulkes and George for a bit too long, I reckon—as the noble Lord, Lord Foulkes, said, these workers are actually upholding the law that we have passed. In many ways they are as much agents of the law as the police. When they are assaulted as a result of upholding the laws that this Parliament has passed, they should benefit from the protection that the law should afford. On that basis, I hope that the Minister will be able to give us a very positive response.

Lord Kennedy of Southwark: I am delighted to be able to support the amendment of my noble friend Lord Foulkes of Cumnock; it seeks to protect shop workers from assault when they are doing their job and refusing to sell alcohol after the permitted time as required by law. The amendment has the support of the shop workers’ union, USDAW, which is a campaigning union standing up for its members. It also has a reputation as a hard-working professional organisation that works with employers and wants the businesses that its members are employed in to be a success. It is respected in the industry as a whole and the amendment is typical of the way USDAW works. The amendment has the support of not only the union but the organisations that represent the businesses in the sector and the staff who can find themselves at serious risk of assault for just doing their job, as many noble Lords have already said.

In Committee, I told the House that USDAW has run its Freedom from Fear campaign for many years. That campaign seeks to highlight the unacceptable situation that shop workers can find themselves in just for doing their job. Shop workers are among some of the lowest paid workers. They deserve the right to go to work without the risk of being verbally abused or even physically assaulted. People come into shops that sell alcohol, often late at night, usually the worse for wear having drunk far too much, and when they are told that they cannot buy any more alcohol as it is past the licensing hours, the poor shop workers can be subject to abuse and, in many cases, actual physical assault. We should also remember that these offences occur late at night, often when there are only one or two members of staff on duty in the shops concerned.

As my noble friend Lord Foulkes said, we recently met with the Minister and Mr John Hannett, the general secretary of USDAW. The Minister was very courteous and was concerned about what we heard from our friend John Hannett. Clearly the Government have not been prepared to move so far and that is somewhat regrettable. I hope that today when the Minister responds he can signal how unacceptable the situation is and that the Government take this matter really seriously and quite rightly expect people to be able to go to work and earn their living free from the fear of attack.

Lord Faulks: My Lords, this amendment in the name of the noble Lord, Lord Foulkes of Cumnock, would make it an offence to assault a worker who is required to enforce or comply with the Licensing

20 Oct 2014 : Column 514

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 issue has been well described by the noble Lord, Lord Foulkes, and by other noble Lords during the debate: those who are in the position of selling alcohol can find themselves in a highly vulnerable position and can be the victims of serious assaults. The amendment was debated in some detail in Committee. As he told the House, the noble Lord, Lord Foulkes, and the noble Lord, Lord Kennedy, met with me—Lord Faulks—to discuss the issue further. We were joined by the general secretary of the Union of Shop, Distributive and Allied Workers, and I benefited greatly from their analysis of the problem and the need, as they saw it, for action. As the noble Lord, Lord Foulkes, said, I made it clear that the Government remain at the moment unconvinced of the need for a new offence of assaulting workers selling alcohol, although I said that I would consider any additional evidence and data on that point. I remain in that position and the Government remain aware that there is concern about this, but I must make it clear now, as I made it clear then, that I do not wish to accept this amendment or to return to the matter in the course of the Bill’s progression.

9 pm

The House will join me in condemning these assaults, but in our view there are sufficient offences on the statute book which make it clear that such behaviour is unacceptable, and sufficient penalties to sanction it. As I made clear in Committee, the only offences of assault on members of specific groups are those of assault on a police constable in the execution of his or her duty, and of assault on an immigration officer. One could single out all sorts of other public servants who are potentially vulnerable and do not have a specific offence to protect them, such as those working in A&E on a Saturday night. 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, but I see no justification either for singling out workers selling alcohol as the only other occupational group meriting a specific assault offence or for making such an offence either way, with a maximum penalty of two years, as opposed to the six-month maximum penalty for common assaults generally and for the specific assault offences that I have referred to.

Those calling for a new offence of assault on workers selling alcohol argue that the police and CPS decide not to prosecute in many such cases, and that, when offenders are convicted, sentencing is too lenient. However, as the House will be well aware, investigation and prosecution of offences is a matter for the police and the Crown Prosecution Service, which are, of course, independent. Whatever offences might have been committed, it is for them to decide whether and how to investigate an incident or prosecute a crime. However, the code on the basis of which Crown prosecutors make those decisions indicates that a prosecution is more likely to be in the public interest,

20 Oct 2014 : Column 515

“if the offence has been committed against a victim who was at the time a person serving the public”.

That falls four-square within the concerns expressed, which includes a worker enforcing the Licensing Act.

We are also in this country rightly proud of the independence of our judiciary. In sentencing, judges generally must follow sentencing guidelines, which the House will recall specify that when an assault is committed against someone providing a service to the public, which includes someone selling alcohol, this is an aggravating factor and so should result in a higher sentence within the current maximum. With regard to sentencing, I should like to clarify a point I made during the Committee debate regarding the law officers’ power to refer apparently unduly lenient sentences to the Court of Appeal. I should have added that this scheme applies to indictable-only offences and a limited number of triable either way offences, specified in the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006, as amended. For instance, a sentence for grievous bodily harm could be referred, but not one for common assault.

In conclusion, while I strongly condemn assaults on anyone who comes into contact with the public as part of their work, as I am sure all noble Lords do, and am sympathetic to some of the positions that those who sell alcohol to the public find themselves in late at night, when they may be on their own and therefore vulnerable, I have to repeat what I said in Committee. Creating a new either way offence is not the right way to combat violent behaviour against those enforcing or complying with the Licensing Act 2003. The noble Lord, Lord Foulkes, has served the cause of those who find themselves in this position, of USDAW, which represents its members effectively, and of all of us in bringing this issue to the attention of a wider public. The House is grateful to him. However, notwithstanding the intention that he evinced earlier in this debate to test the opinion of the House, I hope that he will be persuaded to accept that he has already achieved a great deal. He has brought this amendment to the House’s attention—indeed, to the attention of the Ministry of Justice. He has served the cause of those who find themselves in a vulnerable position and of the union that supports their interests. I hope that he will be persuaded to withdraw his amendment.

Lord Foulkes of Cumnock: My Lords, in no way do I want to impugn the integrity, the sincerity or any other attribute of the Minister, because he has been very helpful. However, I think that he does not fully realise the extent of the problem. If he came into city centres—I do not know if he does—late at night or early in the morning on Friday, Saturday or Sunday, he would realise some of the problems that our people face who have to serve alcohol, who get threatened, who get frightened and who get assaulted. As my noble friend Lord Robertson was reminding me, binge drinking is becoming an increasing problem.

The Minister asks, “Why pick out only one category?”. It is because those in that category face such dangers, and are upholding the law that we pass. I am sorry, I should have said that the noble Lord, Lord Balfe, was at our meeting. As he said, and as my noble friend

20 Oct 2014 : Column 516

Lord Lea said, people who serve alcohol effectively act as policemen, upholding the law on our behalf—upholding the law that we pass. We should give them some recognition for that. USDAW and I have had e-mails and letters from Conservative and Liberal Democrat Members, one or two of whom I see today, from Cross-Benchers and from independent Members as well—I think that I have got it right on this occasion—

Lord Stoddart of Swindon (Ind Lab): Independent Labour.

Lord Foulkes of Cumnock:Independent Labour. On the basis that they express some genuine concern, I should like to test the view of the House.

9.07 pm

Division on Amendment 97

Contents 80; Not-Contents 106.

Amendment 97 disagreed.

Division No.  3

CONTENTS

Adams of Craigielea, B.

Bach, L.

Balfe, L.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley, L.

Bradley, L.

Brookman, L.

Browne of Belmont, L.

Chandos, V.

Collins of Highbury, L.

Corston, B.

Desai, L.

Donoughue, L.

Elder, L.

Elystan-Morgan, L.

Farrington of Ribbleton, B.

Foulkes of Cumnock, L.

Gould of Potternewton, B.

Grantchester, L.

Griffiths of Burry Port, L.

Hanworth, V.

Harris of Haringey, L.

Haskel, L.

Haworth, L.

Healy of Primrose Hill, B.

Hollins, B.

Hollis of Heigham, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Hoyle, L.

Hylton, L.

Jones, L.

Jones of Whitchurch, B.

Jordan, L.

Judd, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Knight of Weymouth, L.

Layard, L.

Lea of Crondall, L.

Liddell of Coatdyke, B.

McAvoy, L.

McDonagh, B.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

Mackenzie of Framwellgate, L.

McKenzie of Luton, L.

Masham of Ilton, B.

Massey of Darwen, B.

Maxton, L.

Morgan of Ely, B.

Morris of Handsworth, L.

Morris of Yardley, B.

O'Neill of Clackmannan, L.

Palmer, L.

Patel of Bradford, L.

Pendry, L.

Pitkeathley, B.

Prosser, B.

Ramsay of Cartvale, B.

Rebuck, B.

Reid of Cardowan, L.

Robertson of Port Ellen, L.

Rosser, L.

Royall of Blaisdon, B.

Simon, V.

Smith of Basildon, B.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Taylor of Bolton, B.

Thornton, B.

Tunnicliffe, L. [Teller]

Watson of Invergowrie, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Young of Norwood Green, L.

NOT CONTENTS

Ahmad of Wimbledon, L.

Alderdice, L.

Allan of Hallam, L.

Anelay of St Johns, B.

Armstrong of Ilminster, L.

Ashton of Hyde, L.

20 Oct 2014 : Column 517

Astor of Hever, L.

Attlee, E.

Baker of Dorking, L.

Barker, B.

Bates, L.

Berridge, B.

Blencathra, L.

Borwick, L.

Bourne of Aberystwyth, L.

Brinton, B.

Browning, B.

Burnett, L.

Caithness, E.

Carrington of Fulham, L.

Cope of Berkeley, L.

Cormack, L.

Cotter, L.

Craigavon, V.

De Mauley, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Faulks, L.

Fink, L.

Finkelstein, L.

Fookes, B.

Garden of Frognal, B.

Gardiner of Kimble, L. [Teller]

Glendonbrook, L.

Goodlad, L.

Greenway, L.

Grender, B.

Griffiths of Fforestfach, L.

Hamwee, B.

Hodgson of Abinger, B.

Hooper, B.

Howe, E.

Howe of Aberavon, L.

Hussain, L.

Jolly, B.

Kirkham, L.

Kramer, B.

Lamont of Lerwick, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Lexden, L.

Lyell, L.

Mackay of Clashfern, L.

Maclennan of Rogart, L.

Maddock, B.

Mancroft, L.

Manzoor, B.

Marks of Henley-on-Thames, L.

Marlesford, L.

Miller of Chilthorne Domer, B.

Naseby, L.

Neville-Rolfe, B.

Newby, L. [Teller]

Northover, B.

Norton of Louth, L.

O'Cathain, B.

Paddick, L.

Palmer of Childs Hill, L.

Perry of Southwark, B.

Popat, L.

Purvis of Tweed, L.

Randerson, B.

Ridley, V.

Ryder of Wensum, L.

Seccombe, B.

Selkirk of Douglas, L.

Selsdon, L.

Sharkey, L.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shipley, L.

Smith of Clifton, L.

Spicer, L.

Steel of Aikwood, L.

Stephen, L.

Sterling of Plaistow, L.

Stoneham of Droxford, L.

Stowell of Beeston, B.

Strathclyde, L.

Taylor of Goss Moor, L.

Tebbit, L.

Trefgarne, L.

Trenchard, V.

Tugendhat, L.

Verma, B.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Wasserman, L.

Wei, L.

Wheatcroft, B.

Williams of Trafford, B.

9.18 pm

20 Oct 2014 : Column 518

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

(4) An offence under this section is punishable by—

(a) on conviction on indictment, imprisonment for a term not exceeding 2 years or a fine (or both);

(b) on summary conviction, imprisonment for a term not exceeding 6 months or a fine (or both).

Lord Marks of Henley-on-Thames: My Lords, Amendment 98 stands in my name and in the names of my noble friends Lady Grender, Lady Brinton and Lady Barker. I shall address the entire group of amendments, in particular the amendments tabled by my noble friend Lord Faulks.

Your Lordships may remember that in Committee I and colleagues on these Benches moved an amendment to criminalise the practice of posting so-called “revenge porn” on the internet. This thoroughly nasty behaviour, where the perpetrators post sexual images of former lovers after the breakdown of their relationships in order to hurt their victims, has become all too common. There are a number of sites with names like “MyEx.com” where such images abound.

Unsurprisingly, the publication of such images causes untold distress, embarrassment and humiliation. Such publication has the potential to create havoc with victims’ mental and physical health, their happiness and self-esteem, their future trust in others, their ability to form relationships and their present and future relationships—social, within their families and at work. Publication by a former lover in these circumstances is a gross breach of trust. The images are taken in the privacy and trust of an intimate relationship, with the consent of the victim. They are then deliberately and callously displayed to the world without their consent, in a malicious attempt to cause distress.

The Government’s response to our amendment in Committee was to promise to consider the issues that we raised. I have been delighted by the way that such consideration has led to the tabling of the Government’s amendments in this group. They start with Amendment 103, which would establish the offence of, “Disclosing private sexual photographs and films”, widely defined, “with intent to cause distress”. I am aware that at the early stages of the Government’s consideration there was a view within the Ministry of Justice that no new offence was needed, on the basis that existing offences largely covered the evil with which we were concerned. However, further consideration has led the department to the conclusion that a new offence is indeed needed. That recognition is right and I commend and thank my noble friend, and all those who have worked with him on this within his department, for the extremely hard work that they have undertaken in the short time since Committee to develop these proposals.

The three essential elements of the new offence will be, first, that the image must be,

“a private sexual photograph or film”,

widely defined; secondly, that it must be published “without the consent of” the victim and, thirdly, that “the intention of” the publisher must be to cause the victim “distress”. Those elements largely mirror those of the offence mentioned in our amendment and we

20 Oct 2014 : Column 519

are content that the government amendments represent an effective way of dealing with this despicable behaviour.

We have had one concern as to the definition of sexual, which our amendment left undefined. The Government have sought to define it in Amendment 105. Subsection (3)(a) of their proposed new clause is clear, referring precisely to,

“an individual’s exposed genitals or pubic area”.

Paragraphs (b) and (c) of that subsection go wider. They refer to an image being sexual if, in paragraph (b),

“it shows something that a reasonable person would consider to be sexual because of its nature”,

and, in paragraph (c), if,

“its content, taken as a whole, is such that a reasonable person would consider it to be sexual”.

My noble friend and officials within his department helpfully held a meeting with us, at which they explained the difficulties that they faced in defining a sexual image. Colleagues were concerned that a topless photograph should be capable of being within the definition of “sexual”, in appropriate circumstances, and particularly where photographs of younger women were concerned. On consideration, we have come to the conclusion that paragraphs (b) and (c) enable the contents of such an image to be considered widely and that a successful balance is struck by the proposed wording. However, I should be grateful if my noble friend would confirm that he considers that paragraphs (b) and (c) considerably widen the ambit of paragraph (a).

I conclude by paying tribute to all those colleagues who have campaigned for the criminalisation of revenge porn. I particularly mention in this context my honourable friend Julian Huppert MP, who raised this issue in the other place and has worked hard on it. In view of the commendable position taken by the Government, we will not be pressing Amendment 98.

Baroness Brinton (LD): My Lords, I, too, have my name to Amendment 98 and wish to echo the points made by my noble friend Lord Marks on government Amendments 103, 104 and 105. I also support his comments about the definitions of private and sexual, and look forward to hearing the Minister’s response.

In recent years, a new series of unpleasant crimes relating to technology have developed. Cyberstalking, cyberbullying, sexting and now revenge porn are all about abuse of power and spreading information widely on the net. I shall focus on the devastating effects of the circulation of these images, and why the three criteria outlined in the government amendments are inextricably linked and why the presence of all three demonstrates the state of mind of the perpetrator. The proposed offence is vile. It is not just blackmail, although it has been used by some for that effect. It is not just the betrayal of trust and confidence of a former partner, but about the long-term damage on the partner who has been exposed. It is an abuse of power designed to cause distress, and with the nature of social media today, the perpetrator can hand it on and on to others, including professional revenge porn sites whose participants often then choose to troll the original victim, their family and their work colleagues.

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Many victims of revenge porn are too scared and humiliated to speak out but a few brave individuals do. Hannah Thompson has and is now a leading campaigner for the new law. Here is what she had to say about why she thinks the law needs to change:

“For those who don’t know, revenge porn is non-consensual pornography. It’s where a person uploads an explicit image of somebody without their permission. Often the victim’s name and contact details are attached. Not only is it humiliating but it has the potential to reach out of the screen and destroy people’s lives … Of course, there is nothing inherently wrong with sharing private images of yourself but you do so with a reasonable expectation of privacy. There is, however, something intrinsically wrong with using explicit images as a tool to harass and humiliate someone. As a victim of revenge porn, I can’t even begin to explain how relieved it makes me to think that Parliament is seriously considering these proposals. Most victims of revenge porn are shamed and forced into silence for fear that more people will find their images. They’re made to tolerate the abuse and forced to suffer through tedious copyright claims because it’s the closest they can get to having something done. I’ve spoken to victims who were suicidal, whose images were taken on a Polaroid camera before they had any concept of the Internet, who have lost their careers and whose relationships have been ruined. All the while, those who have published the images are free to sit back and revel in the pain they’ve caused to someone whose only crime was to trust them”.

Celebrities have been caught too. Photos of Jennifer Lawrence were found by a hacker, and Rihanna and Tulisa Contostavlos have had private nude photos released by former partners. But we do not know the size of the problem because only eight out of 43 police forces collect data. The Huffington Post said:

“The data that was available suggests revenge porn is on the rise: there were 35 reported incidents in 2012, jumping to 58 in 2013, and there have been 53 in the first half of this year alone”.

Tonight, Hannah and the other victims are in the public gallery watching our proceedings. Their bravery in fighting for revenge porn to be made a criminal offence would also mean that our police forces will start to catalogue this offence more carefully. Most of all, it will send a message to former partners who commit this appalling act that the effect it has on the victims is not one that our wider society is prepared to accept.

9.30 pm

Too often, technology gallops ahead of the law. Revenge porn has been developed into an art form on social media by those determined to cause misery and embarrassment. I and my Liberal Democrat colleagues are very grateful for the meeting with the Minister and his team. The government amendments will make a real difference. Making revenge porn a crime will provide redress to victims and make it clear that society will not tolerate this behaviour.

In Committee, I returned to the sensitive and difficult boundaries of the distribution of images—naked and not always sexual—known as sexting, which is prevalent and increasing among young teens. We need to consider the treatment of minors when they take part and the concern that young people can too easily get caught up in the criminal justice system. I hope that the Minister will be able to give us some reassuring words that minors will not be caught by the Bill and that schools in particular will have clear guidance to ensure that young people understand the importance of not circulating these images.

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I am grateful, as I think my colleagues are, for the work that Julian Huppert and colleagues have done down at the other end of the corridor. Revenge porn is a serious crime. It has too often been hidden because the victims have been too humiliated to come forward. The government amendment will change all that, and I look forward to it coming into law and changing the face of revenge porn for ever.

Baroness Berridge: My Lords, I support the arguments made by my noble friends in relation to this matter. I am pleased to say that, unlike the previous amendment regarding knife crime, there has been agreement, particularly among the Back Benches and the government Benches, on the need to act. I pay tribute to my noble friend Lady Morris of Bolton, who joined me in amendments in Committee but is not able to be here today.

One point that I would make in addition to those that have already been outlined is that these images are not always taken with consent. The development of technology has meant that in situations unbeknown to someone, images are taken through hidden devices and mobile phones. So it might not even be an old Polaroid; people might be completely unaware that an image has been taken, and the first that they know of it is when their ex-partner releases it into the public domain, adding even greater trauma to what is an incredibly traumatic situation for any victim. Unfortunately, there has been the development of certain professional sites where people are making profit out of this situation.

I also join in welcoming the Government’s response in relation to this. I have never found a firm view at the Ministry of Justice on this matter; I have always found there to be an open door and a willingness to consider it. As has been outlined, technology has been leaping ahead in relation to this matter. I pay tribute to the work of organisations such as Women’s Aid and to my right honourable friend Maria Miller, who led a Back-Bench debate in the other place on this issue and has been campaigning vociferously in relation to it.

Baroness Thornton: My Lords, I am pleased to say that we on these Benches support these amendments. Some time ago my right honourable friend Yvette Cooper said that people who post intimate images of their former partners online in so-called revenge porn attacks, or who blackmail them with such images, should face new criminal charges, so of course we support the amendments.

The use of intimate, private sexual images as a weapon with which to embarrass, humiliate and degrade is a crime, and it is right that it should be recognised in law. The new offence is a positive step, although in itself it is not adequate to address the underlying societal attitudes and behaviours that create and legitimise sexual violence, abuse and harassment in all its forms, so a government commitment to addressing those issues is also vital. The noble Baroness, Lady Brinton, is quite right to raise the issue of young people and the importance of not criminalising them or, for example, having them put on the sex offender register at a very early age for doing the extremely stupid things that young people are sometimes prone to doing.

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The Government’s amendments will ensure that this is enacted. However, we need to ask today how effective they will be. I therefore have a series of questions to put to the Minister and to the noble Lord, Lord Marks. Could the Minister explain why this offence was not made part of the Sexual Offences Act? Will convictions for this offence be recorded by the CPS as a sex offence—in other words, would the person convicted be on the sex offender register?

As it stands, depending on the interpretation of “distress”, the law will provide a remedy to a victim who is distressed, but not angry. Professors Rackley and McGlynn, who have been advising many Members of the House throughout the discussions about revenge porn and rape porn, explained that the focus of the law should be on the offender’s actions and the absence of consent, not on the victim’s response, and I think that is right. Does the distress element also place an unnecessary additional burden on the prosecution? Professors Rackley and McGlynn contend that the mental element of the offence should be the intentional act of posting private sexual images without consent, including for the purpose of financial gain. We have to ask whether the issue of distress could actually significantly limit the effectiveness of this offence.

There is concern about the restriction of the offence to identifiable images. It should be immaterial whether someone else recognises the person in the relevant image. The publishing of private sexual images without consent should be a criminal offence, whatever the motivation of the offender and whatever form the victim’s response takes. It is the absence of consent that is fundamental. Would the restriction of the offence to identifiable images result in unnecessarily complicated evidential debates in court?

I will speak briefly to my own Amendment 106. It seems to us that we need to monitor the effectiveness and the implementation of this new law. We believe that the proposals of Clause 31 do not fulfil the Prime Minister’s commitment to equate online restrictions with the BBFC’s guidelines. Although we recognise that legislation in this area is very complex, it needs to be recognised that the Government have not yet solved the problem. It is important that there is a commitment to review the provisions of this clause within a year or so to assess their effectiveness: the number of prosecutions brought, the number of convictions, et cetera. Following a review of the new provisions, if they have not proved effective, the Government should consider the wholesale review of the regulation of obscenity and pornography. This is to ensure that the law is fit for purpose in our technological age and to reorientate the law in this area away from disgust and distaste and toward a focus, perhaps, on cultural harm—a discussion that we have had in this House before. It is therefore important to put in the Bill that 18 months from enactment would be sufficient time to see what was happening to the new regime and that the principle should be that an independent review is conducted.

Lord Faulks: My Lords, I thank my noble friends Lord Marks, Lady Grender, Lady Brinton and Lady Barker for Amendment 98 on the issue of revenge pornography. As the House has been told, I recently met with my noble friends to discuss this amendment,

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which I believe seeks—and this has been confirmed in the course of the debate—to achieve the same aim as the Government’s Amendments 103 to 105, 113 and 186 to 188. We particularly discussed whether the government amendment’s definition of “sexual”, when defining the material that the offence will apply to, is sufficiently explanatory.

My noble friend Lord Marks asked me, in the course of the debate, whether the additional subsections added anything to “sexual” or, as he put it, widened the ambit. I confirm that they do. The use of the word “or” makes that sufficiently clear. A photograph or film is sexual if it shows an individual’s exposed genitals or pubic area or shows something that a reasonable person would consider to be sexual either because of its nature or given its overall content. However, it would not be helpful to go further than this on the face of the statute or now by, for example, listing particular types of sexual material that would be covered. Such a list is unlikely ever to be exhaustive and its inclusion could potentially hinder the judiciary’s ability to interpret the wording of the offence in a flexible way.

My noble friend’s amendment is constructed in a rather different way to the government amendment and omits some important information, but I need comment very little on those details in view of the fact that, after some useful discussions, it has now been accepted by my noble friends on the Liberal Democrat Benches that the government amendment captures what this offence is all about.

The disclosure of this sort of material is undoubtedly extremely distressing for victims. They feel humiliated and are left deeply distraught both by the disclosure of very personal, sexual images of themselves and by the breach of trust involved in sharing images that had been considered private.

I pay tribute to my officials for working extremely hard on what is a very difficult offence to capture appropriately. We all know what this is aimed at, but it has been a considerable challenge to reflect it in the legislation. My officials have been carefully considering this problem with the relevant agencies and interested stakeholders such as the NSPCC and Victim Support. The testimonies we received, together with the efforts of a number of parliamentarians—many of whom have been identified in this debate—confirmed our intention to create a specific offence that will punish this pernicious practice.

The current law can already punish instances of this behaviour in certain circumstances. A number of offences can be used, and the recently updated guidance from the CPS has made clear that, where intimate images are used to coerce victims into further sexual activity, offences in the Sexual Offences Act 2003 can be used both where the victim is an adult and where they are a child.

This offence, however, will target very different behaviour: namely, the malicious disclosure of private sexual photographs or films. The offence seeks to target material, the disclosure of which would have the potential to cause the most harm to an individual. It will therefore apply to the disclosure of private sexual photographs or films of people, such as those which

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show them engaged in sexual activity or depicted in a sexual way where what is shown is not the kind of thing usually seen in public. In determining whether the picture is sexual, the court will be required to take into account both the nature of what is shown and the context provided by the whole of the pictures’ content. To commit the offence, the disclosure must take place without the consent of at least one person featured in the image and with the motivation of causing that person distress.

I will respond to a query posed by the noble Baroness, Lady Thornton, about whether this is regarded as a sexual offence in the same way as an offence in the Sexual Offences Act 2003, such as a sexual assault or voyeurism, is regarded. We absolutely agree that revenge porn is a very serious issue, with the potential to cause great harm. That is why we have introduced this criminal offence, with a substantial period of imprisonment. However, we do not think that it is appropriate to view it as a particular sexual offence in the same way as these other offences. Research in previous cases has shown that revenge porn—the emphasis here being on “revenge”—is perpetrated with the intention of making a victim feel humiliated and distressed rather than to obtain sexual gratification, which is what defines an offence as sexual. Of course, the definition says, “with the intention” of causing distress, so you do not have to have evidence of distress or some rather unnecessary distinctions about what is distress, or anger, and so on. Therefore the intention is there, and revenge lies behind it. That is not to diminish the seriousness, but more accurately to characterise what is the mischief we are aiming at.

The offence will apply equally offline as well as online—not just to images transmitted electronically but also to those which are disclosed in more traditional ways.

These amendments provide three defences available to those charged with the offence. First, it will be a defence for the defendant to prove that they reasonably believed that the disclosure of an image was necessary for the purpose of preventing, detecting or investigating crime. That, I hope, is self-explanatory, and finds its echoes in other legislation.

Secondly, where an individual adduces sufficient evidence that the disclosure inquestion took place in the course of, or with a view to, the publication of journalistic material and they reasonably believed that, in the particular circumstances, the publication of that journalistic material was, or would be, in the public interest it will be for the prosecution to prove the contrary. This defence will, in the rare cases to which we expect it to apply—and rare they will be—enable journalists and their sources to disclose images, for example with a view to publishing a commercial newspaper story, if they genuinely and reasonably believed there was a legitimate public interest in the publication. This is a stringent test but we believe it is necessary to ensure that the offence will not inappropriately interfere with press freedom.

9.45 pm

The third defence applies where a defendant can show that he or she reasonably believed that the image had previously been disclosed for reward, such as in

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the form of commercial pornography, and that they had no reason to think that that previous disclosure for reward had been made without the consent of the victim. While the dissemination of such material might be distressing, we do not believe that the sharing of publicly available material should be regarded in the same way as private material, although of course if such publicly available material is used to coerce, threaten or harass the victim, other offences, depending on the circumstances, may be committed.

The focus of the offence is on photographed and filmed material which record events as they happened in real life. The offence is drafted to ensure that it will apply to material which appears wholly or partly photographic and originates from, or includes, an actual photograph or film recording. So an offence will still be committed if the private sexual part of an original photograph is transposed onto a new background. The offence will also still be committed if the original photograph or film has been manipulated in some way, for example by cosmetically enhancing it.

However, the offence will not be committed if the film or photograph disclosed only becomes private and sexual, or if the victim only appears to be depicted sexually, as a result of any manipulation or as a result of the combining of different images together. For example, the offence would not apply to an image that consisted of an individual’s head that had been superimposed on someone else’s body in order to make it look as if that person was taking part in sexual activity. Although such images can still be distressing to those featured, we do not believe that they have the potential to cause as much harm as disclosure of photographs and films that record real sexual private events.

The offence, which will extend to England and Wales, will be triable either way and punishable with a maximum custodial sentence of two years.

The amendment before you is the result—as we have heard—of much detailed consideration and discussion and is, I hope, carefully constructed to target the specific behaviour in question. I believe this offence will provide an important means of redress for victims of this cruel behaviour, and I am grateful to the right honourable Maria Miller MP and Julian Huppert MP in the other place for bringing this to the Government’s attention. The issue was subsequently debated in this House in Committee and I am similarly grateful to Peers from all sides of the House who took part in that discussion and those who have taken part in the debate today. I am also grateful to those who have no doubt had something to contribute but have sat on their hands out of consideration for the economic disposition of this amendment. I hope that the Government’s amendments will allow my noble friends—and I think they will—to withdraw the amendment.

I turn to Amendment 106 tabled by the noble Baroness, Lady Thornton. Noble Lords approved in Committee the inclusion of Clause 31 to extend the existing extreme pornography offence in Section 63 of the Criminal Justice and Immigration Act 2008 to criminalise the possession of extreme images that depict rape and other non-consensual sexual penetration. Our decision to extend the offence in this manner

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followed a campaign for reform by some of the country’s leading women’s rights groups, as well as passionate arguments put forward by the noble Lords in this House. The noble Baroness’s amendment would insert a requirement for the Secretary of State to arrange an independent review of the impact of the extension to the existing extreme pornography offence 18 months after the section making the extension would come into force. The Secretary of State would then be required to lay a report showing the results of the review before both Houses.

With respect, I think that such a provision is unnecessary. As I have explained previously, the Government have worked hard to ensure that this extension to the existing extreme pornography offence correctly targets the intended material. I recognise that the noble Baroness has expressed concerns about that. However, the Government already keep the general criminal law under review and the same will be true in this case. Indeed, I hope that the Government’s response to the challenge of revenge porn shows a degree of agility on their part. I am glad that, in the face of some pretty sustained criticism of the Ministry of Justice from the Front Bench of the party opposite, there is an acknowledgement of an open-door policy, referred to by my noble friend Lady Berridge. The Ministry of Justice tries to respond and will continue to try to respond to challenges. Statistics showing the number and nature of prosecutions for this offence are kept, and we work closely with key stakeholders and colleagues, such as the Crown Prosecution Service, and with the police to ensure that laws are working effectively and fairly.

I assure noble Lords that we will continue to monitor the law in this area, and I am sure that the noble Baroness will keep us up to the mark in this regard, including on the other important changes made in Clause 31. We will continue to listen to the voices of campaigners and parliamentarians who may have concerns about this sensitive and important area of the law, as well as monitoring the effectiveness of these changes.

In response to an observation made by my noble friend Lady Brinton, of course those in schools will be well aware of sexting and the developments in technology and how they are abused. I think that it would be unwise for me, at the Dispatch Box, to commit to particular responses. However, she has drawn the attention of the House to the matter, and the Department for Education and head teachers generally will no doubt be making themselves aware of these developments. I therefore hope that, given the assurances, the noble Baroness will be prepared not to press her amendment.

Finally, I will speak to government Amendment 124, tabled in my name. The amendment increases the time limit for bringing prosecutions for offences under Section 127 of the Communications Act 2003. The Government are concerned that this restricted time limit gives insufficient time to gather the appropriate evidence for communications offences, such as trolling, that may be captured under this offence. They have therefore decided to increase to three years the time within which offences under Section 127 of the 2003 Act must be prosecuted, so long as the prosecution is brought within six months of the prosecutor having sufficient evidence to justify proceedings.

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As noble Lords may well be aware, the Government accepted an amendment tabled by Angie Bray MP in the other place—now Clause 29 of the Bill. One effect of this new clause is to make the related offence under Section 1 of the Malicious Communications Act 1988 a triable either way offence, with the consequence that the time limit for bringing a prosecution for a summary offence will no longer apply to it. This amendment reflects one of the intentions behind that change by similarly providing a longer time limit within which prosecutions for offences under Section 127 of the Communications Act can be brought. This will mean better protection for those at risk of becoming victims of a Section 127 offence, including vulnerable young people. Allowing more time for prosecutions to be brought will enable a greater number of prosecutions. The Government remain committed to improving the safety of children online and have a strong track record in working with the internet industries and a range of other stakeholders to drive progress.

As I am sure all noble Lords will agree, protecting children and vulnerable people online is of utmost importance to the Government and society as a whole, and the Government want to remove any unnecessary barriers to prosecutions in this area. This amendment will ensure that there is sufficient time to gather the evidence needed and prosecute those who use threatening or abusive behaviour.

I hope that this group of amendments represents a concerted effort on the part of a number of parliamentarians to produce a good response to the challenges that new technology has presented in this sensitive area. I hope that the House will, in due course, agree to Amendments 103 to 105, 113, 124 and 186 to 188.

Lord Marks of Henley-on-Thames: My Lords, in withdrawing Amendment 98, I simply say that I am grateful for my noble friend’s clarification that he agrees with our view that proposed new subsections (3)(b) and (3)(c) in Amendment 105 do indeed add to the rather definite description of “sexual” in subsection (3)(a).

At the meeting that we have mentioned, we discussed whether we should include a non-exhaustive list of factors that might be taken into consideration when coming to a conclusion as to whether an image is sexual. I have reached the clear view that the Minister and his officials are right to conclude that such a list would not be helpful; indeed, it might have the effect of limiting the ambit of the offence. I beg leave to withdraw the amendment.

Amendment 98 withdrawn.

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(a) the applicant can show direct descent from the deceased person or from the parents of the deceased person;

(b) the applicant can provide proof of the death of the person for whom the application is being made; and

(c) the conviction for which the application is made is recorded in Police Central Records or the applicant can supply documentary evidence to satisfy the Secretary of State that the offence for which the deceased person was convicted or cautioned was not non-consensual, did not involve persons under the then age of consent and did not take place in a public lavatory or other proscribed public place and was not otherwise a criminal offence.”

(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 (LD): My Lords, in 2012 we passed the Protection of Freedoms Act, which allowed all those men convicted under the Labouchere amendment of 1865 and similar homophobic laws to apply to have their convictions disregarded. Some 75,000 men were convicted under these Acts; 16,000 of them are still alive and may apply to have their convictions disregarded—around 200 already have done so. However, 59,000 similarly convicted men are now dead, and the Protection of Freedoms Act makes no provision for them.

At every opportunity since the passing of this Act, I have tried to do something about this—quite often at 10 pm at night. I have tried to amend the Act so that the applications for disregard can be lodged for those now dead as well as for those still living. This seems to me a matter of elementary justice, fairness and equal treatment, and a matter of granting comfort to the families and friends of those convicted but now dead. It is a matter of providing public recognition of a wrong done. It would bring an appropriate closure to a long-running injustice against homosexual men.

In Committee on the Bill, I tried again to do this, to bring about equality of treatment for the victims of our past homophobic laws for the living and for the dead. Once again, the Government felt unable to agree and put forward two arguments. The first was that the intention of the disregard for the living was essentially practical. It was to enable convicted individuals to get on with their lives without the stigma of the disregarded offence. Since the last convictions were more than 40 years ago, this will have had a welcome, but very limited, effect. In any event, this is surely only a part of the purpose of the disregard. It overlooks the comfort provided to families, friends and lovers and it overlooks the public recognition of the wrongs done to those men.

The Government’s second argument seemed to have more force. They were concerned that extending the disregard would place a disproportionate burden on public resources. For example, they were concerned about the cost and time involved in finding records that predated the establishment of the National Policing Improvement Agency’s central database. However, in rejecting my amendment, the Minister agreed to facilitate meetings with the Home Office and the Ministry of

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Justice to discuss the matter. I was very grateful that these meetings took place last Tuesday and Thursday, during which it became clear that the Home Office officials’ concerns about disproportionate time and costs in extending the disregards had three basic components. The first was the danger of being overwhelmed by bulk applications. The second was the sheer difficulty in finding older records; it was pointed out to me that there was no central database for very old records, some of which may be held in local police stations or may not exist. Even if they did exist and were found, they might not contain sufficient information to qualify a person for a disregard. The third problem was the danger of spoof applications—in other words, applications lodged on behalf of an allegedly deceased person while that person was still alive. It was extremely helpful to have these concerns explained, for which I owe a debt to the Minister and to his officials.

This explanation of the likely difficulties has enabled me to revise my Committee amendment considerably. The amendment now before your Lordships addresses each of the Home Office’s concerns. The first part of the amendment addresses the concern about bulk applications by restricting the class of people who may apply on behalf of a deceased person to the direct descendants of that person or to their parents.

10 pm

The second part addresses the issue of spoof applications and requires the production of a relevant death certificate. The third part restricts the timeframe over which applications may be made. Essentially it makes the same process possible for applications for those now dead as for those living, by restricting applications to those convictions recorded in police central records, which go back to 1918. This should ensure that the work involved in processing any application on behalf of the deceased person is no greater than the work involved in processing an application for a living person.

There is one additional feature of the amendment. It would allow applications relating to convictions prior to the establishing of the police central records if, and only if, the applicants themselves could supply all the documentation required by the Act. I believe that this revised amendment addresses the problems raised by the Government. I hope that they will be able finally to support the amendment.

I realise, however, that this has been put together at some speed and rather at the last minute, and the Government may feel that they need some time to consider in depth the implications of this new amendment. I hope in that case that they will be able to reassure the House that they will consider the matter very quickly. I hope, too, that the Minister will be able to tell the House that if the Government consider the problems resolved or resolvable they will bring forward their own amendment at Third Reading.

We first debated extending the disregard two years ago. There have been real problems, but I now believe that we have a solution. We are now in a position to provide equal treatment to the victims, living and dead, of our past homophobic laws. We can extend

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the comfort and recognition of wrong treatment that the disregard already brings to the living—to the family, friends, lovers and supporters of those similarly convicted but now dead. I beg to move.

Lord Lexden (Con): My Lords, I am glad to support this amendment, just as I was very glad to support the previous version that my noble friend Lord Sharkey put forward in Committee. As my noble friend reminded us again this evening, in 2012 Parliament made a decision of major importance to the gay community. It made provision in law that all living persons who had been convicted of sexual offences that have subsequently been swept away should have the absolute right to apply to have those unfair convictions disregarded. The statute book was disfigured in 1885 by the Criminal Law Amendment Act, which contained a notorious provision, smuggled into the legislation late at night, which criminalised gay men—not gay women—for the first time for consensual sexual acts in private. That provision should never have been passed. It, and other discriminatory laws were repealed some 80 years later, after they had wrecked the lives of thousands of fine gay men. The majority of them are now dead and it must surely be right that the arrangements introduced in 2012 in respect of living persons should be extended so that the families of those no longer alive can seek true justice for their forebears, and so gain satisfaction and peace of mind that such belated justice can bring.

On behalf of the gay community I thank my noble friend for the care with which, since Committee, he has discussed his amendment, as he has told us, with Ministers and officials, and modified it in the light of their comments. This amendment is needed to complete a laudable rectification of great injustice. But it will do something else of great importance, as my noble friend Lord Black of Brentwood, who cannot be here this evening, made clear in Committee. It would signal to the many countries in the Commonwealth which maintain oppressive anti-gay laws for which this country was originally responsible that Britain now wholly rejects unjust and oppressive treatment of gay people and, so far as is possible, has made amends for terrible, terrible past errors. I hope that the Government will look favourably on this amendment.

Lord Beecham: My Lords, I join the noble Lord, Lord Lexden, in supporting this amendment. I hope the Government will look at it sympathetically. In previous debates, the Minister had some reservations about costs and the like, which have now been addressed by the amendment of the noble Lord, Lord Sharkey. I very much hope that the Minister will indicate that the Government are prepared to accept that.

If there remain any areas of doubt, then perhaps he would undertake to bring the matter back at Third Reading so that any potential difficulties or shortcomings might be addressed. It is clearly not easy to do that after 10 pm on the first day on Report. I hope we can resolve any remaining doubts at Third Reading, though if the Minister is able to accept the amendment this evening then so much the better.

Lord Faulks: My Lords, I thank the noble Lord, Lord Sharkey, for his continued concern and interest in this matter, and for his elegant and accurate summary

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of the progress of the amendment and the resultant meetings that took place with me, my noble friend Lord Bates and Home Office officials. I hope that the noble Lord is reassured that the Government now recognise his concerns, which have been eloquently supported this evening by my noble friend Lord Lexden, as they were in Committee.

The Protection of Freedoms Act reflected the Government’s determination that people’s lives should not be unfairly blighted by historical convictions for consensual gay sex with people over 16. However, where someone has died, these provisions would not have the same effect. The Government accept that, as well as removing obstacles for the living to find work, there is a recognition that a disregard puts right a historic wrong, and that this would apply to the deceased as well as the living.

Following the helpful discussions the noble Lord, Lord Sharkey, had with me, my noble friend Lord Bates and Home Office officials, the Government are willing to explore ways of achieving disregards for the deceased, over a longer timescale. What I mean by “over a longer timescale” is not while this Bill is going through its process and not by Third Reading, as I understand my noble friend was indicating. He may ask why not. We have made some progress, but officials would want to carry out a full and proper assessment. Some issues that require attention include a precise definition of who could apply on behalf of the deceased. We have made progress in that. There is an assumption that the amount of applications will be manageable, but we want to carry out more work to obtain greater confidence on this, as each application does place a significant burden of work on the police in tracing local records. On documentary evidence, the effect of a disregard is not clear, as there are no police records to delete, and we would not want to destroy historic records from the National Archives.

These points were touched on in our meetings, but officials are most anxious that all those matters should be completely resolved before proceeding to legislate rather than to impose too heavy a burden, when we ask them to focus on so many other issues. We want to ensure that the decision to disregard maintains the current exacting standard to ensure that only the deserving are granted a disregard. Of course, there are very deserving cases.

While I cannot accept this amendment and I am not committing to introduce such a change in this Bill, the Home Office repeats its commitment to consider this matter and would be happy to include the noble Lord, Lord Sharkey, in any further discussions. He has done the House a great service by bringing this to our attention but I hope the assurances that I have given will allow him to withdraw his amendment.

Lord Sharkey: I thank the Minister for his reply and am grateful for the progress that we have been able to make in advancing the case for the posthumous disregard. I would have been even more grateful had he been able to say that the matter could be dealt with at Third Reading, but I understand that it is important to do this in a timely and proper manner.

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I would like to know, however, what timescale is envisaged. We know what we are trying to check; we know what assessments we have to make. I wonder whether the Minister can give me some sense of how long it might take and perhaps some reassurance that, when it comes to discussions about the scope of Home Office Bills, there will be some liberality in the interpretation of “scope” to enable an amendment, if we get to that point, to be brought forward in a forthcoming Home Office Bill.

Having said all that, I repeat that I am grateful for the help given by the Ministry of Justice and the Home Office. I hope that we can make fairly rapid progress from hereon. I beg leave to withdraw the amendment.

Amendment 99 withdrawn.

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6 (1) Section 130 (compensation orders against convicted persons) is amended as follows.

(2) In subsection (2), for the words from “section 110(2)” to “2006” substitute “a provision mentioned in subsection (2ZA)”.

(3) After that subsection insert—

“(2ZA) The provisions referred to in subsection (2) are—

(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953;

(b) section 51A(2) of the Firearms Act 1968;

(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988;

(d) section 110(2) or 111(2) of this Act;

(e) section 224A, 225(2) or 226(2) of the Criminal Justice Act 2003;

(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”

7 (1) Section 146 (driving disqualification for any offence) is amended as follows.

(2) In subsection (2), for the words from “section 110(2)” to “2006” substitute “a provision mentioned in subsection (2A)”.

(3) After that subsection insert—

“(2A) The provisions referred to in subsection (2) are—

(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953;

(b) section 51A(2) of the Firearms Act 1968;

(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988;

(d) section 110(2) or 111(2) of this Act;

(e) section 224A, 225(2) or 226(2) of the Criminal Justice Act 2003;

(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”

8 In section 164(3) (further interpretive provisions)—

(a) in paragraph (aa), after “section” insert “1(2B) or”, and

(b) in paragraph (ba), after “section” insert “139(6B), 139(5B) or”.

Criminal Justice Act 2003 (c. 44)

9 The Criminal Justice Act 2003 is amended as follows.

10 (1) Section 142 (purposes of sentencing: offenders aged 18 or over) is amended as follows.

(2) In subsection (2)(c), for the words from “section 1A(5)” to “detention for life for certain dangerous offenders)” substitute “a provision mentioned in subsection (2A)”.

(3) After that subsection insert—

“(2AA) The provisions referred to in subsection (2)(c) are—

(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for certain offences involving offensive weapons);

(b) section 51A(2) of the Firearms Act 1968 (minimum sentence for certain firearms offences);

(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for certain offences involving article with blade or point or offensive weapon);

(d) section 110(2) or 111(2) of the Sentencing Act (minimum sentence for certain drug trafficking and burglary offences);

(e) section 224A of this Act (life sentence for second listed offence for certain dangerous offenders);

(f) section 225(2) or 226(2) of this Act (imprisonment or detention for life for certain dangerous offenders);

(g) section 29(4) or (6) of the Violent Crime Reduction Act 2006 (minimum sentence in certain cases of using someone to mind a weapon).”

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11 (1) Section 142A (purposes of sentencing: offenders under 18) is amended as follows.

(2) In subsection (4), for paragraph (b) substitute—

“(b) to an offence the sentence for which falls to be imposed under a provision mentioned in subsection (5), or”.

(3) At the end insert—

“(5) The provisions referred to in subsection (4)(b) are—

(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for certain offences involving offensive weapons);

(b) section 51A(2) of the Firearms Act 1968 (minimum sentence for certain firearms offences);

(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for certain offences involving article with blade or point or offensive weapon);

(d) section 226(2) of this Act (detention for life for certain dangerous offenders);

(e) section 29(6) of the Violent Crime Reduction Act 2006 (minimum sentence in certain cases of using someone to mind a weapon).”

12 (1) Section 144 (reduction in sentences for early guilty pleas) is amended as follows.

(2) In subsection (2), for the words from “an offence” to “nothing” substitute “an offender who—

(a) is convicted of an offence the sentence for which falls to be imposed under a provision mentioned in subsection (3), and

(b) is aged 18 or over when convicted,

nothing”.

(3) In subsection (3)—

(a) for “section 1A(6)(a)” substitute “section 1(2B) or 1A(5)”, and

(b) for “section 139AA(8)(a)” substitute “section 139(6B), 139A(5B) or 139AA(7)”.

(4) In subsection (4), for the words from “an offence” to “nothing” substitute “an offender who—

(a) is convicted of an offence the sentence for which falls to be imposed under a provision mentioned in subsection (5), and

(b) is aged 16 or 17 when convicted,

nothing”.

(5) In subsection (5)—

(a) for “section 1A(6)(b)” substitute “section 1(2B) or 1A(5)”, and

(b) for “section 139AA(8)(b)” substitute “section 139(6B), 139A(5B) or 139AA(7)”.

13 In section 150(2) (community order not available where sentence fixed by law etc), for paragraphs (a) and (b) substitute—

“(a) falls to be imposed under section 1(2B) or 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for certain offences involving offensive weapons), or

(b) falls to be imposed under section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for certain offences involving article with blade or point or offensive weapon).”

14 (1) Section 152 (general restrictions on imposing discretionary custodial sentence) is amended as follows.

(2) In subsection (1)(b), for the words from “section 1A(5)” to the end substitute “a provision mentioned in subsection (1A).”

(3) After that subsection insert—

“(1A) The provisions referred to in subsection (1)(b) are—

(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953;

(b) section 51A(2) of the Firearms Act 1968;

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(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988;

(d) section 110(2) or 111(2) of the Sentencing Act;

(e) section 224A, 225(2) or 226(2) of this Act;

(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”

15 (1) Section 153 (length of discretionary custodial sentences: general provision) is amended as follows.

(2) In subsection (2), for the words from “section 1A(5)” to “this Act” substitute “the provisions listed in subsection (3)”.

(3) After that subsection insert—

“(3) The provisions referred to in subsection (2) are—

(a) sections 1(2B) and 1A(5) of the Prevention of Crime Act 1953;

(b) section 51A(2) of the Firearms Act 1968;

(c) sections 139(6B), 139A(5B) and 139AA(7) of the Criminal Justice Act 1988;

(d) sections 110(2) and 111(2) of the Sentencing Act;

(e) sections 226A(4) and 226B(2) of this Act;

(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”

16 (1) Section 305(4) (interpretation of Part 12) is amended as follows.

(2) In paragraph (za)—

(a) for “subsection (5) of section 1A” substitute “section 1(2B) or 1A(5)”, and

(b) for “that subsection” substitute “that provision”.

(3) In paragraph (aa)—

(a) for “subsection (7) of section 139AA” substitute “section 139(6B), 139A(5B) or 139AA(7)”, and

(b) for “that subsection” substitute “that provision”.

Coroners and Justice Act 2009 (c. 25)

17 (1) Section 125(6) of the Coroners and Justice Act 2009 (sentencing guidelines: duty of court) is amended as follows.

(2) In paragraph (ea)—

(a) for “section” substitute “sections 1(2B) and”, and

(b) for “offence of threatening with offensive weapon in public” substitute “certain offences involving offensive weapons”.

(3) In paragraph (fa)—

(a) for “section” substitute “sections 139(6B), 139A(5B) and”, and

(b) for “offence of threatening with” substitute “certain offences involving”.”

Amendment 100 agreed.

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(a) in subsection (4)(e) and (f), omit “calculated after that term has been reduced by any relevant discount”,

(b) in subsection (4)(h), omit “calculated after that sentence has been reduced by any relevant discount”, and

(c) omit subsection (6) (definition of “relevant discount”).

(3) In consequence of the amendments made by subsections (1) and (2), omit paragraphs 8 and 12 of Schedule 13 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012.”

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103: After Clause 29, insert the following new Clause—

“Disclosing private sexual photographs and films with intent to cause distress

(1) It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made—

(a) without the consent of an individual who appears in the photograph or film, and

(b) with the intention of causing that individual distress.

(2) But it is not an offence for the person to disclose the photograph or film to the individual mentioned in subsection (1)(a) and (b).

(3) It is a defence for a person charged with an offence under this section to prove that he or she reasonably believed that the disclosure was necessary for the purposes of preventing, detecting or investigating crime.

(4) It is a defence for a person charged with an offence under this section to show that—

(a) the disclosure was made in the course of, or with a view to, the publication of journalistic material, and

(b) he or she reasonably believed that, in the particular circumstances, the publication of the journalistic material was, or would be, in the public interest.

(5) It is a defence for a person charged with an offence under this section to show that—

(a) he or she reasonably believed that the photograph or film had previously been disclosed for reward, whether by the individual mentioned in subsection (1)(a) and (b) or another person, and

(b) he or she had no reason to believe that the previous disclosure for reward was made without the consent of the individual mentioned in subsection (1)(a) and (b).

(6) A person is taken to have shown the matters mentioned in subsection (4) or (5) if—

(a) sufficient evidence of the matters is adduced to raise an issue with respect to it, and

(b) the contrary is not proved beyond reasonable doubt.

(7) For the purposes of subsections (1) to (5)—

(a) “consent” to a disclosure includes general consent covering the disclosure, as well as consent to the particular disclosure, and

(b) “publication” of journalistic material means disclosure to the public at large or to a section of the public.

(8) A person charged with an offence under this section is not to be taken to have disclosed a photograph or film with the intention of causing distress merely because that was a natural and probable consequence of the disclosure.

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

(a) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both), and

(b) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine (or both).

(10) Schedule (Disclosing private sexual photographs or films: providers of information society services) makes special provision in connection with the operation of this section in relation to persons providing information society services.

(11) In relation to an offence committed before section 154(1) of the Criminal Justice Act 2003 comes into force, the reference in subsection (9)(b) to 12 months is to be read as a reference to 6 months.

(12) In relation to an offence committed before section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force, the reference in subsection (9)(b) to a fine is to be read as a reference to a fine not exceeding the statutory maximum.”

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(2) A person “discloses” something to a person if, by any means, he or she gives or shows it to the person or makes it available to the person.

(3) Something that is given, shown or made available to a person is disclosed—

(a) whether or not it is given, shown or made available for reward, and

(b) whether or not it has previously been given, shown or made available to the person.

(4) “Photograph or film” means a still or moving image in any form that—

(a) appears to consist of or include one or more photographed or filmed images, and

(b) in fact consists of or includes one or more photographed or filmed images.

(5) The reference in subsection (4)(b) to photographed or filmed images includes photographed or filmed images that have been altered in any way.

(6) “Photographed or filmed image” means a still or moving image that—

(a) was originally captured by photography or filming, or

(b) is part of an image originally captured by photography or filming.

(7) “Filming” means making a recording, on any medium, from which a moving image may be produced by any means.

(8) References to a photograph or film include—

(a) a negative version of an image described in subsection (4), and

(b) data stored by any means which is capable of conversion into an image described in subsection (4).”

Amendments 101 to 105 agreed.

Amendment 106 not moved.

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Lord Marks of Henley-on-Thames: My Lords, this group comprises Amendments 106A to 106D and 181A and is the last group at the end of a long day.

Amendments 106A to 106C would introduce new defences to criminal offences under three statutes, the Computer Misuse Act 1990, the Bribery Act 2010 and the Data Protection Act 1998.

I turn to Amendment 106A. Section 1 of the Computer Misuse Act creates an offence effectively of using a computer to secure unauthorised access to data or to a program—in other words, what is conventionally called hacking into other people’s computers. The amendment would create a public interest defence to that offence. The defence proposed is directly in line with a defence that already exists under Section 55(2) of the Data Protection Act 1998, to which I will return in respect of Amendments 106C and 106D.

The amendment would place the onus squarely on the defence, stating:

“Subsection (1) does not apply to a person who shows”.

The defences are that the conduct which would be an offence was necessary for the purpose of preventing or detecting crime or was required or authorised by or under any enactment, a rule of law or by order of a court; or that the defendant acted in the reasonable belief that he had the right to carry out that conduct; or that he acted in the reasonable belief that he had relevant authority; or that he reasonably believed that the conduct was justified as being in the public interest; or that in the particular circumstances the conduct was justified as being in the public interest.

10.15 pm

I say at the outset that I accept that these amendments are proposed late in the day in the Bill’s passage, and that there has not been sufficient time for them to be fully ventilated and considered. For that reason I will not be pressing the amendments to a vote tonight. However, I have tabled them in the hope that the

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Government will give them further consideration. These are, I suggest, sensible public interest amendments and they are directed to protecting the public interest in tightly circumscribed conditions.

Amendment 106B deals with the offence under the Bribery Act. It is an exactly similar offence to an offence under Section 1 of the Bribery Act, which quite properly makes it an offence to offer a promise of,

“financial or other advantage … to induce a person to perform”,

a function improperly or where acceptance of such an advantage would itself be improper. I accept that these are complex areas, but in tabling these amendments I do not believe that it is right to criminalise without exception responsible journalism on these issues, which the other defences available to this offence do not cover. I suggest that the offence as it stands strikes the wrong balance between the public interest in responsible journalism and the public interest in the concern to stamp out corruption.

Most commonly, offences under the Bribery Act that might be amenable to this defence would concern payment by journalists for stories when it is in the public interest to publish such stories. There is some evidence that newspapers feel that they have to turn away whistleblowers who want or seek compensation for the risks they take in becoming whistleblowers by exposing what may be going on in the organisations for which they work, and which would otherwise be caught by the Bribery Act. There is a risk that both the provisions that I mention in the Computer Misuse Act and the Bribery Act could act—and do act sometimes—as a gag on journalism. These defences would respond to that, but I emphasise that these defences would be difficult to prove and only seriously undertaken.

Amendment 106C would establish an extra defence to offences under Section 55 of the Data Protection Act. That section creates offences of unlawfully obtaining personal data held by a data controller and procuring,

“disclosure to another person of the information contained in personal data”.

As I have mentioned, there is already in Section 55(2) of the Act a precisely similar defence to those proposed in my earlier amendments to introduce defences under the two other Acts—the Computer Misuse Act and the Bribery Act.

Amendment 106C would introduce a further defence of public interest journalism or publication for artistic or literary purposes. The special purposes mentioned in the amendment are defined by Section 3 of the Data Protection Act as,

“the purposes of journalism … artistic purposes, and … literary purposes”.

The defence would protect a publisher of information who acted for the special purposes—that is those purposes—or,

“with a view to the publication by any person of any journalistic, literary or artistic material, and in the reasonable belief that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest”.

As with Amendment 106D, there is a history to this amendment. The new defence proposed in Amendment 106C is a defence legislated for in exactly this form by Section 78 of the Criminal Justice and Immigration Act 2008. Our concern is that the amendment is not

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yet in force. This is a free speech amendment once again; there is again a balance to be struck between the interests of free speech and the requirements of journalism, art and literature on the one hand against the demands of preserving the confidentiality of personal data. In 2008, Parliament legislated for this defence, which has not been implemented, and it should be implemented now.

Amendment 106D would introduce the possibility of custodial sentences for offences under Section 55 of the Data Protection Act of unlawfully obtaining or disclosing personal data. That is the same offence with which the previous amendment was concerned. Under Section 60 of that Act at present, only fines are available and, to put it bluntly, the threat of fines is frequently insufficient as a punishment. There is a risk that payment of fines may be regarded and treated as no more than a necessary expense by unscrupulous publishers who act with intent to circumvent the Data Protection Act.

Amendment 106D was also legislated for in the Criminal Justice and Immigration Act 2008, where it forms Section 77. That section, implemented by the previous Labour Government, provided for custodial sentences, as does this, of 12 months on summary conviction and two years on indictment, and could be introduced by the Secretary of State by order only after consultation with the Information Commissioner, media organisations and such other persons as the Secretary of State considered appropriate. The Labour Government consulted twice on this issue and on whether to introduce the public interest defence that would be provided for in Amendment 106C.

In 2011, the Government announced that they were keeping both issues under review. On 22 September 2013, the Secretary of State wrote to the chairman of the Home Affairs Committee:

“We therefore intend to conduct a public consultation on the full range of data protection proposals, including on whether to introducing custodial sentences under section 77 of the CJIA. Consultation on the latter is a statutory requirement. This will enable us to seek views on their impact and how they might be approached. We think it is important that the public get the opportunity to consider the question of whether to introduce custodial penalties for breaches of section 55 in the context of Lord Justice Leveson’s wider proposals relating to the data protection framework”.

Your Lordships may think that that was a clear pledge by the Secretary of State to introduce consultation with a view to implementation in the context of Lord Justice Leveson’s proposals. The proposals were contained in recommendation 54, where Lord Justice Leveson said:

“The necessary steps should be taken to bring into force the amendments made to section 55 of the Data Protection Act 1998 by section 77 of the Criminal Justice and Immigration Act 2008 (increase of sentence maxima) to the extent of the maximum specified period; and by section 78 of the 2008 Act (enhanced defence for public interest journalism)”.

Those are precisely the amendments that we now contend for.

Amendment 181A is an important amendment to the commencement section. It would provide that the two sections would become law on the day that this Bill is enacted. It would thus ensure that there should be no further prevarication, the consultations that

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there have been being sufficient. There is no excuse for further delay. These amendments seek to ensure action now. I beg to move.

Lord Beecham: My Lords, were any other Members present, they might share my bewilderment at being faced at a very late stage, not only today but in the process of the Bill, with a series of amendments of what can only be described as some complexity for those of us—and I suspect that is most of us—who are not familiar with the territory to which the noble Lord has introduced us this evening at some length. As he has said, it is not possible—it is simply laughable—to endeavour to take these amendments to a vote tonight, but it may also be difficult to do this in time for Third Reading. The Minister may be able to comment on that.

Among these puzzling amendments I am puzzled most by Amendment 106C, with its reference in particular to a defence of there being a view to publication of journalistic, literary or artistic material. I do not see how that meets the more substantive case that I can well see in relation to what might be called the Leveson issues in 106A. These are matters that clearly need to be investigated further. I do not know whether the noble Lord envisages having these matters dealt with at Third Reading, but frankly I should have thought that that was unrealistic at this stage of the Bill. There may be another opportunity with other Bills for these matters to be taken forward. They are of such complexity that it is unreasonable to expect them to be dealt with in the course of this Bill. If that sounds a bit too ministerial, I apologise. I apprehend that the Minister might for once think that I am on the right track. We shall find out shortly.

Lord Faulks: My Lords, the noble Lord, Lord Beecham, often sounds ministerial, and from comments that he may have made earlier this afternoon he is clearly anticipating events in May when he will be able to perform that task. I do find myself in the rare position of agreeing with his comments generally about these amendments, in that they have appeared very late—late even among the amendments that have appeared in the course of this Bill, and there has been no shortage of amendments and no shortage of complexity in amendments. Indeed, I pay tribute to Members of the House for managing to get through so many amendments of such complexity today. It has taken a great deal of restraint by Members to enable the arguments to be deployed, often by others. No doubt those Members who restrained themselves may have thought they would have made better arguments or expressed the arguments with more clarity than those who did speak, but admirable restraint was shown.

We come to consider these amendments. My noble friend Lord Marks will appreciate that the pressures of time on myself and my officials has limited my ability to respond adequately to what are plainly serious issues, as he has outlined. I intend to speak to Amendments 106C and 106D in this group first. Sections 77 and 78 of the Criminal Justice and Immigration Act 2008 already provide for the changes that have been proposed for the Data Protection Act. Section 77 provides for an order-making power permitting

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the Secretary of State to introduce a custodial sentence for breaches of the offence in Section 55 of the Data Protection Act 1998. The penalty will apply irrespective of who has committed the offence. Given that people’s liberty is at stake and the seriousness of the offence, it is vital that proper thought is given to the introduction of such a change. That is why Parliament also provided that there must be a properly undertaken and detailed consultation with the Information Commissioner, the media and other potentially affected parties before that penalty applies. Therefore, such a change in the law now would be premature.

10.30 pm

All the changes to the Data Protection Act that Lord Justice Leveson proposed need to be considered together, as a package of checks and balances. The European Commission is currently working on a new data protection regulation and it is the Government’s view that the Leveson recommendations should be viewed in that overall context. For that reason, I am afraid that I cannot support this amendment.

I turn now to Amendments 106A and 106B, which insert new defences to offences under the Bribery Act 2010 and Section 1 of the Computer Misuse Act. Offences committed under these Acts amount to serious breaches of the criminal law. Provisions in each of those Acts already contain targeted defences. The Computer Misuse Act includes a savings provision for law enforcement, while the Bribery Act contains a defence that applies to the conduct of the intelligence services or the Armed Forces when engaged in active service, which is necessary for the proper exercise of their functions. The existing defences for these offences have been carefully considered.

From what my noble friend Lord Marks said, I understand that the primary intention behind all these amendments is to provide a defence for journalists acting in the public interest. While I agree that it is important that journalists can undertake genuine investigative work to uncover misconduct, these amendments raise complex areas that need more thinking and a detailed understanding. I am sure that the majority of journalists work with the utmost integrity but there is a risk that such defences could encourage a culture of wrongdoing, however well intentioned they may be. Of course, the defences would also have a much wider application—for example, giving any potential defendant the right to show that they had a reasonable belief that what they were doing was not illegal.

Noble Lords will be aware that the Crown Prosecution Service must take the public interest into account in deciding whether to prosecute in every case. In addition, proceedings under the Bribery Act may be instituted only with the personal, non-delegable consent of the Director of Public Prosecutions or the director of the Serious Fraud Office. This provides an important safeguard against inappropriate prosecutions against journalists or, indeed, anyone else.

For the reasons outlined in my remarks, we consider that further thinking is needed in these complex areas. We do not take issue with the fact that these are

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matters of concern, and I do not criticise my noble friend Lord Marks at all for raising them, albeit at a late stage. However, I hope that he appreciates that the complexity of the issues, together with the competing interests at the heart of these amendments, means that they should not in any way be rushed. They took a long time to identify in the course of the Leveson report. They have been the subject of much comment inside and outside Parliament. All the appropriate considerations and consultations need to take place before we can proceed with this matter. I hope that that will persuade my noble friend to withdraw his amendment.

Lord Marks of Henley-on-Thames: My Lords, I say at the outset that I entirely accept the point made by both the Minister and the noble Lord, Lord Beecham, so elegantly and in such a restrained fashion, about the lateness of these amendments. I entirely accept that the complexity of these amendments, and the fact that the Government and the Opposition have had so little time to consider them, means that it would be wrong of me to press them to the vote today.

Nevertheless, in encouraging my noble friend and his department to give further consideration to the points raised by the amendments, I will deal briefly with some of his points. He mentioned the need for consultation under Section 77 of the Criminal Justice and Immigration Act, affecting Section 55 of the Data Protection Act—as it would be with the amendment—and he deduced from that that it would be wrong to proceed without consultation. The fact is that there have been two consultations on this issue by the previous Government, and furthermore we now have the clear recommendations of the Leveson report that both of these provisions should now be implemented. In those circumstances I find it hard to understand why he expresses the view so clearly that all Leveson’s proposed changes on data protection have to be understood together. The proposals on the new defence are not subject to a consultation requirement; that refers only to the new penalties, for which there is a crying need.

I will also deal with what my noble friend said about the existing defences, particularly his reference to the Bribery Act. He mentioned that there are defences under the Bribery Act which cover conduct by the intelligence services or the Armed Forces on active service. That may be right, but it is hardly relevant to the question of whether responsible journalism should give rise to an entirely separate defence. He also mentioned the Computer Misuse Act including a saving provision for law enforcement—again, hardly relevant to whether a public interest defence should be allowed in respect of that Act.

My noble friend is right to say the purpose of these amendments is to provide a defence for journalists acting in the public interest. It is always an important issue for the public to be protected. I suggest that the balance that needs to be struck, between journalists being able to carry out investigative work for a genuine public reason and the need to protect the public from computer misuse and unlawful conduct offering financial advantage, is one which needs a great deal of attention.

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He is of course right that the Crown Prosecution Service has to take the public interest into account. However, the fact that it has to consider whether a couple of further defences would succeed before making its decision is not a reason for the Government not to take these amendments forward at a later stage. I beg leave to withdraw the amendment.

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Amendment 106A withdrawn.

Amendments 106B to 106D not moved.

House adjourned at 10.41 pm.