Thursday 16th April 2026
(1 day, 15 hours ago)
Lords ChamberCrime and Policing Bill 2024-26 View all Crime and Policing Bill 2024-26 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 186-I Marshalled list for Consideration of Commons Reasons and Amendments - (15 Apr 2026)
12:38 - Division on Motion A1 (as an amendment to Motion A) - Ayes: 216 / Noes: 141 - Motion A1 agreed.
12:50 - Division on Motion D1 (as an amendment to Motion D) - Ayes: 225 / Noes: 144 - Motion D1 agreed.
15:07 - Division on Motion Q1 (as an amendment to Motion Q) - Ayes: 142 / Noes: 192 - Motion Q1 disagreed.
15:20 - Division on Motion R1 (as an amendment to Motion R) - Ayes: 135 / Noes: 154 - Motion R1 disagreed.
15:31 - Division on Motion S1 (as an amendment to Motion S) - Ayes: 192 / Noes: 142 - Motion S1 agreed.
15:43 - Division on Motion U1 (as an amendment to Motion U) - Ayes: 186 / Noes: 144 - Motion U1 agreed.
16:07 - Division on Motion V1 (as an amendment to Motion V) - Ayes: 115 / Noes: 121 - Motion V1 disagreed.
Lord Hanson of Flint
That this House do not insist on its Amendment 2 and do agree with the Commons in their Amendments 2A to 2C in lieu.
“(3A) In section 56 (guidance), after subsection (1) insert—
“(1A) Guidance issued under this section may include guidance about the issue of fixed penalty notices under section 52 by authorised persons (within the meaning of section 52(1)).””
“(5) In section 73 (guidance), after subsection (1) insert—
“(1A) Guidance issued under this section may include guidance about the issue of fixed penalty notices under section 68 by authorised persons (within the meaning of that section).””
The Minister of State, Home Office (Lord Hanson of Flint) (Lab)
My Lords, in speaking to Motion A, I will speak also to Motions B, F and P in this group.
Amendment 2 is intended to ensure that accredited or authorised persons or their employers may not profit financially from fixed penalty notices issued for breaches of community protection notices or public spaces protection orders. I have had discussions with the noble Lord, Lord Clement-Jones, on a number of occasions and I fully understand the concerns he has raised that fixed penalty notices could be issued disproportionately where there is a financial incentive to do so. However, I must stress that this amendment risks weakening crucial enforcement action taken to address those who breach community protection notices or public spaces protection orders, and such a bar would, in effect, put an end to all outsourcing and could significantly reduce enforcement capacity.
Therefore, I have tabled our Amendments 2A to 2C in lieu, which seek to ensure that statutory guidance is issued that addresses the need for proportionality in the issuing of fixed penalty notices. I have had an opportunity to discuss that with the noble Lord outside the Chamber, and I await his comments in due course. It would mean a statutory presumption in the Bill that the guidance addresses the use and proportionality of such fixed penalty notices.
I turn to Amendments 6, 10, 11 and 12, and the very important issue of fly-tipping; I know that noble Lords have been exercised about it. I emphasise that I understand and recognise the problem and believe that waste crime is an issue that confronts us. The Government are committed to taking firm action. We recently published our new waste crime action plan, which is the toughest-ever crackdown on illegal waste and targets the problem at its root. Lords Amendment 6 is unnecessary as, where sufficient evidence is available, local authorities already have the power to prosecute fly-tippers and, on conviction, a cost order can be made by the court so that the landowner’s costs can be recovered from the perpetrator. If available evidence is not sufficient to secure a successful prosecution, it is unclear how addressing this issue through statutory guidance would help in recovering those clean-up costs.
Amendment 11 is also unnecessary as, under Section 34B of the Environmental Protection Act 1990, local councils have the power to seize vehicles if they have reason to believe that the vehicle is being used or is about to be used to commit a fly-tipping offence. Where the police stop and search a vehicle under their PACE powers, on the basis of reasonable suspicion that the vehicle is used for the committing of fly-tipping offences, they can also call on local authority officers who can then impound the vehicle under the Environmental Protection Act 1990, as I have mentioned.
Amendment 12 would place a duty on waste authorities to clean up waste from fly-tipping, including on private land. I have had what I hope were constructive discussions with the noble Viscount, Lord Goschen, but, as I have said to him outside the Chamber, the amendment would place a substantial unfunded burden on local councils and represents a significant departure from current practice. As such, it would infringe also on Commons financial privilege. I trust that, on that basis, the noble Viscount will consider not pursuing the amendment further.
Having said all that, I say to the House that the waste crime action plan sets out a zero-tolerance approach to prevent waste crime. We will look at pursuing criminals responsible and accelerating the clean-up effort. We are committed to working with the insurance industry in particular to explore any barriers to an accessible insurance market that will allow farmers, businesses and landowners to be indemnified against illegal waste dumping on their land.
We are also taking further action. The Government agree with the need for tougher penalties for those convicted of fly-tipping. As drafted, Amendment 10 seeks to amend the wrong legislation. Driving licence endorsements are set out in the Road Traffic Offenders Act 1988. Our Amendment 10A in lieu enables the addition of penalty points to the driving licence of an offender following conviction for fly-tipping offences where that offender was driving a motor vehicle used in or for the purposes of committing the offence. This may ultimately lead to disqualification from driving. I am grateful to the noble Lord, Lord Davies of Gower, for tabling his earlier amendments on this. I hope that he will now look at the amendment that we have tabled and see that, by allowing a range of three to nine points to be added, Amendment 10A would go even further than the amendment that he tabled initially.
Regarding Lords Amendment 15, I understand the concerns raised by noble Lords across the House about the four-year custodial term’s reflection of the elements of culpability in the new offence of possession of a weapon with intent to cause unlawful violence. Again, I am grateful to the noble Lord, Lord Davies of Gower, for tabling his initial amendment. We have reflected on it and tabled Amendment 15A in lieu, which, with cross-government support from my colleagues in the MoJ and the Home Office, raises the maximum term to seven years’ imprisonment from the current four-year custodial term. I hope that noble Lords will accept this as a sensible compromise. It is a movement by the Government which reflects the additional intent element of the new offence.
Finally, I turn to Lords Amendment 333, which would extend the duration of closure notices from 48 hours to seven days and of closure orders from six months to 12 months. Clause 3 already extends the duration of closure notices from 48 hours to 72 hours. I know that the noble Baroness, Lady Buscombe, is not able to be in her place today and the noble Viscount, Lord Goschen, may be speaking to this set of amendments. I say to him, and to the noble Baroness through him, that I acknowledge the sentiment of the amendment. I agree that it is vital that we tackle money laundering, organised crime and other criminal activities. On Report I extended my view on how police should be doing that in the street, and indicated my support for very strong action on these issues.
However, it is important that, if we support the principle of extending the duration of closure orders, we first should consult to avoid any unintended consequences. Stronger enforcement powers should be used only proportionately; therefore, the government amendment in lieu will enable us, following targeted consultation, to extend the maximum duration of closure orders and make different provision for commercial and/or residential properties. I assure the noble Baroness, Lady Buscombe, and the noble Viscount, Lord Goschen, that the consultation will focus not on whether to exercise the regulation power but on how to exercise it.
I realise that this grouping has covered ASB, fly-tipping, unlawful weapons and the closure of premises—it is quite a wide group. Those things have been grouped under the issue of anti-social behaviour, but I hope that noble Lords will see that the Government have moved where we can. There is significant movement with some of the amendments in lieu, and I commend them to the House and await contributions from noble Lords on these matters. I beg to move.
Motion A1 (as an amendment to Motion A)
Lord Clement-Jones
At end insert “, and do propose Amendment 2D as an amendment to Amendment 2B, and Amendment 2E as an amendment to Amendment 2C—
Lord Clement-Jones (LD)
My Lords, while I welcome that the Government have acknowledged the widespread concern over how these powers are being enforced, I must express my profound disappointment that they have chosen to strip out the robust amendment from the Bill which would have banned fining for profit in primary legislation. The Government should have retained that original amendment, which would have implemented a strict statutory ban preventing private companies from receiving financial benefits contingent on the number or value of the fixed penalty notices they issue. The Government have argued that a statutory ban risks weakening enforcement action and prefer to rely on statutory guidance to “ensure proportionality”.
We are not talking about legitimate enforcement; we are talking about a cowboy enforcement economy that preys on the public. Under the Bill, the maximum fine for breaching a public spaces protection order or a community protection order will rise by 400% from £100 to a staggering £500. Without a firm legal prohibition, that drastic increase will only supercharge an industry that profits from punishing our citizens for anodyne actions. As we know from the damning new report from the Campaign for Freedom in Everyday Life, the surge in penalties is driven overwhelmingly by councils that employ private companies, which issue a staggering 75.7% of all penalties, despite making up only 11.2% of the responding councils.
If your local authority employs a private contractor, companies that typically retain 80% to 90% of the fine income, you are 25 times more likely to be fined. Let us take the London Borough of Redbridge as a cautionary tale. In 2022, it issued just 163 penalties; in 2023, after hiring a private company, that number exploded to 3,550. When it stopped employing the company, the number of fines dropped to zero. What are these incentivised wardens fining the public for in these local authority areas? It is not for serious anti-social behaviour; they are issuing penalties for feeding the birds, for swimming, for lacking a dog poo bag and for simply standing in groups or loitering, Disgracefully, this system is also being used to target the most vulnerable, with multiple councils issuing fines for begging and rough sleeping.
By rejecting the original amendment, the Government are protecting a corrupt enforcement industry that uses financial incentives to issue unfair penalties. The Government’s replacement amendment under Motion A is simply too weak: it states only that the Secretary of State may include guidance about the issue of fixed penalty notices by authorised persons. The word “may” is not a guarantee, and general guidance about issuing notices will not stop the aggressive, profit-driven tactics that we are seeing on our streets. That is why we have tabled new amendments under Motion A1 today.
These vital new amendments demand two things. First, they change the permissive “may” to a mandatory “must”, ensuring that the Secretary of State is legally obligated to address this issue in guidance. Secondly, they ensure that this guidance cannot merely offer vague platitudes about proportionality but must explicitly tackle the practice of incentivising the giving out of fixed penalty notices. If the Government insist on regulating this through guidance rather than a direct statutory ban on profit sharing, that guidance must be mandatory, and its prohibition on financial incentives must be explicit. I urge the House to support Motion A1.
Viscount Goschen (Con)
My Lords, I have involvement with two Motions in this group. The first is Motion E, which relates to Amendment 12, which would transfer the responsibility for dealing with fly-tipping from landowners to the local waste authority. When we considered the amendment on Report, there was strong support for the measure from around the House and it was carried.
On Report, the House accepted the strong logic of the argument that dealing with illegal waste is a complex system, with government in all its facets—central, agency and local—holding the levers for the push factor: the landfill tax, approved facilities, disposal, and investigation, policing and prosecution. However, responsibility for dealing with the aftermath of a dump lies with the landowner and, through no fault of their own, they could face a huge bill—in a recent case, £40,000 for clearing up 200 tonnes. That is fundamentally unfair.
This position was supported in a joint letter sent to the Minister for Food Security and Rural Affairs on 19 March from Tim Bonner, the chief executive of the Countryside Alliance; Gavin Lane, president of the Country Land and Business Association; Robyn Munt, vice-president of the National Farmers’ Union; Tim Passmore of the National Rural Crime Network; and John Read, founder of Clean Up Britain. That is a powerful and knowledgeable coalition, united in support of the approach set out in that amendment.
However, I recognise that this is a complex issue, and indeed the Minister has, on behalf of the Government, stressed the financial privilege element, which is an unarguable point. Clearly, my amendment would represent a fundamental change. Therefore, at this stage, and in the context of this Bill, I will not be opposing Motion E. None the less, given the support around the country and from important stakeholder organisations for this potential change, the story does not end at this point.
I certainly support the move that the Government have made on licence points for fly-tipping. I support my noble friend Lord Davies of Gower’s Motion D1 with regard to seizure of vehicles.
The other Motion with which I have an involvement is Motion P, which deals with Amendment 333, originally tabled by my noble friend Lady Buscombe on Report and carried by the House. Unfortunately, my noble friend is unable to attend your Lordships’ House today, so I will address the Motion in her stead.
The amendment, as the Minister has mentioned, is designed to provide a further tool to deal with the epidemic of fake cash-only businesses which have taken over our high streets up and down the land, masquerading as barbershops, nail bars, vape retailers and many other businesses. There are, of course, a great many legitimate, genuine businesses providing the public with these services, and they should be supported, but there are legions that are simply fronts for money laundering, the sale of illicit goods, drug smuggling and immigration crime, among other things.
These are not individual operations but co-ordinated networks—in other words, organised crime. They are operating in plain sight, but, despite that, we have collectively been slow to do anything about that situation. We require a co-ordinated, tough and aggressive multi-agency approach geared towards one objective: the destruction of these gangs. I welcome the initiatives that the Government have brought forward, including Operation Machinize under the auspices of the National Crime Agency, but much larger-scale and tougher action needs to be taken.
My noble friend’s amendment represents a small but important measure to amend the Anti-social Behaviour, Crime and Policing Act 2014 to enable the police to close premises. The amendment itself stresses that the time limits are too short for appropriate action to be taken. My noble friend’s amendment would extend the time limits, for both notices and closure orders, with the latter being extended from three to 12 months. The Bill recognises the importance of getting additional time, and I am pleased that the Minister has recognised the power of the argument from my noble friend and those who supported her and proposed an amendment in lieu to allow regulations to be made to extend the duration period of closure orders.
This is an important move and an important concession, and we welcome it. I particularly welcome the Minister’s assurance and undertaking that the consultation that he described will not be about whether but about how. With that in mind, we will not be opposing that Motion.
Baroness Fox of Buckley (Non-Afl)
My Lords, I support the noble Lord, Lord Clement-Jones. I do not need to repeat his excellent exposition of why Motion A1 is needed, although I stress that his original amendments were better, but we are where we are.
It is important to note that this is not about preventing enforcement at all. We can all agree on the need to clamp down on the problem of anti-social behaviour. In a situation where fixed penalty notices for PSPOs are presently at record levels—they have gone up 32.5% in a couple of years—the public might believe that councils are doing their best to stamp down on anti-social behaviour. However, that would be misleading and misinformation, because, where we have private companies, they are paid a commission of that penalty income, which can be up to 80% to 90% of the fine paid. That gives them a direct incentive to issue as many penalties as possible. Motion A1 tries to ensure that we protect the public from unscrupulous incentivised enforcement agencies, which I think are corrupt.
The main thing—if I can appeal to the Government—is that this does not actually tackle anti-social behaviour at all. If you live in an area with a private company, you might think that because everyone is being fined then the council are doing something about anti-social behaviour, but that is not true. I stress that those of us who support Motion A1 want to tackle anti-social behaviour and want a fair and just enforcement regime, but do not think that the private companies employed by some councils are tackling anti-social behaviour or delivering justice or fairness. I hope that the Government will reconsider.
Earl Russell (LD)
My Lords, I will respond to the amendments in this group on waste crime and fly-tipping. As we know, nearly one-fifth of all our waste ends up in the hands of criminals. The rising number of mega tips and the speed at which they are now appearing show the increasingly sophisticated nature of criminal networks and that they are operating with impunity, making vast profits at little risk. That causes direct costs to our economy of more than £1 billion annually, with devastating effects on the environment, communities and individuals. Since our last debate, as the Minister mentioned, the Government have published their 10-point plan on waste crime. More must be done, but I record my thanks to the Minister and the Government, because this is a very welcome step forward.
We support the amendments before us, but none alone would shift the dial on this problem. Amendment 6, from the noble Lord, Lord Davies of Gower, rightly seeks to make the polluter, not the landowner or the community, liable for clean-up costs. The Commons rejected this on the grounds that sufficient powers already exist. However, with 1.26 million fly-tipping incidents recorded in 2024-25, an increase of 9%, any conversation with any landowner or farmer in this country would show that the powers we have now are not adequate. The “polluter pays” principle remains unmet and clean-up costs can reach tens of thousands of pounds, which is simply bankrupting many individuals. In a similar vein, Amendment 12 would require waste authorities to collect fly-tipped waste and recover costs from offenders. The Commons dismissed this as a public cost.
In truth, these amendments would address only part of a much larger system. Real solutions require systemic reform, prevention, adequate local authority funding and compensation for local authorities where they do clear sites. Without turning off the supply tap and properly resourcing councils, responsibility is merely passed down the chain. Mentions of local authority compensation in the 10-point plan are encouraging, although the details remain missing. Treasury receipts from landfill tax need urgently to be allocated to the clean-up of sites.
Amendment 10 proposes penalty points on licences for fly-tipping convictions. Although that was rejected, the two government amendments in lieu are welcome. Amendment 11 would add fly-tipping to the list of offences allowing vehicle seizures, which is a proportionate step since vehicles are the primary means of committing these crimes. My party supported this measure in the other place and, if it is pressed to a Division, we will support it today. I would, however, prefer roadworthy seized vehicles to be reused or sold rather than crushed.
In conclusion, the 10-point plan makes some real progress, but this Bill largely remains a missed opportunity to tackle waste crime decisively. Serious organised waste crime should be treated as serious organised crime. The Environment Agency lacks specialist skills and technology to counter these networks effectively. The Government’s plans to strengthen its powers is welcome, but questions remain. The plan says:
“On enforcement, we are committing further funding. We are exploring giving the Environment Agency police-style powers”.
The Bill could have given the Environment Agency the police-style powers that it so desperately needs to improve enforcement and make it more effective and speedy. The truth is that those powers have not been given.
Lord Davies of Gower (Con)
My Lords, Motions C, D and E relate to the several amendments on fly-tipping the Conservatives tabled on Report. I thank the Government for their amendment on points on licences for fly-tipping offences. Although our previous arguments in support of this policy were opposed by the Government, I welcome their Amendments 10A and 10B, even if it has taken us some time to get to this point. I also thank my noble friend Lord Goschen for his Amendment 12. We on these Benches wholly agree with the principle that it should be the responsibility of and the burden on the offenders who fly-tip to clean up the waste they deposit.
I was disappointed to see the Government tabling Amendment D opposing the amendment that provides police the powers to seize vehicles involved in fly-tipping offences. The noble Lord, Lord Hogan-Howe, pointed out on Report that this is a business. That is why we need to disrupt the business model by confiscating the means to conduct this criminality. I simply cannot understand why the Government remain reluctant to take firm and decisive action on fly-tipping. They were reluctant to impose penalty points for the offence until they were defeated on Report. It is deeply disappointing that it is their intention to resist my amendment which would put into statute powers for the police to seize vehicles used for fly-tipping. If the Government oppose my Motion D1, I will test the opinion of the House.
On the issue of knife crime, Amendment 15 increased the maximum term of imprisonment for the new offence of possession of a bladed article with intent to use unlawful violence from four to 10 years. As I explained in Committee and on Report, the offence of simple possession of a bladed article under the Criminal Justice Act 1988 carries four years, so it did not make sense to create a new, more serious offence of possessing an article with the intent to do harm to another that carried the same maximum sentence. For both offences to carry the same maximum sentence would be entirely inconsistent with how the criminal law has always approached the issue of intent. That is why we sought, successfully, to amend the maximum term of imprisonment on Report. However, since then the Government have tabled an amendment in lieu that would increase the maximum term of imprisonment for the offence of possessing an article with the intent to harm another to seven years. I thank the Minister for recognising the arguments that the Conservatives made both in Committee and on Report.
I thank my noble friend Lady Buscombe for tabling her amendment regarding closure notices on Report. Recent investigations have exposed businesses that plague our high streets, selling counterfeit and illegal goods as well as unregulated products. In doing so, she has raised important issues which have clearly resonated with your Lordships. It is therefore welcome to see that, despite opposing my noble friend’s amendment on Report, the Government now recognise the importance of this issue, and their amendment in lieu would give the Secretary of State powers to change the maximum duration of closure orders, as well as the maximum period for which such an order may be extended. They also recognise that different provisions may be required for different circumstances, such as whether a building is commercial or residential, so I thank the Government for their Amendment 333A in lieu and I look forward to when the Secretary of State uses the powers conferred by this amendment to lay regulations on closure notices.
As previously stated, if the Government oppose my Motion D1 concerning seizure of vehicles involved in fly-tipping, I will test the opinion of the House.
Lord Hanson of Flint (Lab)
I am grateful for the contributions that have been made in response to this group of amendments, both those in lieu from the Government and the amendments tabled by Members here today. I stress that the Government agree with the sentiments behind the amendments in this group. On Amendments 2D and 2E, tabled by the noble Lord, Lord Clement-Jones, and supported by the noble Baroness, Lady Fox of Buckley, I assure the noble Lord that while the amendments say that the statutory guidance “may” include guidance about the issue of fixed penalty notices, it is our firm intention to issue such guidance. Indeed, I will be happy to share a copy of the guidance in draft form with the noble Lord at an appropriate time when it is ready.
The issue of fly-tipping has permeated through the discussions we have had in the last half an hour or so and I understand the strength of feeling on all sides of your Lordships’ House. That is why we have tabled the amendments in lieu to introduce penalty points for fly-tippers and I emphasise again to noble Lords that, in relation to Amendments 6 to 11, local authorities already have the power to seize vehicles used for fly-tipping, and courts can already impose cost orders on those convicted of fly-tipping. I should add, if I may, that Defra, with the support of the Home Office, is going to explore how the Environment Agency’s powers to address waste crime can be bolstered. We are going to consider how additional measures within the Police and Criminal Evidence Act, the Proceeds of Crime Act and other relevant legislation could achieve this. This work will ensure that the Environment Agency has much stronger powers and tools to bring criminals to justice, intervene earlier and disrupt criminal finances undermining the waste system.
Again, I am sympathetic to Amendment 12 in the name of the noble Viscount, Lord Goschen, and I understand and welcome the comments from the noble Earl, Lord Russell, in relation to the Waste Crime Action Plan. We are looking at how we improve enforcement around fly-tipping. However, as I have mentioned and as I think the noble Viscount acknowledged, the amendment breached Commons financial privilege, and I thank him for accepting those arguments and not pursuing the amendments further.
I am also grateful to the noble Lord, Lord Davies, for accepting Amendment 15A in lieu.
On Amendment 333, it is right that the Government fully consult on any changes to closure powers before making significant changes, and our amendment in lieu does that. Again, I thank the noble Viscount and the noble Baroness, Lady Buscombe, for their pressure in raising these issues, because it is important. I confirm what I have said to the noble Viscount already, which is that the issue is not how but when we strengthen those closure powers.
I hope I have been able to offer reassurances to the noble Lord, Lord Clement-Jones, on his amendments and to the noble Lord, Lord Davies, on his. I suspect that I may not have done to the extent that they would wish, but I can only try. We have moved significantly on some of the areas in this group. I welcome the support for the changes that we have made, but I do hope that, in moving Motion A, noble Lords will listen to my wise counsel and not press their amendments.
Lord Clement-Jones (LD)
My Lords, during the passage of this Bill, I have greatly admired the Minister’s geniality and stamina, but, sadly, this is not always matched by his delivery. I am afraid that the Government’s current approach really does not cut the mustard, and a number of mixed metaphors occur in the circumstances. The Minister said that they have a “firm intention”, but that is something of a pig in a poke and I will be asking the Government, as we proceed, to show rather more leg in this legislation, so with apologies for the metaphors, I would like to test the opinion of the House.
Lord Hanson of Flint
Moved by
That this House do not insist on its Amendment 6, to which the Commons have disagreed for their Reason 6A.
Lord Hanson of Flint
Moved by
That this House do not insist on its Amendment 10 and do agree with the Commons in their Amendments 10A and 10B in lieu.
“An offence under section 33 of the Environmental Protection Act 1990 (unauthorised disposal of waste) committed by the driver of a motor vehicle used in or for the purposes of the commission of the offence. | Discretionary | Obligatory | 3-9” |
Lord Hanson of Flint
Moved by
That this House do not insist on its Amendment 11, to which the Commons have disagreed for their Reason 11A.
Lord Davies of Gower
Moved by
leave out from “House” to end and insert “do insist on its Amendment 11.”
Lord Davies of Gower (Con)
My Lords, fly-tipping is a scourge on our society. We on these Benches recognise it, the public recognises it and landowners recognise it. We consider that the addition of vehicle seizure is an important one, so I beg to move Motion D1 and test the opinion of the House.
Lord Hanson of Flint
That this House do not insist on its Amendment 12, to which the Commons have disagreed for their Reason 12A.
Lord Hanson of Flint (Lab)
My Lords, I have already spoken to Motions E and F. With the leave of the House, I beg to move.
Lord Hanson of Flint
That this House do not insist on its Amendment 15 and do agree with the Commons in their Amendment 15A in lieu.
Baroness Levitt
That this House do not insist on its Amendments 256 and 257 and do agree with the Commons in their Amendments 257A and 257B in lieu.
“Taking down intimate image content
(1) The Online Safety Act 2023 is amended as follows.
(2) In section 10 (regulated user-to-user services: safety duties about illegal content) after subsection (3) insert—
“(3A) A duty to operate a service using proportionate systems and processes designed to take down—
(a) content in relation to which an intimate image content report is made to the provider (see section 20A(2)), and
(b) any other content identified by the provider as the same, or substantially the same, as that content, as soon as reasonably practicable, and no later than 48 hours, after the provider receives the report (unless subsection (3B) applies).
(3B) This subsection applies if the provider considers that—
(a) the content is not intimate image content, or
(b) the person making the report is not—
(i) the subject of the content, or
(ii) a person acting on that person’s behalf.”
(3) After section 20 (duty about content reporting) insert—
“20A Reporting of intimate image content
(1) The duty in section 20(2) includes a duty to operate a service using systems and processes that allow users and affected persons to easily make an intimate image content report to the provider.
(2) An “intimate image content report” is a report which—
(a) declares that content present on the service is intimate image content,
(b) declares that the report is made by—
(i) the subject of the content, or
(ii) a person acting on that person’s behalf,
(c) declares that the report—
(i) is made in good faith, and
(ii) to the best of the knowledge and belief of the person making the report, is true,
(d) provides sufficient information about the content for the provider to identify it,
(e) provides contact details for the person making the report, and
(f) complies with any other requirements specified in regulations made by the Secretary of State.
(3) The Secretary of State may by regulations make provision about how the requirements in subsection (2)(a) to (e) are to be met.”
(4) In section 21 (duties about complaints procedures) after subsection (2) insert—
“(2A) The duty in subsection (2) includes a duty to operate an expedited complaints procedure in relation to complaints within subsection (4)(a), (b)(i) or (b)(ii) that—
(a) are made by users or affected persons who have made an intimate image content report (see section 20A(2)), and
(b) are about the content to which the report relates.”
(5) In section 27 (regulated search services: safety duties about illegal content) after subsection (3) insert—
“(3A) A duty to operate a service using proportionate systems and processes designed to ensure that individuals are no longer able to encounter—
(a) search content in relation to which an intimate image content report is made to the provider (see section 31A(2)), and
(b) any other search content identified by the provider as the same, or substantially the same, as that content, as soon as reasonably practicable, and no later than 48 hours, after the provider receives the report (unless subsection (3B) applies).
(3B) This subsection applies if the provider considers that—
(a) the search content is not intimate image content, or
(b) the person making the report is not—
(i) the subject of the content, or
(ii) a person acting on that person’s behalf.”
(6) After section 31 (duty about content reporting) insert—
“31A Reporting of intimate image content
(1) The duty in section 31(2) includes a duty to operate a service using systems and processes that allow users and affected persons to easily make an intimate image content report to the provider.
(2) An “intimate image content report” is a report which—
(a) declares that search content is intimate image content,
(b) declares that the report is made by—
(i) the subject of the content, or
(ii) a person acting on that person’s behalf,
(c) declares that the report—
(i) is made in good faith, and
(ii) to the best of the knowledge and belief of the person making the report, is true,
(d) provides sufficient information about the search content for the provider to identify it,
(e) provides contact details for the person making the report, and
(f) complies with any other requirements specified in regulations made by the Secretary of State.
(3) The Secretary of State may by regulations make provision about how the requirements in subsection (2)(a) to (e) are to be met.”
(7) In section 32 (duties about complaints procedures) after subsection (2) insert—
“(2A) The duty in subsection (2) includes a duty to operate an expedited complaints procedure in relation to complaints within subsection (4)(a), (b)(i) or (b)(ii) that—
(a) are made by users or affected persons who have made an intimate image content report (see section 31A(2)), and
(b) are about the search content to which the report relates.”
(8) In section 59 (meaning of “illegal content” etc) after subsection (10) insert—
“(10A) “Intimate image content” means content that amounts to an offence under section 66B(1), (2) or (3) of the Sexual Offences Act 2003 (sharing intimate image of a person without consent).”
(9) In section 133 (confirmation decisions: requirements to take steps)—
(a) in subsection (4) after paragraph (c) insert—
“(ca) specify which of those requirements (if any) have been designated as intimate image content requirements (see subsections (7A) and (7B)),”;
(b) after subsection (7) insert—
“(7A) If the condition in subsection (7B) is met in relation to a requirement imposed by a confirmation decision which is of a kind described in subsection (1), OFCOM must designate the requirement as an “intimate image content requirement” for the purposes of section
138(3A) (offence of failure to comply with confirmation decision).
(7B) The condition referred to in subsection (7A) is that the requirement is imposed (whether or not exclusively) in relation to—
(a) a failure to comply with a provision listed in column 1 of the table, which
(b) where there is an entry for the provision in column 2 of the table, is in respect of a matter listed in column 2.
Provision | Failure in respect of |
Section 10(2)(a) | (1) Intimate image content (2) Priority illegal content which includes intimate image content |
Section 10(2)(b) | (1) An offence under section 66B of the Sexual Offences Act 2003 (2) Priority offences which include an offence under that section |
Section 10(3)(a) Section 10(3)(a) | (1) Intimate image content (2) Priority illegal content which includes intimate image content |
Section 10(3)(b) | (1) Intimate image content (2) Illegal content which includes intimate image content |
Section 10(3A) | |
Section 27(3)(a) | (1) Intimate image content (2) Priority illegal content which includes intimate image content |
Section 27(3)(b) | (1) Intimate image content (2) Illegal content which includes intimate image content |
Section 27(3A)”; |
(10) In section 138 (offence of failing to comply with requirements imposed by confirmation decision) after subsection (3) insert—
“(3A) A person to whom a confirmation decision is given commits an offence if, without reasonable excuse, the person fails to comply with an intimate image content requirement imposed by the decision (see section 133(7A) and (7B)).””
“Taking down intimate image content: consequential amendments
(1) The Online Safety Act 2023 is amended as follows.
(2) In section 10 (regulated user-to-user services: safety duties about illegal content)—
(a) in subsection (4) for “and (3)” substitute “to (3A)”;
(b) in subsection (5)—
(i) the words from “each paragraph” to the end become paragraph (a);
(ii) at the end of that paragraph insert “, and
(b) subsection (3A).”;
(c) in subsection (7) for “subsection (2) or (3)” substitute “subsections (2) to (3A)”.
(3) In section 23(5) (record-keeping and review duties) for “or (3)”, in the first place it occurs, substitute “, (3) or (3A)”.
(4) In section 27 (regulated search services: safety duties about illegal content)—
(a) in subsection (4) for “and (3)” substitute “to (3A)”;
(b) in subsection (7) for “subsection (2) or (3)” substitute “subsections (2) to (3A)”.
(5) In section 34(5) (record-keeping and review duties), for “or (3)”, in the first place it occurs, substitute “, (3) or (3A)”.
(6) In section 59(14) (meaning of “illegal content” etc) for “and “priority illegal content”” substitute “, “priority illegal content” and “intimate image content””.
(7) In section 71(2)(a)(i) (duty not to take down content except in accordance with terms of service: exceptions) for “or (3)” substitute “, (3) or (3A)”.
(8) In section 136(5) (confirmation decisions: proactive technology)—
(a) in paragraph (a) for “or (3)” substitute “, (3) or (3A)”; (b) in paragraph (c) for “or (3)” substitute “, (3) or (3A)”.
(9) In section 237 (index of defined terms) at the appropriate place insert—
“intimate image content (in Part 3) section 59”.
(10) In Schedule 4 (codes of practice)—
(a) in paragraph 9(1) for “or (3)” substitute “, (3) or (3A)”;
(b) in paragraph 9(3) for “or (3)” substitute “, (3) or (3A)”;
(c) in paragraph 13(3)(a) for “or (3)” substitute “, (3) or (3A)”;
(d) in paragraph 13(3)(c) for “or (3)” substitute “, (3) or (3A)”.”
The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)
My Lords, in moving Motion G, I will also speak to Motions H, J, K, L, M, W and Y.
I will start with the collection of intimate image abuse-related amendments in lieu. These all flow from the amendments tabled by the noble Baroness, Lady Owen of Alderley Edge, on Report. I say once more, with feeling, that I thank the noble Baroness for engaging with us over the past few weeks, which she has done extensively. It is in the best traditions of your Lordships’ House. We have worked together to ensure—I hope—that the Government have taken the right direction with these amendments across the piece.
I turn to the take-down powers. Amendments 257A and 257B in Motion G build on the Government’s existing provisions. They do that by making failure to comply with an Ofcom enforcement decision relating to the new take-down duties a criminal offence. That means that senior executives of the service could be personally criminally liable for the failure. Alongside that enforcement approach, the Government are also strengthening safeguards against malicious reporting. We will bring forward regulations that will enable Ofcom to scrutinise both the speed of intimate image removals and how clearly and effectively platforms enable users to report such content. We are determined that victims of non-consensual intimate image abuse should see swift action, clear routes for redress and transparency from platforms.
Therefore, in addition to these amendments, the Government are working with Ofcom to create a clear route for reporting complaints regarding compliance with the NCII duty, signposting to specialist organisations. We will also use existing powers under the Online Safety Act to strengthen transparency, enabling Ofcom to require services to report on and publish their average NCII take-down times. I reiterate my thanks to the noble Baroness, Lady Owen, for her continued advocacy on this important topic.
I turn to deletion orders and Motion H. The Government recognise the serious harm caused by perpetrators retaining copies of intimate images. We have listened to the will of the House on Report, which is why we have brought forward a new deletion order that will be available on conviction for a broader range of offences. This new order can be made for all intimate image abuse offences, including breastfeeding voyeurism recording and the new sharing of semen-defaced images offences, which I will refer to throughout my speech as “intimate image-related offences”.
It will enable courts to order the deletion and destruction of all copies of a relevant image. It does that by requiring the court to give reasons if it declines to make a deletion order for images related to the offence. This mirrors the criminal law in relation to compensation orders. It strikes the right balance between protecting victims and preserving judicial discretion in appropriate cases. Importantly, it will enable courts to order the deletion and destruction of all copies related to a specified offence in the offender’s possession or control, as well as any other relevant images of the same victim. Breaching such an order will be a separate criminal offence, itself carrying a maximum penalty of five years’ imprisonment.
On hashing and the non-consensual intimate image register, the Government will give statutory backing to a register of non-consensual intimate images. Amendments 260A to 260D in Motion J enable the Government to designate a trusted flagger—which will most likely be the Revenge Porn Helpline—and, following a scoping exercise, to make further provisions by regulations about the operation of a statutory register. That includes provisions for the Secretary of State to impose requirements on providers to share hashes and any other information deemed necessary with the register. As Lords Amendments 260A to 260D recognise, proceeding by regulations will enable us properly to evaluate the requirements necessary to ensure a register operates as effectively as possible.
I turn to the question of pornography. I again thank the noble Baroness, Lady Bertin, for the time she has taken over the past few weeks to meet many Ministers, who really are grateful to her for the time she has spent with us, making sure that we get this right. I stress to your Lordships that the changes to which I now turn are just the start, and the Government mean it when we say that we look forward to working with the noble Baroness even more in future.
I will speak briefly to the parity sprint. This is a key piece of ongoing work that will build on the provisions in the Bill, and the discussions have already started. This work will identify the best way to fix the gap between the regulation of pornography online and offline. It will address content that is not caught by our proposed offences that would otherwise be illegal offline. This could include, for example, pornography where there is a suggestion that a person is under 18, a relationship is portrayed as abusive, or there is a clear exploitative power imbalance or breach of trust, including some examples of depictions of step-incest between adults, or a teacher and a student. At the end of this work, the Government are fully committed to implementation. If regulators need to be assigned, this will happen. If legislation is needed, this will happen. This Government are serious about this.
In a similar vein, on the verification of age and consent, we agree with the sentiment that underlies the amendment: non-consensual intimate images and child sexual abuse have no place online, and the tech platforms need to do more to prevent this type of illegal content. Having said this, further work is needed to identify the most effective approach. For this reason, the Government’s amendments in lieu, Amendments 264A to 264F in Motion L, provide for a further statutory sprint to test which mechanisms will be most effective for tackling this kind of content. It will also place a duty on the Secretary of State to report to Parliament within 12 months of the Bill receiving Royal Assent on the outcome of this work and will provide a power to make regulations to give effect to its outcome.
Given the existing criminal and regulatory legal frameworks, we need carefully to consider the gaps and how best they can be addressed. Upon completion of the review, we have the option of putting in place regulations to impose new duties on providers of internet services relating to verification of age and consent. The power would allow the appointment of a regulator to oversee these duties.
With regard to adults role-playing as children in pornography, we have listened to the concerns that were raised. We must protect the legislative regime that protects actual children from harm, which is why we cannot support Lords Amendment 265. However, we absolutely agree with the noble Baroness, Lady Bertin, that content that mimics child sexual abuse must be tackled. That is why we have brought forward amendments in lieu, Amendments 265A to 265H in Motion M, which will criminalise the possession and publication of pornographic images portraying sexual activity between persons where one person is or is pretending to be under 16. This will be a priority offence under the Online Safety Act. Our intention with these amendments is clearly to signal that content which mimics, and thus risks normalising, child sexual abuse is totally unacceptable and should not be available online.
I need to make clear what the provision criminalises. It includes pornographic depictions of any sexual activity where one party is pretending to be under 16. It is intentionally wide and will capture harmful content that we know exists. I apologise for being graphic here, but there is no way of avoiding it. I can see the noble Lord, Lord Pannick, laughing as I say this—I am here again talking about rather graphic acts. This provision will capture images such as an actor role-playing as an underage girl, where, for example, her underwear has been moved aside, or male genitals are in shot.
As I have just said, this offence is just the start. Content that is illegal offline but not caught by this offence will be addressed through the Government’s work on parity.
Similarly, in relation to pornography depicting incest, we have listened to the concerns about the extent to which the Government’s Lords Amendment 263 should cover other troubling relationships, such as sex between step-relations. We completely agree with the need to curtail the depiction of step-incest pornography in cases where it portrays conduct that is illegal in the real world. To that extent, the Government’s amendments in lieu, Amendments 263A to 263G in Motion K, will restore and extend the new offence of possession and publication of incest pornography. They will list the relevant family relationships and expand this to include step-parents and children, step-siblings and foster parents, and children where one of the persons is or is pretending to be under the age of 18. Where there are grey areas, such as step-relationships over 18, that show a clear power imbalance and would be illegal offline, this will be addressed through the parity sprint, about which I have already spoken.
Through Lords Amendments 255 and 395, the Government are criminalising the making, adapting and supplying of the nudification tools and are bringing chatbots into the scope of the Online Safety Act. This means that the requirements of the Online Safety Act will kick in. Social media services will be required to take down content that supplies nudification tools, and search engines will have to reduce the visibility of search results linked to these tools. When chatbots come into the scope of the Online Safety Act, they will also have to ensure that illegal nudification tools and images cannot be made, supplied or appear on those services. Taken together, these measures will deliver an effective ban on nudification tools.
Given this, we do not believe that a separate possession offence, as provided for in Lords Amendment 505, would make a meaningful difference, not least as many such tools are not possessed in the technical legal sense, but rather are accessed online. For this reason, we are seeking its removal via Motion Y, but we are very grateful to the noble Baroness, Lady Bertin, for engaging with us on this and for supporting the approach that we have discussed at length with her and finally fixed upon.
Baroness Owen of Alderley Edge
At end insert “, and do propose Amendments 257C, 257D, 257E and 257F as amendments to Amendment 257A.
Baroness Owen of Alderley Edge (Con)
My Lords, I will also speak to Motions H and J. In doing so, I declare an interest, as having received pro bono legal advice on intimate image abuse from Mishcon de Reya.
Amendments 257C and 257E in Motion G1 seek to ensure that internet services record, collect and publish data on the proportion of content they remove in 48 hours. I am aware that Ofcom has transparency powers under Schedule 8 to the Online Safety Act to gather information from internet services and that these regulations can be developed further. I am keen that the Government address any remaining gaps to ensure that all internet services that Ofcom defines as being high-risk or medium-risk of sharing intimate image content, as Ofcom will outline in its hashing measures, are required to publicly report their takedown times.
I was disappointed by the Government’s removal of the fine per day per account of £39,000 that noble Lords so overwhelmingly voted to support. While I acknowledge that Ofcom has the power to issue daily fines, I still believe that we must be more agile in our approach to ensure that no victim is left behind. I am keen to return to this issue in future legislation, when we have further information on how regularly Ofcom is issuing daily fines in response to this.
I am very grateful for the vast movement the Government have made by introducing their amendments under Motions G, H and J in response to my amendments at Report and Third Reading. We have made huge progress on the deletion of content after conviction and on the hashing of intimate content to prevent re-upload. I very much look forward to working with the Government and the charities as the centralised hash registry is developed.
I do not intend to test my Motion today. I am grateful to the Government, particularly to the Minister, and to the noble Lords across this House who have worked with me so constructively on these issues. I also wish to thank the survivors who have worked alongside me, Professor Clare McGlynn KC, and Sophie Mortimer from the Revenge Porn Helpline, for their steadfast support. We have made huge strides towards protecting victims from this appalling form of abuse. I beg to move.
Baroness Bertin (Con)
Very briefly, I welcome the Government’s Amendments 263A to 263G, 264A to 264F, and 265A to 265C. I put on record how grateful I am to the Government for the constructive conversations that we have had to get to this place. I also put on record my view that these amendments mark the beginning of a new era in the regulation of harmful pornographic content in this country.
I welcome the Government’s commitment to act swiftly on the outcome of this work, particularly the online/offline parity sprint, and I assure Ministers that we will hold them to account on that commitment. In reaching this point, I also echo my noble friend Lady Owen’s point about thanking the cross-party and team effort there has been to get to this point. In particular, I thank my team, Gemma Kelly in particular, and Clare McGlynn, who have been at the helm of these reforms and pushing this work through for a lot longer than I have.
I quickly turn to Amendments 264A and 264F, which address duties on pornographic providers to ensure age and consent verification, and enable performers to withdraw consent. This process must not be about revisiting whether action is needed. The case for action has been made conclusively and the focus must now be on effective delivery, enforcement and regulation. Although I am wary of “review”—allergic to it, even—I accept that a tightly timed statutory process with a clear duty to return to Parliament and the power to act strikes the right balance between urgency and rigour. We know that this industry is rife with coercion and trafficking, and falling short here would be a grave failure to victims.
Amendments 265A and 265C address adults role-playing children in pornography. The purpose of this offence is clear: to ensure that material which simulates, normalises or encourages an interest in child sexual abuse is illegal to host online. This is not theoretical harm; this content acts as a gateway to a very real and dangerous interest, and it is right that the law intervenes decisively. I am very grateful that the Government are moving on that.
Very briefly, though, I offer reassurance to communities that have raised concerns. This offence is carefully and deliberately drawn—I thank officials for doing that—with clear exclusions for genuinely fanciful depictions involving unambiguously adult participants. This is not about criminalising benign fantasy but about drawing a firm line at the point where content begins to replicate the dynamics, power imbalance and harms of child sexual abuse.
I also welcome Amendments 263A to 263G, which extend offences to include step-incest and foster relationship pornography involving children. For far too long, pornography has been allowed to normalise and incite sexual abuse within the household, and these amendments begin to close a deeply troubling gap in the law. However, I appreciate the Minister saying that this is only the beginning.
On nudification tools, criminalising their creation and supply and bringing them within the scope of the Online Safety Act is a proportionate and necessary step, but we must emphasise that platforms and search engines must not be allowed to direct users or to profit from this software. We saw just today reports from Bloomberg that Apple and Google have profited heavily from nudifying apps, which only underlies the need for urgent action and how specific it must be to stop search engines allowing these kind of apps to remain possible to find.
This work matters far beyond this Chamber. Harmful pornography is a global problem requiring a global response. Regulation and law change are not an end in themselves but, used properly, can raise awareness, disrupt profit and accelerate change. These amendments are not the final word but they are a decisive and long overdue step forward. I welcome them.
Baroness Thornton (Lab)
My Lords, I congratulate my noble friend the Minister on the work that she has done on the issues that have been raised in the House about pornography and online harm. I add my thanks to my noble friend and her honourable friend the Minister in the other place for the very competent amendment they have made in Motion W to the pardons on the decriminalisation of abortion.
Lord Pannick (CB)
My Lords, thanks should certainly be paid to the Minister for all her hard work in this area, but the House will also wish to thank the noble Baronesses, Lady Bertin and Lady Owen, for their hard work over many years, their persistence, their judgment and their success in a very difficult area of law and society. I suggest that although this House is very often criticised—sometimes with justification—the debates on this issue and the way we have moved the law forward with the very great assistance of the Government show this House working at its very best.
Lord Clement-Jones (LD)
My Lords, both noble Baronesses have spoken extremely eloquently today. It has been a privilege, from these Benches, to be part of the cross-party coalition for both their campaigns. I pay tribute, as others have, to both of them for their persistence throughout the passage of the Bill.
In particular, these Benches have strongly supported the comprehensive framework introduced by the noble Baroness, Lady Owen of Alderley Edge, who has tirelessly campaigned on non-consensual intimate images, and we welcome—this is a tribute to the noble Baroness, Lady Levitt—the Government’s concessions today under Motion G, in particular the move to place the 48-hour take-down requirement firmly into the Bill. We also welcome the Government’s decision in Motion J to include a statutory non-consensual intimate image register. As the South West Grid for Learning and the Revenge Porn Helpline rightly stated this week, embedding this register in law is a “transformative move” and a “hugely important step forward” in protecting victims at scale. Again, I congratulate the noble Baroness on securing this.
However, although we celebrate this progress, the Government’s amendments will continue to require scrutiny in two crucial areas. First, on the new statutory NCII register, the devil will be in the detail. As the SWGfL has highlighted, key questions remain around how this register will be operated in practice and, most importantly, enforced. Secondly, the Government’s amendments on image deletion orders under Motion H still fall somewhat short. During the debate in the other place on Tuesday, a Government Back-Bencher praised these amendments, believing that they would ensure that
“courts are properly mandated to destroy those intimate images”.—[Official Report, Commons, 14/4/26; col. 740.]
However, the Government’s amendment explicitly uses “may”, leaving deletion entirely at the judge’s discretion. Nevertheless, I believe that the noble Baroness has achieved a huge amount through this process. We on these Benches entirely understand why she may choose not to press Motion G1, and she should take the greatest possible pride in what has been achieved so far.
On the second half of this group, on the regulation of online pornography, I likewise pay tribute to the noble Baroness, Lady Bertin, who has worked tirelessly to expose the appalling loopholes that currently allow commercial pornography platforms to operate with light-touch self-regulation. The Government’s amendments in lieu under Motions K and L may be said to fall short of the robust statutory safeguards that this House originally agreed on. On age and consent verification, the House voted to make it a requirement for platforms to verify the age and permission of everyone featured on their sites. The Government have taken this out, replacing an immediate duty with a
“duty to review and report”
to Parliament within 12 months, followed by unspecified regulating powers. I very much accept that the noble Baroness is somewhat wary, but I accept her view on the way forward.
Furthermore, the Government’s amendments dilute the ban on step-incest pornography. They have caveated the offence so that it applies only to depictions of step-incest where one of the persons is portrayed to be under the age of 18. This misses the point of establishing parity with the offline Sexual Offences Act, where sexual relations between stepparents and stepchildren are illegal regardless of age due to the inherent power imbalances.
The Government have also failed to match the ambition of Amendment 505, which brings us to Motion Y. In the other place on Tuesday, the Minister claimed that Amendment 505 was unnecessary. She argued that the Government’s new offence of “supplying” nudification tools, combined with future powers to regulate chatbots via Ofcom, is sufficient, but a promise to eventually introduce secondary legislation to tell search engines to reduce the visibility of these apps does nothing to stop individuals possessing, downloading and using these tools to abuse women right now.
Great weight is being placed on the “sprint” delivery plan within six months of Royal Assent to achieve greater parity between the regulation of online and offline pornography. We very much hope that this will bear fruit in due course. On the mimicking of children, as the noble Baroness has indicated, this has been quite a battle with government. She has settled on the criminalisation of the depiction of children under 16. I know that she would have preferred that it was 18, but the Government have claimed that widening it is operationally difficult and would put too much pressure on law enforcement. However, they have promised that they will commit, on the Floor of the House, to address this in the parity work via regulation but not the criminal law.
Lord Davies of Gower (Con)
My Lords, I thank my noble friends Lady Owen and Lady Bertin, on behalf of all noble Lords on the Conservative Benches, for their sustained efforts on these important issues. Their work and amendments will surely help to protect women and girls, whether through legislation on the taking down of intimate images or greater protection for age verification in pornographic content. I also thank the Government, particularly the Minister, for their continued engagement on these topics. These Motions are evidence of what this Chamber can achieve through collaborative and productive dialogue.
Baroness Levitt (Lab)
My Lords, I thank all noble Lords for their contributions not just today but during the passage of this Bill, and for the thoughtful and constructive way in which everybody has engaged with these issues.
I shall be brief and address only one or two of the points that were raised. The first is in relation to Motion G1, tabled by the noble Baroness, Lady Owen. Motion G strengthens accountability where platforms fail to comply with their duties to deal with non-consensual intimate images. Regarding Motion G1, we recognise the noble Baroness’s concern and want transparency beyond just the biggest platforms. That is why every regulated user-to-user service must be clear with users about how it is meeting the 48-hour takedown duty, while Ofcom can require detailed reporting where it will make the biggest difference. Through Schedule 8, the Online Safety Act allows Ofcom to require detailed information about how providers identify, deal with and take down illegal content. We will amend this through regulations to make it clear that these requirements cover compliance with the new NCII takedown duty, including average takedown times.
Turning to the verification of age, again the Government recognise the concerns raised by the noble Baroness, Lady Bertin. We are not intentionally delaying these important changes for the sake of it. I think that the noble Baroness recognises that we all agree that this issue is important, but we cannot shy away from the complex legal and practical issues that it presents. These considerations must be made alongside and flowing from the existing six-month review into parity, closing the gap between regulation of online and offline pornography. For this reason, the 12 months is needed to ensure that we get it right. We are grateful to the noble Baroness for supporting this approach.
On the issue of adults role-playing as children and the question of step-incest, in relation to the point made by the noble Lord, Lord Clement-Jones, as to the differential in age, it is to ensure that the online offences mirror the underlying offline criminal offences so that there is parity between the two. I should stress that for both these offences, adult role-playing and the extension to step-incest offences, this is a first step. The provisions in this Bill create significant changes already in the criminal law and the parity work to which we have all referred will build on this to address the grey areas where it is illegal offline but difficult to address online via the criminal law.
It remains for me only to thank once again the two noble Baronesses, Lady Bertin and Lady Owen. I genuinely look forward to continuing to work with them in future.
Baroness Owen of Alderley Edge (Con)
I thank the Minister for her response and am assured by it. I beg leave to withdraw Motion G1.
Baroness Levitt
That this House do not insist on its Amendment 258 and do agree with the Commons in their Amendment 258A in lieu.
“Image deletion orders
(1) The Sentencing Code is amended as follows.
(2) In Part 7 (financial orders and orders relating to property), after Chapter 4 insert—
“CHAPTER 4A
IMAGE DELETION ORDERS
161ZA Image deletion orders
(1) In this code “image deletion order” means an order under this Chapter which—
(a) is made in respect of an offender for an offence,
(b) relates to a photograph or film which is in the offender’s possession or under their control, and
(c) requires the offender to take steps specified in the order to ensure, so far as is reasonably practicable, that the photograph or film is put beyond use.
(2) For the purposes of subsection (1)(c), a photograph or film is put beyond use if—
(a) in the case of a physical item, it is destroyed;
(b) in the case of data stored by any means by or on behalf of the offender, it is deleted;
(c) in the case of content on an internet service, it is removed from the service or permanently hidden.
(3) For the purposes of this section—
(a) something is “deleted” if it is irrecoverable;
(b) “content”, in relation to an internet service, has the meaning given by section 236(1) of the Online Safety Act 2023;
(c) “internet service” has the meaning given by section 228 of that Act (and section 204(1) of that Act applies).
161ZB Image deletion orders: availability
(1) This section applies where a person commits an offence under any of the following provisions of the Sexual Offences Act 2003—
(a) section 66AA (sharing semen-defaced image);
(b) section 66AA (taking or recording intimate photograph or film);
(c) section 66AD (creating a copy of intimate photograph or film shared temporarily);
(d) section 66B (sharing or threatening to share intimate photograph or film);
(e) section 66E (creating purported intimate image of adult);
(f) section 66F (requesting the creation of purported intimate image of adult);
(g) section 67A(2B) (recording a person breast-feeding child).
(2) This section also applies where a person commits an inchoate offence in relation to an offence specified in subsection (1).
(3) The court by or before which the offender is convicted of the offence may make an image deletion order in respect of—
(a) a photograph or film to which the offence relates, and
(b) any other photograph or film—
(i) which shows, or appears to show, a person who is the subject of the photograph or film to which the offence relates in an intimate state,
(ii) which is a semen-defaced image of a person who is the subject of the photograph or film to which the offence relates, or
(iii) which shows a person who is the subject of the photograph or film to which the offence relates breast-feeding a child.
(4) The following provisions of the Sexual Offences Act 2003 apply for the purposes of this section—
(a) section 66AA(2) (meaning of “semen-defaced image”);
(b) section 66D(5) to (9) (meaning of “showing, or appearing to show, another person in an intimate state”);
(c) section 67A(3A) and (3B) (meaning of references to a person breast-feeding a child), ignoring references to the intention of the person who recorded the photograph or film.
(5) In relation to an offence under section 66F of the Sexual Offences Act 2003, a photograph or film is a photograph or film to which the offence relates for the purposes of this section if—
(a) it appears to be of a person who was the subject of the request to which the offence relates (whether or not it is what was requested), and
(b) it was in the offender’s possession, or under the offender’s control, as a result of that request.
(6) An image deletion order is not available if the offence was committed before the day on which section (Image deletion orders) of the Crime and Policing Act 2026 comes into force.
161ZC Period for complying with requirements
(1) An image deletion order must specify, in respect of each step the order requires the offender to take, the date by which the step must be taken (and different dates may be specified in respect of different steps).
(2) Where the order requires the offender to take a step in relation to a photograph or film that would result in the offender being unable to recover the photograph or film—
(a) the order must not require the step to be taken before the end of the period for giving notice of appeal against the conviction or order, and
(b) where notice of appeal against the conviction or order is given, the offender is not required to take the step until the appeal is finally determined or withdrawn.
161ZD Offence of failing to comply with an image deletion order
(1) It is an offence for a person in respect of whom an image deletion order made under this Chapter is in force to fail without reasonable excuse to comply with any requirement included in the order.
(2) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court, or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both.
161ZE Image deletion orders: interpretation
(1) This section applies for the purposes of this Chapter.
(2) “Photograph” includes the negative as well as the positive version.
(3) “Film” means a moving image.
(4) References to a photograph or film also include—
(a) an image, whether made or altered by computer graphics or in any other way, which appears to be a photograph or film,
(b) a copy of a photograph, film or image within paragraph (a), and
(c) data stored by any means which is capable of conversion into a photograph, film or image within paragraph (a).”
(3) In Chapter 5 of Part 3 (duties to explain or give reasons), after section 55 insert—
“55A Duty to give reasons where image deletion order not made
Where—
(a) a court is dealing with an offender for an offence, and
(b) an image deletion order is available, the court must give reasons if it does not make an image deletion order in respect of a photograph or film to which the offence relates (see section 161ZB(3)(a)).””
Baroness Levitt
That this House do not insist on its Amendments 259 and 260 and do agree with the Commons in their Amendments 260A to 260D in lieu.
That this House do not insist on its Amendments 259 and 260 and do agree with the Commons in their Amendments 260A to 260D in lieu.
“Intimate image material: reporting and registration
Schedule (Intimate image material: reporting and registration) makes provision about the reporting and registration of intimate image material.”
“(ja) section (Intimate image material reporting and registration) and Schedule (Intimate image material: reporting and registration);”
“SCHEDULE
INTIMATE IMAGE MATERIAL: REPORTING AND REGISTRATION
PART 1
TRUSTED FLAGGERS
Duty to designate trusted flagger
1 (1) The Secretary of State may by regulations designate persons as suitable to make intimate image reports to—
(a) providers of internet services, and
(b) providers of internet access services, for the purpose of assisting the providers to make judgments about whether content is intimate image content.
(2) An intimate image report is —
(a) a report that—
(i) content identified in the report is a photograph or film which shows, or appears to show, a person (P) in an intimate state, and
(ii) P, or a person acting on P’s behalf, has informed the person making the report that P does not consent to the sharing of the photograph or film, or
(b) a report of information provided to the person making the report by virtue of regulations under paragraph 2.
(3) The Secretary of State must exercise the power in sub-paragraph (1) to designate at least one person.
(4) The duty in sub-paragraph (3) ceases to apply if Secretary of State makes regulations under paragraph 3.
(5) Terms used in sub-paragraph (2)(a) and in section 66B of the Sexual Offences Act 2003 have the same meaning in sub-paragraph (2)(a) as in section 66B.
Duties to report intimate image content to trusted flagger
2 (1) The Secretary of State may by regulations amend the Online Safety Act 2023 for, or in connection with, the imposition on providers of regulated services of duties relating to the provision of intimate image information to a person designated under paragraph 1.
(2) In this paragraph “intimate image information” means information generated by the provider for the purposes of identifying content which the provider considers to be intimate image content
(3) The regulations may require intimate image information to be provided in a particular form (for example, a hash code).
(4) The provisions of the Online Safety Act 2023 that may be amended by regulations under this paragraph include, but are not limited to, section 131(2) (enforceable requirements).
PART 2
THE INTIMATE IMAGE REGISTER
The intimate image register
3 (1) The Secretary of State may by regulations make provision for or in connection with a register of intimate image material (the “intimate image register”).
(2) “Intimate image material” means material which—
(a) is intimate image content, or
(b) would be intimate image content if it were shared on an internet service.
(3) In this Part of this Schedule “intimate image content” has the meaning given by section 59 of the Online Safety Act 2023, except that section 59 applies as if subsections (13) and (14) (“intimate image content” on user-to-user services limited to user-generated content) were omitted.
The registrar
4 (1) The regulations may provide for the intimate image register to be maintained by—
(a) a person specified in the regulations,
(b) an individual appointed by the Secretary of State in accordance with the regulations, or
(c) the Secretary of State.
(2) Regulations under sub-paragraph (1)(b) may make provision about the terms on which an individual is appointed, including provision—
(a) for the payment of remuneration, allowances and expenses by the Secretary of State;
(b) for staff, accommodation and other facilities to be provided by the Secretary of State.
(3) The person who maintains the intimate image register is referred to in this Schedule as the registrar.
Operation of intimate image register
5 The regulations may make provision about—
(a) the form in which information is to be recorded on the intimate image register (which may in particular include hash codes);
(b) how material is to be reported to the registrar;
(c) how the registrar is to make judgments about whether material is intimate image material (which may in particular include provision similar to section 192(5) and (6) of the Online Safety Act 2023);
(d) how the registrar is to deal with reports that the registrar considers to be frivolous, vexatious or made in bad faith;
(e) appeals against decisions of the registrar;
(f) the sharing of information on the intimate image register with—
(i) providers of internet services and internet access services, and
(ii) other persons, for purposes specified in the regulations.
Payment of fees to registrar
6 (1) The regulations may require providers of internet services and internet access services to pay fees to the registrar, as a means of recovering the costs incurred by the registrar in exercising functions under the regulations.
(2) The regulations may in particular make provision—
(a) for fees to be paid in respect of specified periods;
(b) for different fees to be payable by different providers.
Duties of providers of internet services and internet access services
7 (1) The regulations may make provision for or in connection with imposing on providers of internet services duties relating to—
(a) the provision of intimate image information to the registrar;
(b) taking down content recorded on the intimate image register;
(c) preventing persons from encountering content recorded on the intimate image register.
(2) The Secretary of State may by regulations make provision for or in connection with imposing on providers of internet access services duties relating to preventing access to content recorded on the intimate image register.
(3) In this paragraph “intimate image information” means information generated by the provider for the purposes of identifying intimate image material.
(4) Regulations under sub-paragraph (1)(a) may—
(a) make provision about how a provider is to make judgments about whether material is intimate image material (which may in particular include provision similar to section 192(5) and (6) of the Online Safety Act 2023);
(b) require intimate image information to be provided in a particular form (for example, a hash code).
Enforcement
8 (1) The regulations may make provision for or in connection with the enforcement of requirements imposed on providers of internet services and internet access services (“providers”) by or under the regulations.
(2) The regulations may include provision conferring functions on one or more persons specified in the regulations (each of whom is an “enforcement authority”).
(3) The persons who may be specified in the regulations include the registrar and the Secretary of State.
(4) The functions which may be conferred on an enforcement authority include—
(a) powers to require providers to provide information to the enforcement authority;
(b) powers to impose monetary penalties on providers for failure to comply with requirements;
(c) powers to issue notices (“compliance notices”) requiring providers to take steps specified in the notice for the purposes of complying with, or remedying a failure to comply with, a requirement.
(5) If the regulations provide for the imposition of monetary penalties they must provide—
(a) that a penalty (or, where more than one penalty is imposed in respect of a failure, those penalties taken together) may not exceed a maximum amount specified in the regulations (which may not be more than £3 million);
(b) for the amount of a penalty imposed on a provider to be appropriate and proportionate, having regard to—
(i) the failure to comply in respect of which it is imposed;
(ii) any penalties previously imposed on the provider in respect of that failure or other failures;
(iii) the size and financial resources of the provider.
(6) The regulations may provide for requirements imposed by a compliance notice to be enforceable, on the application of the enforcement authority, by injunction.
(7) The regulations—
(a) must make provision for appeals against the imposition of a monetary penalty and the issue of a compliance notice (if they provide for those things);
(b) may make provision for appeals against other decisions of an enforcement authority.
Payment of fees to enforcement authority
9 (1) The regulations may require providers of internet services and internet access services to pay fees to enforcement authorities, as a means of recovering the costs incurred by enforcement authorities in exercising their functions under the regulations.
(2) The regulations may in particular make provision—
(a) for fees to be paid in respect of specified periods;
(b) for different fees to be payable by different providers.
Guidance
10 The regulations may provide for the issue of guidance by—
(a) the registrar;
(b) enforcement authorities;
(c) the Secretary of State.
Duties of OFCOM
11 The regulations may require OFCOM to have regard to the intimate image register when—
(a) preparing a code of practice under section 41 of the Online Safety Act 2023;
(b) exercising its functions under Article 5(1) of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and retail charges for regulated intra-EU communications and amending Directive 2002/22/EC and Regulation (EU) No 531/2012, and the regulations may amend that Act or that Regulation for or in connection with that purpose.
PART 3
INTIMATE IMAGE REGISTER: POWER TO AMEND ONLINE SAFETY ACT 2023
12 (1) The Secretary of State may by regulations amend the Online Safety Act 2023 for or in connection with the imposition on providers of regulated services of duties relating to—
(a) the provision of intimate image information to the registrar;
(b) taking down content recorded on the intimate image register;
(c) preventing persons from encountering content recorded on the intimate image register.
(2) In this paragraph “intimate image information” means information generated by the provider for the purposes of identifying intimate image content.
(3) Regulations under sub-paragraph (1)(a) may require intimate image information to be provided in a particular form (for example, a hash code).
(4) The provisions of the Online Safety Act 2023 that may be amended by regulations under this paragraph include, but are not limited to, section 131(2) (enforceable requirements).
PART 4
SUPPLEMENTARY PROVISION
Extra-territoriality
13 (1) References in this Schedule to an internet service include an internet service provided from outside the United Kingdom—
(a) which has a significant number of United Kingdom users, or
(b) one of the target markets of which (or the only target market of which) is United Kingdom users.
(2) A user of an internet service is a “United Kingdom user” if—
(a) where the user is an individual, the individual is in the United Kingdom;
(b) where the user is an entity, the entity is incorporated or formed under the law of any part of the United Kingdom.
Interpretation
14 (1) This paragraph applies for the interpretation of this Schedule.
(2) The following terms have the same meaning as in the Online Safety Act 2023—
“content” (see section 236 of that Act);
“internet service” (see section 228 of that Act);
“intimate image content” (see section 59 of that Act), except in Part 2 of this Schedule (see paragraph 3(3));
“provider”, in relation to an internet service of any kind (see section 226 of that Act);
“regulated service” (see section 4(4) of that Act).
(3) “Internet access service” means a service that provides access to virtually all (or just some) end points of the internet.
(4) The following terms have the meaning given by the specified provision of this Schedule—
enforcement authority | paragraph 8 |
intimate image register | paragraph 3 |
intimate image material | paragraph 3 |
the registrar | paragraph 4” |
Baroness Levitt
That this House do agree with the Commons in their Amendments 263A to 263G.
(1A) That A and B were related, or pretending to be related, such that A was related to B as parent, grandparent, child, grandchild, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece.
(1B) That—
(a) A and B were related or had been related, or were pretending to be related or to have been related, such that A was or had been related to B as step-parent, step-child, stepbrother, stepsister, foster parent or foster child, and
(b) at least one of A and B was, or was pretending to be, under 18.”
“(4A) For the purpose of subsections (1A) and (1B), A and B are not to be taken as pretending to be related if it is fanciful that they actually were or had been related in the way pretended.
(4B) In subsection (1A)—
(a) “parent” includes an adoptive parent;
(b) “child” includes an adopted person within the meaning of Chapter 4 of Part 1 of the Adoption and Children Act 2002;
(c) “uncle” means the brother of a person’s parent, and “aunt” has a corresponding meaning;
(d) “nephew” means the child of a person’s brother or sister, and “niece” has a corresponding meaning.
(4C) In subsection (1B), “step-parent”, “stepbrother”, “stepsister” and “foster parent” have the meanings given by section 27(5) of the Sexual Offences Act 2003; and “step-child” and “foster child” have corresponding meanings.”
“(iii) the person was not or had not been related to person B or A (as the case may be) in a way mentioned in section 67E(1A) or (1B).”
“(iii) the person was not or had not been related to person B or A (as the case may be) in a way mentioned in section 67E(1A) or (1B), and”
Baroness Levitt
That this House do not insist on its Amendment 264 and do agree with the Commons in their Amendments 264A to 264F in lieu.
“Online pornography (age and consent verification): duty to review and report
(1) The Secretary of State must conduct a review of the role of providers of internet services in—
(a) verifying the age of individuals appearing in pornographic content published or displayed on their services;
(b) verifying whether individuals appearing in pornographic content published or displayed on their services consent to the content being published or displayed.
(2) The Secretary of State must lay before Parliament, and publish, a report of the review.
(3) The Secretary of State must comply with subsections (1) and (2) before the end of the 12 month period beginning with the day on which this Act is passed.
(4) In this section the following terms have the same meaning as in the Online Safety Act 2023—
“internet service” (see section 228 of that Act);
“pornographic content” (see section 236 of that Act);
“provider”, in relation to an internet service of any kind (see section 226 of that Act).”
“Online pornography (age and consent verification): power to amend Online Safety Act 2023
(1) The Online Safety Act 2023 is amended as follows.
(2) After section 217 insert—
“Power to amend Act: pornographic content
217A Power to impose duties about pornographic content
(1) The Secretary of State may by regulations amend this Act for or in connection with the imposition, on providers of regulated services or regulated services of a particular kind, of duties relating to—
(a) verifying the age of individuals appearing in pornographic content published or displayed on those regulated services (“age verification duties”);
(b) verifying whether individuals appearing in pornographic content published or displayed on those regulated services consent to the content being published or displayed (“consent verification duties”).
(2) Age verification duties and consent verification duties may include duties relating to the systems and processes used to operate regulated services, or regulated services of a particular kind.
(3) Consent verification duties may include duties relating to cases where consent previously given is withdrawn.
(4) Regulations under this section may make provision requiring OFCOM to issue guidance to providers of regulated services, or regulated services of a particular kind, to assist them to comply with age verification duties and consent verification duties.
(5) The provisions of this Act that may be amended by the regulations in connection with the imposition of age verification duties and consent verification duties include, but are not limited to, section 131(2).”
(3) In section 225(1) (regulations subject to affirmative procedure) after paragraph (g) insert—
“(ga) regulations under section 217A,”.”
“Online pornography (age and consent verification): power to make regulations
(1) The Secretary of State may by regulations make provision for or in connection with the imposition on providers of specified internet services of duties relating to—
(a) verifying the age of individuals appearing in pornographic content published or displayed on those internet services (“age verification duties”);
(b) verifying whether individuals appearing in pornographic content published or displayed on those internet services consent to the content being published or displayed (“consent verification duties”).
(2) Age verification duties and consent verification duties may include duties relating to the systems and processes used to operate specified internet services.
(3) Consent verification duties may include duties relating to cases where consent previously given is withdrawn.
(4) The regulations may confer functions on— (a) a body established by the regulations, or (b) another body specified in the regulations, (“the regulator”).
(5) The regulations may make provision—
(a) establishing or modifying the constitutional arrangements of the regulator; (b) establishing or modifying the funding arrangements of the regulator.
(6) The functions which may be conferred on the regulator include—
(a) powers to, by notice, require providers of specified internet services to provide information to the regulator;
(b) powers, in relation to requirements imposed by or under the regulations, corresponding or similar to those conferred on OFCOM by or under Chapter 6 of Part 7 of the Online Safety Act 2023 in relation to enforceable requirements, including provisions conferring power to impose monetary penalties.
(7) The provision which may be made under subsection (6)(a) includes provision corresponding or similar to that made in relation to requirements to provide information to OFCOM by—
(a) section 109 of the Online Safety Act 2023 (offences in connection with information notices), and
(b) section 113 of that Act so far as relating to section 109 (penalties for information offences).
(8) If the regulations make provision under subsection (6)(b) corresponding or similar to provision in relation to which an appeal lies under section 168 of the Online Safety Act 2023, they must make corresponding or similar provision for an appeal.
(9) The regulations may make provision for appeals against other decisions of the regulator.
(10) The regulations may make provision requiring providers of specified internet services to pay fees to the regulator.
(11) The provision which may be made under subsection (10) includes provision corresponding or similar to that made in relation to the payment of fees to OFCOM by or under Part 6 of the Online Safety Act 2023.
(12) The regulations may make provision requiring the regulator to issue guidance to providers of specified internet services to assist them to comply with age verification duties and consent verification duties.
(13) References in this section to an internet service include an internet service provided from outside the United Kingdom—
(a) which has a significant number of United Kingdom users, or
(b) one of the target markets of which (or the only target market of which) is United Kingdom users.
(14) In this section the following terms have the same meaning as in the Online Safety Act 2023—
“internet service” (see section 228 of that Act);
“pornographic content” (see section 236 of that Act);
“provider”, in relation to an internet service of any kind (see section 226 of that Act);
“United Kingdom user” (see section 227 of that Act).
(15) In this section “specified” means specified, or of a description specified, in the regulations.”
“(ja) sections “(Online pornography (age and consent verification): duty to review and report), (Online pornography (age and consent verification): power to amend Online Safety Act 2023), (Online pornography (age and consent verification): power to make regulations),””
“(ba) sections “(Online pornography (age and consent verification): duty to review and report), (Online pornography (age and consent verification): power to amend Online Safety Act 2023), (Online pornography (age and consent verification): power to make regulations),””
Baroness Levitt
That this House do not insist on its Amendment 265 and do agree with the Commons in their Amendments 265A to 265C in lieu with the following amendments to Commons Amendment 265A—
“Pornographic images of sexual activity with child under 16
(1) After section 67G of the Criminal Justice and Immigration Act 2008 insert—
“67H Possession or publication of pornographic images of sexual activity with child under 16
(1) It is an offence for a person (P) to be in possession of an image if—
(a) the image is pornographic, within the meaning of section 63,
(b) the image portrays, in an explicit and realistic way, a person (A) engaged in sexual activity with another person (B),
(c) a reasonable person looking at the image would think that A and B were real, and
(d) a reasonable person—
(i) looking at the image, and
(ii) taking into account any sound or information associated with the image, would think that at least one of A or B was, or was pretending to be, under 16.
(2) It is an offence for a person to publish an image of the kind mentioned in subsection (1).
(3) Publishing an image includes giving or making it available to another person by any means.
(4) For the purposes of subsection (1)(d)—
(a) the reference to sound or information associated with the image is—
(i) when subsection (1)(d) applies for the purpose of an offence under subsection (1), to sound, or information, associated with the image that is in P’s possession, and
(ii) when subsection (1)(d) applies for the purpose of an offence under subsection (2), to sound, or information, associated with the image that the person in subsection (2) publishes with the image, and
(b) a person is not to be taken as pretending to be under 16 if it is fanciful that they are actually under 16 in the way pretended.
(5) In this section “image” has the same meaning as in section 63.
(6) Subsections (1) and (2) do not apply to excluded images, within the meaning of section 64.
(7) Proceedings for an offence under this section may not be instituted except by or with the consent of the Director of Public Prosecutions.
67I Defences to offences under section 67H
(1) Where a person is charged with an offence under section 67H(1), it is a defence for the person to prove any of the matters mentioned in subsection (2).
(2) The matters are—
(a) that the person had a legitimate reason for being in possession of the image concerned;
(b) that the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be an image of the kind mentioned in section 67H(1);
(c) that the person—
(i) was sent the image concerned without any prior request having been made by or on behalf of the person, and
(ii) did not keep it for an unreasonable time;
(d) that—
(i) the person directly participated in the act portrayed as person A or person B mentioned in section 67H(1)(b),
(ii) the act did not involve the infliction of any non-consensual harm on any person, and
(iii) neither A nor B was under 16.
(3) Where a person is charged with an offence under section 67H(2), it is a defence for the person to prove any of the matters mentioned in subsection (4).
(4) The matters are—
(a) that the person had a legitimate reason for publishing the image concerned to the persons to whom they published it;
(b) that the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be an image of the kind mentioned in section 67H(1);
(c) that—
(i) the person directly participated in the act portrayed as person A or person B mentioned in section 67H(1)(b),
(ii) the act did not involve the infliction of any non-consensual harm on any person,
(iii) neither A nor B was under 16, and
(iv) the person only published the image to person B or A (as the case may be).
(5) In this section “non-consensual harm” has the same meaning as in section 66.
67J Penalties for offences under section 67H
(1) A person who commits an offence under section 67H(1) is liable—
(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);
(b) on conviction on indictment, to imprisonment for a term not exceeding three years or a fine (or both).
(2) A person who commits an offence under section 67H(2) is liable—
(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine (or both).”
(2) In section 68 of that Act (special rules relating to providers of information society services), after “67E” insert “and 67H”.
(3) In Schedule 14 to that Act (special rules relating to providers of information society services), in paragraphs 3(1), 4(2) and 5(1) after “67E” insert “or 67H”.
(4) In Schedule 34A to the Criminal Justice Act 2003 (child sex offences for the purposes of section 327A), after paragraph 13ZB insert—
“13ZC An offence under section 67H of that Act (possession or publication of pornographic images of sexual activity with child under 16) in relation to an image showing a person under 18.”
(5) In Schedule 7 to the Online Safety Act 2023 (priority offences), in paragraph 29 after paragraph (c) insert—
“(d) section 67H (possession or publication of pornographic images of sexual activity with child under 16).””
“(ja) section (Pornographic images of sexual activity with child under 16)(5);”
(1A) The conditions are—
(a) the image portrays, in an explicit and realistic way, a person (A) engaged in sexual activity with another person (B),
(b) A and B are real, and
(c) at least one of A or B is, or is pretending to be, under 16.
(1B) A person is not to be taken as pretending to be under 16 if it is fanciful that they are actually under 16 in the way pretended.”
Lord Hanson of Flint
That this House do not insist on its Amendment 311, to which the Commons have disagreed for their Reason 311A.
Lord Hanson of Flint (Lab)
My Lords, in moving Motion N, I will also speak to Motions S, T, U and X. Amendment 311, tabled by the noble Lord, Lord Walney, seeks to introduce a proscription regime for extreme criminal protest groups. I appreciated the opportunity to discuss the amendment with the noble Lord—before Report, during Report formally and informally since then. I understand the concerns that led to the adoption of Amendment 311. However, it remains the case that the Government cannot support this amendment.
The amendment aims to minimise the risk of Palestine Action-style sign holders being arrested to challenge a proscription decision. I want to inform the House of the views of Jonathan Hall KC, the Independent Reviewer of Terrorism Legislation, who has noted that supporters will still seek arrest to challenge the regime and the same disproportionality arguments would arise because the new offences closely mirror—and in some respects, go beyond—those under terrorism legislation.
There is a broader risk, which again I have shared with the noble Lord, Lord Walney, privately, and which has been identified by the independent reviewer, that the proscription regime is undermined by the proposal and the threshold for proscription will naturally increase if there is an alternative designation available. The Government may be pressured not to proscribe terrorist organisations and instead pursue a less forceful and less effective measure.
The designation test set out in the amendment is unclear, particularly the concept of serious harm to the rights of others, which sadly, I fear, will create uncertainty for the police, for prosecutors and for the courts. The noble Lord, Lord Macdonald of River Glaven, KC, as the House will know, is currently undertaking a review of public order and hate crime legislation. I fully expect him to report to the House and to Parliament as a whole in May. It would be appropriate to wait for the outcome of that review before committing to any further legislation. I hope that, with those comments, the noble Lord, Lord Walney, will not wish to pursue his amendment.
Turning to Motion S and Amendment 342, I agree with the sentiments in our earlier debates expressed by the noble Baroness, Lady Doocey. Multi-agency engagement is essential to the success of youth diversion orders in practice. However, I would argue to her—and she is at liberty to accept it or not—that this has already been reflected in current drafting of the legislation. There is a duty on the police under Clause 174 of the Bill to consult youth offending teams in England and Wales, or their equivalents in Scotland and Northern Ireland, where the respondent is under the age of 18.
I want to emphasise that youth offending teams are necessarily multi-agency in nature and include representation from probation, local council social services, health, education and others. This means that the police will already need to ensure there is a wide range of expertise considered at the start of any process.
The department is also currently drafting statutory guidance, which will support the police in applying for youth diversion orders and management of the orders when in place. This will include guidance for police on the consultation process, and consideration of alternative interventions before the police can even apply for an order. The guidance will be laid before Parliament in due course. I have explained to the noble Baroness that, unusually for statutory guidance, in this instance we have provided that the guidance is subject to scrutiny by both Houses through the negative resolution procedure. That is an abnormal procedure for the type of activity before the House today. Further, the legislation dictates that the police must consider the necessity and proportionality of the order and the measures within it on a case-by-case basis, and this would need to include consideration of alternative options.
However, given the concerns in Committee and on Report, the Commons has agreed Amendment 342A in lieu. This amendment will clarify that the statutory guidance may include guidance about matters to be taken into account by the police prior to making an application for a youth diversion order, including, crucially, consideration of alternative interventions and guidance on their duty to consult partners under Clause 174, including youth justice services. I know there has been a bit of debate on this outside the Chamber and in my discussions with the noble Baroness. To be clear, the guidance in this case will use “may”, but that reflects usual practice. I hope that the amendment in lieu offers sufficient assurance and that the noble Baroness, Lady Doocey, knows that the spirit of the original amendment has been met. It is our intention to address these matters in the guidance, and I hope that will assist her.
I turn to Motion T and Amendment 357 on the glorification of terrorism. I am pleased that the noble Baroness, Lady Foster, is available to examine this issue. I have had a great opportunity to discuss these matters with her in informal discussions outside the Chamber. I have previously set out that I fully recognise the harm that can be caused by the glorification of terrorism. The offence in Section 1 of the Terrorism Act was designed to prevent terrorist risk by criminalising statements that could lead to individuals being encouraged to carry out acts of terrorism themselves. Such statements not only increase the risks to public safety but potentially legitimise terrorist actors if left unchecked.
However, as I set out at on Report and have discussed with the noble Baroness outside the Chamber, the offence of encouraging terrorism is already very wide, and I believe it strikes the right balance between freedom of speech and criminalising statements, which may even increase terrorist risk. Amendment 357 would remove an important safeguard requiring that the glorification be understood to mean that the conduct should be emulated in current circumstances. Put simply, that safeguard aims to prevent the inadvertent criminalisation of statements about historic acts of terrorism, where those statements do not carry the same risk of those acts being repeated nowadays. I pray in aid statements around such high-profile figures as the former President of South Africa, Nelson Mandela, who may well have had arguments around terrorism activities in the past.
I recognise that the noble Baroness, Lady Foster, has attempted to limit her changes to statements that concern acts of terrorism carried out by proscribed organisations. However, this does not fully mitigate the risk of overreach I have described, and it does not recognise the existence of a separate terrorist offence—the offence of inviting support for a proscribed organisation—which the amendment would arguably overlap with.
Nevertheless, I understand and appreciate the strength of feeling on this issue, so I am proposing to the House that the Government will ask the Independent Reviewer of Terrorism Legislation to carry out a targeted review of the encouragement offence. As Members of your Lordships’ House will know, the independent reviewer’s role is to review the operation of terrorism legislation in practice, so this commission by the Government will be an opportunity for the reviewer to undertake a detailed review of the use of the encouragement offence in practice and to identify any issues that may warrant further consideration by the Government. As I explained to the noble Baroness in our private discussions, I will of course discuss the terms of reference for that review with the independent reviewer, and I understand that Jonathan Hall KC is ready to meet with the noble Baroness as part of the review, including a prior discussion on the terms of reference for any review. I hope that assists in what is a genuine attempt by the noble Baroness to clarify this issue, and I hope that I have at least attempted to meet that Motion half way.
Lord Walney
Leave out from “House” to end and insert “do insist on its Amendment 311.”
Lord Walney (CB)
My Lords, I was disappointed that the Government directed their Members in the Commons to vote down Amendment 311, which would have created a limited power for the Government to designate as an extreme criminal protest group organisations that attempt to influence public policy through a limited number of offences, including criminal damage, without labelling them as terrorists or criminalising simple expressions of support, such as holding up signs.
I am grateful for the time that the Minister has taken to meet me directly on this matter on a number of occasions, as he said. He has characterised the Government’s objections in two areas. The first is the observations made by the Government’s Independent Reviewer of Terrorism Legislation, Jonathan Hall, which were published on 31 March and the second is the review of public order legislation by the noble Lord, Lord Macdonald of River Glaven, which he assures me is due to report shortly.
I shall deal with both those issues briefly. Jonathan Hall makes important points that we should all reflect on. He summarises his objections as: first, that the power potentially overlaps with terrorism proscription, but the relationship is unclear; secondly, that the existence of the new power will be used to undermine terrorist proscription; and, thirdly, that it is doubtful whether new offences are suitable for groups operating below the national security threshold. I shall take these three objections in turn.
On the first point, if that is a genuine concern to the point that the Government believe that there is genuine potential for a proscribed group to be able legally to contest the proportionality of a full terrorism proscription because of the existence of a lower form of designation, then it is surely within the Government’s power to insist that the one does not preclude the other. That is a safeguard that could be put into legislation that the Government bring forward.
On the second point—the idea that this will be used to undermine terrorist proscription—it is important to make the point that we are dealing with a narrow and quite unusual form of proscription here that uses the part of the definition of terrorism that relates to economic damage. A group that is to be designated as terrorist because it used violent methods to target individuals or groups to kill has never been under the scope of this extreme criminal protest group designation. We are dealing with the relatively narrow issue of a group that uses methods such as Palestine Action has used, where there has been a level of violence that the Government have asserted as part of its proscription, but it is undoubted that the main part of what it has done has been intimidation and attempts to influence public policy through criminal damage. Jonathan Hall suggests that, if you move the goalposts, these groups would find new ways to break the law proportionately; even if that were not holding up signs, they would find a new way to do that. That is, of course, a possibility. We could never devise legislation that could guarantee against people performatively trying to clog up the court system in the way that is happening at the moment with the Palestine Action protesters. The key point here is that, while there will always be a hard core of people who are determined to contest this, what has made Palestine Action’s terrorist proscription so controversial is not that people agree with what it is doing but the fact of labelling it as terrorism.
I agreed with the proscription of Palestine Action, which I know is not universal in the House. I hope that the Government’s appeal against the High Court judgment is successful. Nevertheless, it cannot be seen as good public policy and it cannot be seen that this framework is working if the Government took five years to reach the judgment that the sustained campaign of criminal damage and vandalism that was carried out by Palestine Action reached the terrorism threshold. This measure would enable faster action to deal with that. I know that the Minister will not say that the Government would be deterred from designating another group that eventually reached the terrorism threshold primarily through criminal damage. They will not admit that, but I suggest that they would be highly wary of repeating this with the next Palestine Action group because of the level of controversy that this has generated. Therefore, there is a gap in the legislative framework that is not being filled.
That leads to the third point, where Jonathan Hall says that he contests whether the powers are appropriate, given that they are relatively severe. They are significantly less severe than terrorist proscription but still relatively severe. I respectfully disagree with him on that point. I hope that he, and the Government, will reflect, given the nature and severity of the problem of extreme protest groups using criminal damage in a systematic way, which is causing huge amounts of economic damage and damage to the public realm.
That ties into the second of the Government’s objections, which is, as the Minister has stated a number of times and again today, my noble friend Lord Macdonald’s upcoming review. We are all looking forward to that, and I hope that I am able to persuade my noble friend Lord Macdonald of the merits of this, but the fact is that the Government have acted ahead of this review in other areas and could do so now. There is a need to do so now, rather than to wait for when the next legislative opportunity comes along, which may be years down the track.
There is a growing epidemic of these tactics being used to frighten the public and try to deter businesses from carrying out legitimate, lawful activity. I had a meeting with a major insurance supplier yesterday, which does not want at this point to be public because of the fear of further reprisals. It spelled out that because of being tangential—at one, two or three removes from—to a defence company that may have some relationship with Israel’s conflict in Gaza, though that is highly debatable, it is repeatedly attacked. Its windows are being smashed, red paint is being daubed over its offices and its employees are frightened to go to work. It is spending literally millions of pounds per year on preventive measures and the clean-up operations. That is one single insurer, and this is spreading. It is completely unacceptable that the defence industry is being subjected to this, but it is spreading far beyond the defence industry into the insurance and financial sectors, and other sectors.
The framework we have is not adequate to deal with this. It would not be disproportionate to put in place this limited measure to be able to restrict the activities of such organisations and send a message of greater deterrence, to protect businesses, workers and the public from this sustained intimidation. I beg to move.
Baroness Doocey (LD)
My Lords, Motion S1 is in my name. On Report, your Lordships supported Amendment 342 for one overriding reason: to make sure that the tragic failures of the past are not built into future law.
Three days ago, the Fulford report into the Southport tragedy was published. I had hoped that it might lead to a change of heart by the Government, but, regrettably, it has not. Fulford’s findings are stark: the tragedy was not caused by a lack of powers but by systemic failure. Risk information was mishandled, lost or watered down as it passed between agencies. No one was responsible for pulling the full picture together. Referrals went unanswered. Officers often acted without knowing what help or interventions were available, and some decisions were taken outside the bounds of what could reasonably be expected because the system had failed them.
These failures cost lives. Fulford makes it clear that, unless the way agencies share and account for risk is strengthened, such failures will happen again. These were not one-off mistakes; they were the result of weak information management and an absence of co-ordinated leadership. The danger was not properly recognised because no one joined up the information and acted upon it. That is precisely the gap which my amendment is designed to close.
The Government tell us that this should be left to guidance. They say that a statutory duty for multi-agency consultation would make the law too rigid and prevent judges exercising discretion. Surely that gets things the wrong way round. Judges can use their discretion properly only if they have had all the relevant information before them. A few minutes ago, the Minister said that the police have a duty to consult, and they do, but that duty is narrow. It is limited to the youth offending team. It leaves out the schools, health professionals and social services who often know the child best. Amendment S1 would not reduce discretion; it would support informed decision-making and, as a result, better public protection.
Lord Pannick (CB)
My Lords, I will say a few words in relation to Motion N1, in the name of the noble Lord, Lord Walney, on extreme criminal protest groups. The House should be thanking the noble Lord for his enormous efforts and dedication in relation to this important subject over many years.
There is no doubt about the gravity of the mischief that the United Kingdom is facing. There are extreme criminal protest groups and, sadly, people who believe that the way to advance their political views—to which they are perfectly entitled—about Gaza, Israel and other subjects is impermissibly to use violence against people and to smash up property. It is disgraceful, and the law needs to deal with these people powerfully and effectively. It is symptomatic of a malaise in our society: we saw this the other night at Finchley Reform Synagogue, and with the setting fire to ambulances in north-west London. It is all disgraceful, and every effort must be made by the law to ensure that this type of action can be addressed and remedied.
I supported the noble Lord, Lord Walney, in his amendment on Report, which has now been considered by the Commons. However, I understand—and hope it is the case—that he will not be pressing his Motion today to divide the House. I am sure that is right, and it is right for the reasons the Minister gave.
Jonathan Hall, the Independent Reviewer of Terrorism Legislation, has made some powerful points that need to be considered carefully in relation to how we deal with extreme criminal protest groups. We have heard that the noble Lord, Lord Macdonald of River Glaven, will be reporting next month.
There is also the appeal relating to the proscription of Palestine Action, which will be heard in the Court of Appeal the week after next. I very much hope—it is a matter for the court, of course—that the Court of Appeal will give judgment before the noble Lord, Lord Macdonald, issues his report. He will obviously wish to take account of that judgment, as will the Home Office.
It is important to stress that there are two important issues raised by the Motion tabled by the noble Lord, Lord Walney. The first is whether the law is at its most effective if it requires that, before proscription can occur, a particular body has to be labelled as terrorist. I entirely understand that the actions of Palestine Action have been recognised by the Government to fall within the statutory definition of a terrorist group. The Divisional Court judgment, which has been much criticised, accepts that Palestine Action is indeed a terrorist group. However, there is a real issue here: does it undermine the efficacy of proscription for a body such as Palestine Action to be labelled as terrorist given that, for most people, terrorism has a connotation that many people would not regard as satisfied by a protest group, objectional and damaging though it is? That is something the Home Office needs to give further thought to.
Secondly, the other point which the noble Lord, Lord Walney, emphasised in his Motion—it is a real point—is that the current law does not just proscribe organisations such as Palestine Action; it makes it unlawful for people to stand in a public place and say, “I support Palestine Action”. That has led to hundreds of otherwise law-abiding individuals being arrested, which poses real problems for the administration of justice in this country. It may be better to have a proscription law that does not criminalise the mere expression of support for a body such as Palestine Action, however objectional and unlawful the conduct of that organisation is. Perhaps we should confine the illegality to those who organise such a group, finance it and do more by way of support than simply sitting in a public place saying that they sympathise with that organisation. Those are difficult questions. Jonathan Hall has made some powerful points in relation to them. I am simply saying that I hope the Home Office will give further thought to these matters. I am sure it will.
I thank the Minister because he has laboured hard on this Bill, which covers so many areas. He has responded with sensitivity, tact and courtesy to a wide range of subjects, for which he has all our thanks. He will no doubt be pleased to know that it is absolutely inevitable that these subjects will return to the House. We very much look forward to hearing his further comments under future legislation.
Baroness Foster of Aghadrumsee (Non-Afl)
My Lords, I sincerely apologise to the Minister for not being here for the beginning of his speech. He will be glad to know my athleticism, as I was running down the corridor, allowed for me to be in time for his reference to Motion T, which I will speak to briefly. It deals with the glorification of terrorism. I thank all those who supported the amendment on Report. I believe that, in doing so, we have collectively underlined the importance of dealing with this issue, which is becoming a gateway to extremism and, worse, terrorism.
I thank the Minister in particular for his engagement and that of his officials, and for the constructive way in which they have engaged around the whole issue. As a result, I will not push Motion T1 to a vote today but look forward to engaging in the review that will be put in place after the Bill becomes law. I particularly welcome the opportunity to engage around the review’s terms of reference. I hope it will take the approach of engaging widely to ascertain how a narrative is taking hold in our society here in the UK that it is somehow acceptable to glorify terrorism to effect change, and look at the real damage it can cause to society.
I also hope the review will take note of the fact that there has not been a single prosecution in Northern Ireland, despite the obvious ongoing glorification of terrorism there. I know that the Minister, and many in this House, recognise that this is a growing issue. If there is any doubt that it is very much a real and live issue, a brief glimpse at my social media feeds following Report in this House will confirm this to be the case. One particularly brazen poster said that he wished
“the provos had killed your da when they attacked him. Up the Ra”.
That is a reference to the attempted murder of my father by the IRA in 1979. Of course, that is something that I have become quite resilient to, but it is entirely unacceptable that people can glorify terrorism as a way to make change happen.
Over Easter, when many of us were relaxing with our friends and family, some of those who are content to glorify the actions of the IRA broke into a Church of Ireland Sunday school in a village near to where I live and ransacked it. We know that they were supporters of the IRA because they wrote “Up the Ra” over the 10 commandments. I was pleased to see the local Roman Catholic community condemn that vandalism, but there was complete silence from the political wing of the IRA—in other words, Sinn Féin—and nothing from its local representatives or the self-appointed “First Minister for all”.
As we have said throughout this debate, this is not just a Northern Ireland issue. Here in London, just yesterday, Finchley Reform Synagogue endured what police are calling an antisemitic hate crime, when the shul was attacked in an attempted break-in and firebombing incident. This shul is not only a place of worship for the Jewish community; it also hosts a nursery, a homeless shelter and a safe place for refugees to gather.
Those are two attacks that happened very recently in two different parts of the United Kingdom, in two different faith buildings, both motivated by hate. As Sarah Sackman, the MP for Finchley and Golders Green, said yesterday, we cannot
“allow this to become the ‘new normal’”.
There is a definite need to deal with the glorification of terrorism. It has real consequences for young people being led into extremism and thinking that terrorism is somehow cool and edgy, rather than learning about the fact that it leads to division, pain and hurt, mostly to their neighbours. The radicalisation of children should concern us all in this House.
I thank again all noble Lords who supported the amendment on Report, for highlighting the issue. I thank the Government for responding positively with the announcement of the review led by Jonathan Hall; I look forward to engaging with him. Therefore, I will not move Motion T1.
Lord Polak (Con)
My Lords, I supported the noble Baroness, Lady Foster, throughout, and I continue to do so. I also thank the Minister for the time he has taken to engage on the issue and for recognising that this is a serious and pertinent problem. The glorification of terrorism has real consequences, as we have been hearing. It contributes to the normalisation of extremism, and that in turn makes us all less safe.
I particularly welcome the Minister’s agreement to commission a review by Jonathan Hall KC. He seems to be rather busy and to have a lot on his plate, and I hope that this is a quick look at something. It is important that the review looks at all forms of glorification, including the very significant rise we have seen since 7 October 2023. We saw, for instance, young people in the days after 7 October wearing images of parachutes on their backs, imagery clearly associated with those Hamas terrorists who entered Israel and carried out the brutal attacks on civilians. That kind of conduct is not incidental; it reflects a climate in which acts of terror are being referenced in ways that risk admiration or endorsement.
Viscount Hailsham (Con)
I follow the noble Baroness by apologising to your Lordships that I was not here for the commencement of the Minister’s speech, but I heard the great majority of what he said, and I was also present for the speeches of the noble Lords, Lord Walney and Lord Pannick.
I want to emphasise my considerable support for subsection (4) of the new clause proposed by Amendment 311, which deals directly with the concerns that I expressed in Committee and on Report. I am deeply troubled by the fact that people who are expressing support for Palestine Action in the streets of London are in fact using shorthand simply to protest at what they think is going wrong in Gaza and the West Bank. I do not think that those people should be charged with or arrested for terrorism. The proposed new subsection deals directly with that, and I think it is a very useful way forward. I very much hope that in the review, or if any amendment to the Terrorism Act is brought forward, the provisions of that subsection would be incorporated into any change of law, because that subsection makes it plain that, unless somebody is doing something which is really in furtherance of a criminal offence, they are not to be treated as a terrorist simply for demonstrating.
The Deputy Speaker (Lord Russell of Liverpool) (CB)
Before we have any other contributions, I remind your Lordships that there is a very clear rule here, that if one is not present in the Chamber for the beginning of a group it is unacceptable to participate. Apologising and then proceeding is not the way that we do it.
Baroness Stowell of Beeston (Con)
My Lords, just before we progress, while the noble Lord on the Woolsack is absolutely right in what he has just argued, I have just witnessed three Members of this House not complying with the Companion. While my noble friend was wrong to do what he did, it is not for the noble Lord on the Woolsack to point out failures of procedure—it is for the Government Chief Whip or Deputy Chief Whip, who is present, to do so. If we all start not meeting our own individual responsibilities or discharging them properly, none of us is going to be complying with the Companion.
Baroness Fox of Buckley (Non-Afl)
My Lords, I feel as though I have entered into a slightly surreal moment there, but I thank noble Lords for that clarification. I speak very briefly in support of what the noble Lord, Lord Walney, is trying to do—having opposed it at an earlier stage, which is why I thought it was important to speak. The comments made by the noble Lord, Lord Walney, and indeed the noble Lord, Lord Pannick, were very helpful in outlining what we are confronting and what we face at the present time.
I just raise some queries for the Minister to help me understand. One point that seems to have been made is that, if the proposal from the noble Lord, Lord Walney, were accepted, it would mean raising the threshold for proscribing an organisation. That did not make any sense to me because I would hope that, as legislators, we could make the finer distinctions between thresholds. We need some nuance here; otherwise, I fear that we will use a sledgehammer to crack a nut, which is what I fear has happened in relation to Palestine Action, potentially.
The notion of an extreme criminal protest group is a new phenomenon and therefore one that requires new thinking. The intimidation and criminal damage are not spontaneous; they are organised by organisations that proclaim that they are organisations. That needs to be tackled but they are not terrorist organisations. The point about supporting Palestine Action, which I thought the noble Lord, Lord Pannick, explained very well in terms of holding up a sign, is that we do not want to be soft on who is proscribed, but we have to be careful that we do not undermine what is meant by terrorism by turning to those people who are holding up the sign and treating them as though they are terrorists. That does not help anybody. I have spoken to a lot of young people and I have found that they are now cynical about the label “terrorist” precisely because of those people who are being arrested under an anti-terrorist proscription for holding up a sign. I cannot see that that helps. In the meantime, it does not make any sense for that to be the case, while the IRGC is still not proscribed. That seems completely contradictory.
The damage that this is doing is immense. The insurance example was given by the noble Lord, Lord Walney, but I know that people from Gail’s coffee shops have been specifically targeted. I was told by some young people that if you go to Gail’s, they have got it in for you—they are going to draw a map of Gail’s coffee shops. What has happened here is quite serious. This is very different from going out on a protest in support of Palestine or whatever else. We have to acknowledge that there is a new world with new problems and new legislation is needed.
Just finally, I commend the noble Baroness, Lady Doocey, for her amendment. I am not sure entirely what I think about it but, importantly, she drew our attention to the lessons of Southport and the fact that, whatever happens—and as the Minister rightly said yesterday—the Government need to be given time to read the inquiry’s report and decide what to do. I hope that some of the points that the noble Baroness, Lady Doocey, raised, particularly in relation to how youth diversion orders will be used and the need for different agencies to talk to each other, were very powerful and important. Her comments could at the very least feed into the Government’s discussions in relation to not just learning lessons from Southport but preventing it happening again.
Lord Marks of Henley-on-Thames (LD)
My Lords, I entirely accept the point made by the noble Lord on the Woolsack about the inadequacy of an apology for late arrival in the Chamber, and I am bound to say it is not something I have ever had to make before, but I was late into the Chamber today and I apologise to the House, after others, that I was late for the start of this group. I will speak briefly, if the House permits. The Motion from the noble Lord, Lord Walney, to permit designation—
Captain of the King’s Bodyguard of the Yeomen of the Guard and Deputy Chief Whip (Baroness Wheeler) (Lab)
I stress that the Deputy Speaker made it clear that people who arrive late for the debate are not allowed to speak. I think it is difficult for the noble Lord, having heard the explanation and the discussion, to stand up and speak. I am sorry.
Lord Pannick (CB)
We are a self-governing House. If it is the will of the House that the noble Lord, Lord Marks, speak briefly from the Front Bench, I suggest that we should hear him.
Lord Marks of Henley-on-Thames (LD)
My Lords, I hope I will be permitted to speak briefly. I have followed the arguments on all these matters throughout these proceedings.
Baroness Falkner of Margravine (CB)
My Lords, my understanding of the Companion is that the noble Lord, Lord Pannick, is correct in what he said: if it wishes, the House can set aside the Companion and hear from a noble Lord, but in that case a Motion has to be put and voted upon.
Lord Walney (CB)
My Lords, I do not know whether this is helpful in any way—probably not—but as the proposer of the Motion, I really would appreciate hearing what the noble Lord on the Front Bench has to say on it.
Lord Marks of Henley-on-Thames (LD)
My Lords, on that basis, unless I am stopped, I will speak briefly.
On the first Motion I was going to address, that of the noble Lord, Lord Walney, we have a great deal of sympathy for his proposal. Indeed, we would go so far as to say that it seems like a good idea. Its principal appeal is that it would permit a step falling short of proscription of an organisation, which would not involve anyone peacefully expressing support for that organisation at a demonstration or a protest being arrested, charged and possibly convicted of an offence under the Terrorism Act. In that, I fully agree with the points made by the noble Viscount, Lord Hailsham, and the noble Baroness, Lady Fox of Buckley.
I understand that the noble Lord, Lord Walney, does not intend to press his Motion to a vote, and we on these Benches think he is right in that because our reservations remain. We abstained on Report, and our principal reason for doing so was that the amendment leaves in place the present law on proscription and does not oblige the Government to make a designation of a group as an extreme criminal protest group where the existing threshold for proscription is met, so we would be left with the position that the Government would have two alternative designations as options: one with consequences that we consider to be undesirable, far too severe and damaging; and the other with far less serious consequences. We think that risks introducing an element of muddle and a lack of clarity into this very difficult but important area of the law. It is important for civil liberties and the rights of the citizen, and important for the control of terrorism and of public criminal behaviour more generally.
As the noble Lord, Lord Pannick, mentioned, we await the decision of the Court of Appeal and any possible appeal to the Supreme Court on the proscription of Palestine Action, and we also await the review of public order law by the noble Lord, Lord Macdonald of River Glaven. We are not persuaded that it would be sensible now to introduce a compromise that would address a very real difficulty with the Terrorism Act as it stands but would leave the law uncertain. It is better by far, we suggest, to wait and trust that a more comprehensive and credible solution to the difficulties presented by the present law can be found that does not involve leaving the law unamended and available on proscription alongside an alternative system introduced as a partial answer only to the weaknesses of the law as it stands. We applaud the noble Lord, Lord Walney, for the work he has done on this and we think he has a sensible way forward, but it needs further work and we agree that it should not be pressed at this stage.
On Motion S1, I have nothing to add to what was said by my noble friend Lady Doocey, except that these Benches are fully behind everything she said in approving of her Motion.
Lord Davies of Gower (Con)
My Lords, I thank the noble Baroness, Lady Doocey, for returning with her amendment. I understand the Government are offering to include alternative interventions in youth diversion order guidance, but I agree with the noble Baroness that these considerations should be consistently applied to ensure proportionality. We therefore support the original measure.
Motion U1, standing in my name, returns once again to the issue of proscription of the Islamic Revolutionary Guard Corps, the IRGC. I am sure that the Minister will once again attempt to use the fact that the last Government did not proscribe the IRGC as a justification for this Government’s position, and I recognise that fact. But the international situation is radically different now from that when we left government. Before this war even started, it was clear that the Iranian regime was ramping up its aggressive activities. At home, it wilfully oversaw the murder of over 40,000 protestors. Overseas, it continued to extend its influence through its backing of terrorist cells. In the UK alone, in 2025, security services tracked more than 20 potentially lethal Iran-backed plots.
This threat has only been exacerbated following the outbreak of war. Just last month, an Iranian man suspected of being a regime spy was arrested for attempting to break into a nuclear naval base in Scotland. We have seen the streets of our capital city filled with regime apologists on so-called Al-Quds day, leading to 12 arrests and countless lost police hours. Proscribing the IRGC would not only give the police more powers to counteract these actions but would send a signal that we do not bow to pressure from oppressive and authoritarian regimes.
I once again anticipate that the response from the Minister will be that this is constantly kept under review—but that is now not good enough. We know what this group is capable of, especially when it has the apparatus of an OPEC state behind it, and now with the current war, we must strengthen our resolve further. The Iranian regime is blocking the Strait of Hormuz, erratically attacking neighbours and, most importantly, influencing—if not sanctioning—potential attacks on British soil.
Quite independently of our national approach to the United States, this Iranian regime is one for which we should have no regard and no tolerance. The Government must now be pragmatic. Their policy must now reflect the international situation—they must undertake this review and proscribe the IRGC. If the Minister still does not agree with this conclusion, I will seek to test the opinion of the House.
Lord Hanson of Flint (Lab)
I am grateful for the discussion we have had to date on these matters. As I made clear in my opening remarks—for those who heard them, at least—the Government cannot accept Amendment 311 as drafted. I fully appreciate the work of the noble Lord, Lord Walney, on these issues, but as I have set out to the House already, and as I set out to the noble Viscount, Lord Hailsham, in particular, the independent reviewer has made clear his view that this would undermine the existing proscription regime. The noble Lord, Lord Pannick, also recognised that, and I say also to the noble Lord, Lord Marks, that this was the position. With the review of the noble Lord, Lord Macdonald, coming forward, it is right that this amendment not be accepted today. I particularly welcome the recognition of the noble Lord, Lord Walney, of that. That is not to undermine the arguments he has made, but we are where we are at the moment.
On Amendment 359, I stress that both this and previous Governments do not comment on organisations that are being assessed for proscription. As I mentioned in my opening remarks—for those who heard them—we have sanctioned 550 Iranian individuals, including members of the IRGC, so we are holding the Iranian regime to account. We have also put them in the foreign influence registration scheme.
If I may say so, I take objection to the suggestion from the noble Lord, Lord Marks, that our not proscribing the IRGC somehow supports the Iranian regime—it does not. I will not accept that we should give a running commentary on proscription. With due respect to the noble Lords, Lord Davies of Gower and Lord Marks of Henley-on-Thames, they have not had intelligence in front of them on these issues from the intelligence services. We are making judgments as a Government, and we are not going to give a running commentary on what and when we proscribe, because that is a very dangerous position to take.
I remind the House—without commenting on the IRGC in particular—that any eventual proscription order on anybody is voted on by both Houses of Parliament, where it can be tested at that time. I am not in a position today to give a running commentary on the possible proscription of the IRGC, nor will I accept in principle the fact that both Opposition Front Benches think it right to do so. That may be their view, but the Government have to take a view on these matters in due course. It is not for us to give a running commentary on those matters. I say that to the House as a whole.
I stress again that I understand and accept the concerns that the noble Baroness, Lady Doocey, put before the House today. We will make it clear in statutory guidance that authorities must consider a range of options and interventions before deciding whether to apply for a youth diversion order. The noble Baroness, Lady Fox of Buckley, also stressed that it was important to do so. I stress to both noble Baronesses that the police are under a duty to consult multi-agency youth offending teams, which comprise health, education, probation and police services. I am happy to share a draft of the guidance with the noble Baroness in due course, but at the moment I cannot accept the amendment.
I am grateful to the noble Baroness, Lady Foster, for her work on her amendment on glorifying terrorism, and for giving her own personal experiences. It is very difficult to do that, and I understand the circumstances that she and others find themselves in. I support the comments of the noble Lord, Lord Polak, on glorification in general. On the incident in Finchley that has been mentioned today, individuals are under arrest and in custody for the alleged offence. We should obviously allow the police to do their job and determine whether charges should be put forward to the CPS for consideration. None the less, that type of incident—whether or not the individuals under arrest are responsible—is simply not acceptable. The Government and others should stand with the community as a whole.
I was pleased to hear and welcomed the contributions of the noble Lord, Lord Walney, and the noble Baroness, Lady Foster, but I cannot accept the Motions in the names of the noble Lord, Lord Davies, and the noble Baroness, Lady Doocey. I ask—in anticipation and hope rather than aspiration and agreement—that they be content not to press their Motions. In the meantime, I beg to move my Motion N, and I hope the House will agree to it.
Lord Walney (CB)
My Lords, I thank everyone for their insight on and support for the principle behind this matter, which is that urgent action is needed. In the light of what has been said, I am reluctantly content to withdraw my Motion. In doing so, I will leave the Minister with two thoughts.
First, this will not go away. I hope the Minister will take away the urgent need to deal with this matter and bring forward a solution—this debate has shown that that is possible—in order to address the concerns set out in this Chamber and outside it. Secondly, I hope he will agree to meet with me and others to look in the meantime at an array of protections for the affected businesses, in advance of any legislative change. With that, I beg leave to withdraw the motion.
Lord Hanson of Flint
That this House do not insist on its Amendment 333 and do agree with the Commons in their Amendment 333A in lieu.
“(5) After section 83 insert—
“83A Power of Secretary of State to change maximum duration of closure orders
(1) The Secretary of State may by regulations amend this Chapter so as to alter—
(a) the maximum period that a closure order under section 80 may specify as the period for which access to the premises is prohibited;
(b) the maximum period for which a closure order may be extended under section 82;
(c) the maximum duration of a closure order extended under section 82.
(2) Regulations under this section may make different provision for different purposes.
(3) Before making regulations under this section, the Secretary of State must consult such persons as the Secretary of State considers appropriate.”
(6) In section 182(2) (orders and regulations), after paragraph (b) insert—
“(ba) regulations under section 83A,”.”
Lord Hanson of Flint (Lab)
My Lords, I have already spoken to Motion P. I beg to move.
Lord Hanson of Flint
That this House do not insist on its Amendmentusb 334, to which the Commons have disagreed for their Reason 334A.
Lord Young of Acton
Leave out from “House” to end and insert “do insist on its Amendment 334.”
Lord Young of Acton (Con)
My Lords, I urge noble Lords to support Amendment 334 and declare my interest as the director of the Free Speech Union. The Minister will tell noble Lords that the amendment is unnecessary because the College of Policing and the National Police Chiefs’ Council have recommended the abolition of the non-crime hate incident regime and the Government have amended the Bill to repeal the statutory NCHI code of practice.
However, we knew all this when we voted for the amendment on Report. The Minister stood where he is about to stand and said all this a few weeks ago. The amendment repealing the code of practice had already sailed through unopposed. He told us what was going to be in the joint report and, lo, that is what is in the joint report. This was all priced in when this House decided to vote for the amendment. Nothing has changed, so there is no reason why any noble Lords should change their minds about supporting it.
I have already set out the case for the amendment, which I remind noble Lords was co-sponsored by the noble Lord, Lord Strasburger, a Liberal Democrat, and the noble Lord, Lord Hogan-Howe, a former Metropolitan Police commissioner, so I will not waste your Lordships’ time by repeating those arguments, but I would just like to make a couple of points.
The joint report, while welcome, has left some loose ends, such as: what will become of historic non-crime hate incidents sitting on police databases? Is there a risk that they will be disclosed in enhanced criminal record checks if a person applies for a job as a teacher or carer, as there was under the old regime? I remind noble Lords that one person had a NCHI recorded against his name for whistling the theme tune to “Bob the Builder” every time he saw his neighbour. Another was recorded for someone claiming that a newly elected independent councillor cared more about the people of Gaza than the people in his ward. That comment was recorded as a non-crime hate incident. The joint report had nothing to say about what would become of these historic NCHIs, and there are still tens of thousands, if not more, sitting on police databases.
Our amendment made some very modest demands to deal with this outstanding problem. The first version, which we tabled in Committee, asked for all historic NCHIs to be deleted, but at a meeting between the co-sponsors of the amendment and Sir Andy Marsh, the CEO of the College of Policing—and I am grateful to the Minister for arranging that meeting—we were told that for the police to go through all their databases and delete historic NCHIs would be a huge administrative undertaking and a waste of the police’s time.
We accepted that and revised our amendment. The version before noble Lords and on Report asks only that any NCHIs that the police come across in the course of their work be deleted, and not all of them but just those that do not meet the new, higher recording threshold of the successor regime. It would also ensure that if a member of the public discovered that an NCHI had been recorded against them via a subject access request—I remind noble Lords that members of the public are not always informed when they have NCHIs recorded against their names—and they requested that the NCHIs be deleted, the police acted on that request, provided that the NCHIs in question did not meet the new, higher recording threshold of the successor regime. These are modest demands. The noble Lords, Lord Hogan-Howe and Lord Strasburger, and I listened to Sir Andy Marsh, and we came up with what we believe is a reasonable compromise.
The same is true when it comes to disclosure. Originally, our amendment asked the police to stop disclosing non-crimes in enhanced DBS checks altogether. No one, we thought, should be prevented from getting a job because they have committed a non-crime. But Sir Andy Marsh persuaded us that there are some very limited circumstances in which chief constables should disclose information about non-crimes in enhanced DBS checks: things employers should know—a point also made by several noble Lords during the debate in Committee. We accepted that too. So our amendment—the one we voted for on Report and which is before this House today—seeks to limit disclosure only to those historic NCHIs that do not meet the new, higher recording threshold. It is, we think, another reasonable compromise.
We listened to the College of Policing. We listened to noble Lords who expressed reservations about our original amendment. We listened to the Minister when he made valid points in Committee. We listened, and we revised our amendment accordingly. I think the fact that what we were asking for is so modest and so reasonable is why our amendment won a Division in this House. It won not because it attracted any support from Labour or the Lib Dems but because it commanded such wide support among the Cross-Benchers and the non-affiliated, who I believe recognised the reasonableness of what we were asking for.
However, the Government have not listened. They have not tabled an amendment in lieu or offered any concessions in the run-up to this debate. They have just cast our amendment aside and have dismissed the concerns of this House as beneath consideration. They have acted, in a word, unreasonably. I think I now have no choice but to move this amendment again so that the Government will be forced to engage with our concerns and to come back with their own reasonable compromise. I beg to move.
The Deputy Speaker (Lord Russell of Liverpool) (CB)
The noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.
Baroness Brinton (LD) [V]
My Lords, the noble Lord, Lord Young of Acton, has set out his reasons for insisting on his Motion Q1, which would delete records that the police hold non-crime hate incidents in certain circumstances which he outlined, even when the police had a concern about the pattern of behaviour and that it might lead to a crime.
I take issue with the comments that the noble Lord has made in that the whole Motion talks only about this very narrow area of what should be held and reviewed. The concerns that we have from these Benches are about the repetition of proposed new subsections (1) and (2), which say that non-crime hate incidents
“must not be recognised as a category of incident by any police authority in the United Kingdom”,
and that:
“No police authority or police officer may record, retain or otherwise process any personal data relating to a NCHI”.
Noble Lords will remember that we were lucky enough to have the noble Lord, Lord Herbert, with us after the College of Policing report was published, and he pointed out that there is a balance between free speech and the targeting of vulnerable people. Other noble Lords spoke movingly about this balance too, including the noble Baroness, Lady Lawrence, from her and her family’s own experience. So from these Benches, we were pleased when the Government laid their amendments on Report, which set out that balance between freedom of speech, which must be protected, and threats to vulnerable people. Their proposal to use anti-social behaviour mechanisms to record in the future is understandable and appropriate, and we hope that it will work out well. We will wait and see whether it really works.
We on these Benches believe that the combination of the Government’s amendment that is now in the Bill and the new guidance in the College of Policing report provide the balance that is needed to ensure that there is freedom of speech. However, the police will have the capability under the anti-social behaviour legislation to protect the most vulnerable in our community, especially if they are targeted by someone whose behaviour is escalating and the course of that pattern of behaviour could in itself become a crime such as harassment or, even worse, just progress more severely into an actual crime.
If there was nothing on any records up to the moment that a crime was committed, the police would not have been involved. For many vulnerable people who have harassment and other things going on, waiting that long deters and delays police action. There is a difference between that and passing the information on about the files. I believe that the Government’s amendments have dealt with that. On these grounds, we will not support Motion Q1.
Lord Davies of Gower (Con)
My Lords, I thank my noble friend Lord Young of Acton for returning to the important issue of NCHIs. Our position as a party has not changed. With 60,000 annual police hours and a quarter of a million cases recorded, which is over 65 a day, this is the extent to which our police forces are having to go to record non-crimes.
The Government have stated that they are not accepting my noble friend’s amendment, as the College of Policing has now published its review into the instrument, complete with recommendations. I welcome this review and that the Government have accepted its conclusions, but it bears no requirements for action. Similarly, while the statutory code of practice addressing the recording of NCHIs has been revoked, there is little reassurance that this will be replaced by a more satisfactory system. This amendment seeks to commit the Government to necessary action now. This measure needs to be on the statute book. Should my noble friend wish to test the opinion of the House, we will wholly support him.
My Amendment 339B in lieu is a redrafted version of the amendment that I tabled on Report concerning the investigation of police officers for misconduct. I thank the IOPC for its engagement with me concerning this amendment. The version before your Lordships now is a more comprehensive drafting, but the underlying point remains the same. Where police officers are acquitted of criminal charges, all misconduct proceedings concerning that specific offence should be dropped.
I want to be clear about how this amendment would operate in practice. It would not mean that acquittal would shield an officer from any potential misconduct proceedings. For example, if the police officer was acquitted of manslaughter, he could still be liable for misconduct proceedings if due process was not followed on a related procedural matter such as filling in correct paperwork concerning the incident. However, the amendment would mean that the police officer, where he is acquitted of criminal charges concerning the use of force, could not then be subject to misconduct proceedings on that same question. As I said on Report, it is wrong that in the absence of my amendment, police officers can be investigated by the IOPC, referred to the CPS, dragged through the courts, acquitted only then to be reinvestigated. If it is the Minister’s intention to oppose this amendment, I will seek to test the opinion of the House.
Lord Hanson of Flint (Lab)
My Lords, I moved Motion Q at the beginning of the debate but was, I confess, slow out of the blocks. I should have spoken to Motion Q before Motion Q1 was moved, but I was concentrating on the Marshalled List and missed my opportunity. But the principles are the same.
The Government cannot support Motion Q1 but will support Motion Q, because there has been careful consideration on the recording of non-crime hate incidents since Report. I have appreciated the opportunity to engage formally and informally with the noble Lord. However, he will know that since your Lordships’ House last considered this matter on 31 March, the College of Policing and the National Police Chiefs’ Council published their joint review of non-crime hate incidents, a review that was commissioned by the UK Government as well. The review recommended ending the current system and replacing it with a new national standard for incident recording and assessment. Under that approach, non-crime hate incidents would no longer exist as a stand-alone category. Instead, hate-related behaviour short of the criminal threshold would be recorded only where there are clear policing purposes within the established anti-social behaviour framework. The threshold for recording would be higher, more tightly defined and supported by trained police assessment and triage practices.
Lord Hanson of Flint (Lab)
I am very relaxed about that, because this side of the House—and I now see the support of Liberal Democrats—are happy to ensure that we have changed the regime, but we are also keeping information that will help safeguard and protect. If the noble Lord wishes to vote against that today and remove it, then it would be on his head if any consequences come from that.
Lord Young of Acton (Con)
I thank the Minister for giving away. I think the argument he has just made was a bit of a non sequitur. The only thing asked for in this amendment is that any NCHIs that the police come across in the course of their work which would not meet the new higher recording threshold be deleted. If they would meet the new higher recording threshold—if there is a legitimate policing purpose for retaining that information—then that would not be stopped by this amendment. The College of Policing and the joint council have agreed that the old regime is not fit for purpose and the recording threshold was far too low—which is why, as my noble friend said, over 65 a day have been recorded on average over the last 10 years. Given that, why not allow for those NCHIs which do not meet the new higher recording threshold—not all NCHIs, just those—to be deleted?
Lord Hanson of Flint (Lab)
I am not willing to take that risk. It is a matter for noble Lords opposite. We are making a recommended change—we have accepted every recommendation from the College of Policing—but such an approach from the noble Lord risks removing information that may still be relevant. I am not willing to take that risk.
The noble Lord’s amendment also, if I may say so, overstates the impact of non-crime hate incidents on Disclosure and Barring Service checks. Such records do not appear on basic or standard DBS certificates. They can be disclosed only on an enhanced check, and only where a chief officer reasonably considers the information to be relevant, applying statutory Home Office guidance and strict tests of seriousness, relevance and proportionality. Enhanced checks are used solely for the most sensitive roles involving children or vulnerable adults, and there is no evidence of systemic or inappropriate use of non-crime hate incident information in that context.
I pray in aid that the House of Commons has disagreed with the noble Lord’s amendment for clear reasons. Its objectives are being met through the accepted review undertaken by police experts, and a blanket deletion requirement would be potentially harmful, removing information that—I say this again, and slowly—may be relevant to safeguarding vulnerable persons and communities. Everybody in this House, every noble Lord who walks through a Lobby today to support the noble Lord, Lord Young of Acton, is going to be potentially—I emphasise “potentially”—removing information that may still be relevant to safeguarding vulnerable persons and communities.
I am not willing to do that. I urge noble Lords to recognise the Government’s approach, which has effected and is effecting real change. We have accepted the recommendations of the College of Policing, chaired by the noble Lord, Lord Herbert, who is a member of the Conservative Party and a Peer with that knowledge.
Turning to Motion R and Amendment 339, the Government take police accountability very seriously. We believe it is right to strike a balance between allowing appropriate scrutiny of the police and ensuring that they can carry out their powers. I know that noble Lords opposite agree with that. We made a commitment in the police reform White Paper to commission an independent end-to-end review of the police accountability system. We will confirm who will lead this review and publish the terms of reference very shortly. I assure the noble Lord, Lord Davies of Gower, that he will have input into that review.
We cannot support Amendment 339 as it stands because it would introduce a blanket presumption that any case involving a police officer that has resulted in an acquittal in the criminal court and subsequently been closed should not be reopened to go forward to misconduct proceedings. Such a blanket presumption would not be appropriate in all cases—for example, in allegations of serious wrongdoing, such as sexual offences or corruption by police officers. Anybody in this House today who votes for Motion R1 and the noble Lord’s Amendment 399B will be leaving open the opportunity that allegations of serious wrongdoing, such as sexual offences or corruption by police officers, will be potentially not able to be taken.
We will have honest disagreements in this House, but I say to noble Lords, particularly those opposite—and I am grateful for the support from the Liberal Democrats—that the changes we are making are important and effective. There is a risk in both amending Motions of potential safeguarding issues and compromise for the future, around not being able to look at cases of sexual abuse and others by the police. I am very happy to have a debate about that, but I suggest to my noble friends, and to anybody who wishes to join us, that we vote those Motions down and support Motion Q, in my name.
Viscount Hailsham (Con)
On Motion R1, I agree with the Minister, not with my noble friend Lord Davies. It is important to remember—
Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)
We have wound the debate up, and apparently the noble Viscount was not present at the start of the debate. We have had the wind-up by the Minister. We now need to proceed to divide or not divide the House.
Lord Young of Acton (Con)
The risk we draw attention to is that information has been recorded against people’s names that the police would not today record under the new regime because they regard it as posing no risk. That is a risk that I and my noble friends are not prepared to take, so I would like to test the opinion of the House.
Lord Hanson of Flint
That this House do not insist on its Amendment 339, to which the Commons have disagreed for their Reason 339A.
Lord Hanson of Flint (Lab)
My Lords, I have already spoken to Motion R. I beg to move.
Motion R1 (as an amendment to Motion R)
Lord Davies of Gower
At end insert “, and do propose Amendment 339B in lieu—
“IOPC investigations where officer acquitted
(1) The Police Reform Act 2002 is amended in accordance with subsections (2) to (5).
(2) In section 13B—
(a) in subsection (1), at end insert—
“but this is subject to the exception in section 13BA.”;
(b) in subsection (2), at beginning, for “The” substitute “Unless the exception in section 13BA applies, the”.
(3) After section 13B, insert—
“13BA No re-investigation on acquittal for the same conduct
(1) Where this section applies, the Director-General may not make a determination under section 13B(2) to re-investigate the complaint, recordable conduct matter or DSI matter.
(2) This section applies where—
(a) the Director-General, appropriate authority or relevant review body (as the case may be) has made a determination under paragraphs 23(2)(c), 24(2)(b) or 25(4G) of Schedule 3,
(b) as a result of the determination mentioned in paragraph (a), the Director of Public Prosecutions has brought criminal proceedings against the relevant person, and
(c) the relevant person has been acquitted in those criminal proceedings.
(3) The exception in subsection (1) does not apply only if—
(a) the relevant authority has come into possession of new and compelling evidence relating to the conduct that was the subject of the investigation, and
(b) the relevant authority is of the reasonable opinion that the new evidence would, if considered, be likely to lead to a finding of misconduct or gross misconduct.
(4) In subsection (3)—
(a) evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related);
(b) evidence is compelling if—
(i) it is reliable,
(ii) it is substantial, and
(iii) in the context of the outstanding issues, it appears highly probative of the case against the acquitted person.
(5) For the purposes of subsection (4)(b)(iii), the outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and, if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal related.
(6) For the purposes of subsection (3), it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person.
(7) In this section—
(a) “relevant person” means the person to whose conduct the investigation related;
(b) “relevant authority” means the Director-General, appropriate authority or relevant review body (as the case may be).”
(4) After paragraph 24C of Schedule 3, insert—
“Investigation where person acquitted in criminal proceedings
24D(1) This paragraph applies where—
(a) an investigation of a complaint, conduct matter or DSI matter (“the index investigation”) under paragraphs 16, 18 or 19 has concluded,
(b) the final report has been submitted to the relevant authority under paragraph 22,
(c) the relevant authority has made a determination under paragraphs 23(2)(c), 24(2)(b) or 25(4F),
(d) as a result of the determination mentioned in sub-paragraph (b), the Director of Public Prosecutions has brought criminal proceedings against the relevant person, and
(e) the relevant person has been acquitted in those criminal proceedings.
(2) In this paragraph—
(a) “relevant person” means the person to whose conduct the index investigation related;
(b) “relevant authority” means the Director General, appropriate authority or relevant review body (as the case may be).
(3) Where this paragraph applies, the relevant authority may not—
(a) initiate a new investigation,
(b) re-open an investigation,
(c) continue an investigation, or
(d) order a re-investigation under paragraph 25,
against the relevant person in relation to the same complaint, conduct matter or DSI matter that was the subject of the index investigation.
(4) Sub-paragraph (3) does not apply only if—
(a) the relevant authority has come into possession of new and compelling evidence relating to the conduct that was the subject of the investigation, and
(b) the relevant authority is of the reasonable opinion that the new evidence would, if considered, be likely to lead to a finding of misconduct or gross misconduct.
(5) In sub-paragraph (4)—
(a) evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related);
(b) evidence is compelling if—
(i) it is reliable,
(ii) it is substantial, and
(iii) in the context of the outstanding issues, it appears highly probative of the case against the acquitted person;
(6) For the purposes of sub-paragraph (4)(b)(iii), the outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and, if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal related.
(7) For the purposes of sub-paragraph (4), it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person.”
(5) In paragraph 25—
(a) after sub-paragraph (4D) insert—
“(4DA) The Director-General may not direct that the complaint be re-investigated under sub-paragraph (4C)(b) if paragraph 24D applies in relation to that investigation.”;
(b) after sub-paragraph (4E) insert—
“(4EA) The local policing body may not make a recommendation to the appropriate authority that the complaint be re-investigated if paragraph 24D applies in relation to the conduct to which the investigation related.”
(6) The Police (Conduct) Regulations 2020 are amended in accordance with subsections
(7) to (10).
(7) In regulation 23 (referral of case to misconduct proceedings)—
(a) in paragraph (3)—
(i) in sub-paragraph (b), for “(whatever the outcome of those proceedings)”, substitute “and the officer concerned has been found guilty”;
(ii) before second “regulation” insert “regulation 23A,”;
(b) in paragraph (9), after “10(3)” insert “and regulation 23A”.
(8) After regulation 23, insert—
“Prohibition on misconduct proceedings where officer has been acquitted
23A.—(1) This regulation applies where—
(a) the appropriate authority has made a determination that misconduct proceedings should be brought against the officer concerned under regulation 23(1)(b), (2)(c) or (3),
(b) the misconduct proceedings have been suspended by virtue of regulation 10(3),
(c) any criminal proceedings have concluded, and
(d) the officer concerned has been acquitted in those criminal proceedings.
(2) This regulation also applies where—
(a) the Director General has given the appropriate authority a direction to bring misconduct proceedings against a person under paragraph 23(5A)(e) of Schedule 3 to the 2002 Act,
(b) the appropriate authority has brought misconduct proceedings against the officer concerned in compliance with the direction mentioned in sub-paragraph (a),
(c) those misconduct proceedings have been suspended by virtue of regulation 10(3),
(d) any criminal proceedings have concluded, and
(e) the officer concerned has been acquitted in those criminal proceedings.
(3) Where this regulation applies—
(a) regulations 23(3) and (9) do not apply,
(b) the Director General must withdraw the direction to the appropriate authority to bring misconduct proceedings against the officer concerned, and
(c) the appropriate authority must direct that the misconduct proceedings be withdrawn.
(4) The Director General must withdraw the direction to bring misconduct proceedings under paragraph (3)(b) as soon as the Director General receives notification that the officer concerned has been acquitted in any criminal proceedings.
(5) The appropriate authority must terminate the misconduct proceedings under paragraph (3)(c) as soon as the Director General receives notification that the officer concerned has been acquitted in any criminal proceedings.
(6) Paragraph (3) does not apply only if—
(a) the appropriate authority or the Director General has come into possession of new and compelling evidence relating to the conduct that was the subject of the investigation, and
(b) the appropriate authority or the Director General is of the reasonable opinion that the new evidence would, if considered, be likely to lead to a finding of misconduct or gross misconduct.
(7) In paragraph (6)—
(a) evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related);
(b) evidence is compelling if—
(i) it is reliable,
(ii) it is substantial, and
(iii) in the context of the outstanding issues, it appears highly probative of the case against the acquitted person;
(8) For the purposes of sub-paragraph (7)(b)(iii), the outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and, if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal related.
(9) For the purposes of paragraph (6), it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person.”
(9) In regulation 49 (referral of case to accelerated misconduct hearing)—
(a) in paragraph (3)—
(i) in sub-paragraph (b), omit “(whatever the outcome)”,
(ii) after “determination,” insert “subject to regulation 49A”;
(b) in paragraph (4), after “10(3)”, insert “and 49A”.
(10) After regulation 49, insert—
“Prohibition on referral of case to accelerated hearing where officer acquitted
49A.—(1) This regulation applies where—
(a) the appropriate authority has made a determination that is within paragraph (2),
(b) the appropriate authority has referred the case to an accelerated misconduct hearing under regulation 49(4) or (7),
(c) the accelerated misconduct hearing has been suspended by virtue of regulation 10(3),
(d) any criminal proceedings have concluded, and
(e) the officer concerned in those criminal proceedings has been acquitted.
(2) A determination is within this paragraph if—
(a) it is a determination that the special conditions are satisfied under regulation 49(1), or
(b) it is a further determination that the special conditions are satisfied under regulation 49(3).
(3) Where this regulation applies—
(a) regulations 49(3) and (7) do not apply, and
(b) the appropriate authority must withdraw the referral of the case to accelerated misconduct proceedings.
(4) Paragraph (3) does not apply only if—
(a) the appropriate authority has come into possession of new and compelling evidence relating to the conduct that was the subject of the investigation, and
(b) the appropriate authority is of the reasonable opinion that the new evidence would, if considered, be likely to lead to a finding of misconduct or gross misconduct.
(5) In paragraph (4)—
(a) evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related);
(b) evidence is compelling if—
(i) it is reliable,
(ii) it is substantial, and
(iii) in the context of the outstanding issues, it appears highly probative of the case against the acquitted person;
(6) For the purposes of sub-paragraph (5)(b)(iii), the outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and, if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal related.
(7) For the purposes of paragraphs (4) to (6), it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person.”””
Lord Davies of Gower (Con)
My Lords, I beg to move and test the opinion of the House.
Lord Hanson of Flint
That this House do not insist on its Amendment 342 and do agree with the Commons in their Amendment 342A in lieu.
“(1A) The guidance may in particular include guidance about—
(a) matters to be taken into account by chief officers of police before making an application for a youth diversion order, including alternatives to making an application;
(b) how chief officers of police are to comply with their duties to consult under section 174.”
Lord Hanson of Flint (Lab)
My Lords, I have already spoken to Motion S, and I beg to move.
Motion S1 (as an amendment to Motion S)
Baroness Doocey
Leave out from “House” to end and insert “do insist on its Amendment 342.”
Baroness Doocey (LD)
My Lords, I move Motion S1, and I would like to test the opinion of the House.
Lord Hanson of Flint
That this House do not insist on its Amendment 357, to which the Commons have disagreed for their Reason 357A.
Lord Hanson of Flint (Lab)
My Lords, I have already spoken to Motion T and I beg to move.
Lord Hanson of Flint
That this House do not insist on its Amendment 359, to which the Commons have disagreed for their Reason 359A.
Lord Hanson of Flint (Lab)
My Lords, I have already spoken to Motion U—there is a pattern here—and I beg to move.
Motion U1 (as an amendment to Motion U)
Lord Davies of Gower
Leave out from “House” to end and insert “do insist on its Amendment 359.”
Lord Davies of Gower (Con)
My Lords, I listened very carefully to what the Minister had to say about the intelligence that the Government have, but I think the evidence has been very clear, on our news channels, about the terror that the IRGC has caused in its own country. The threat to the UK from the IRGC is evident to all but the Government, it seems, so I wish to test the opinion of the House.
Lord Hanson of Flint
That this House do not insist on its Amendments 360, 368, 369, 370, 371 and 372 and do agree with the Commons in their Amendment 372A in lieu.
“Section (Power to amend Online Safety Act 2023: AI): duty to make progress report
(1) The Secretary of State must, no later than 31 December 2026, lay before Parliament a report about the progress that has been made towards making regulations under section 216A of the Online Safety Act 2023 (power to amend Act in relation to illegal AI-generated content).
(2) Subsection (1) does not apply if a draft of a statutory instrument containing regulations under that section is laid before Parliament before 31 December 2026.”
Lord Hanson of Flint (Lab)
My Lords, we return to the extremely important subject of the regulation of chatbots, and I am grateful to all those who have engaged constructively on this issue throughout the Bill’s passage. We all share a determination to keep people, especially children, safe in what is a fast-changing online world. Noble Lords from across the House, but most notably the noble Baroness, Lady Kidron, to whom I pay tribute, have spoken powerfully about the risks arising from AI chatbot services, particularly for children, and about the pace at which these technologies are being deployed.
On many occasions, the noble Baroness has raised her concerns that there are gaps in the Online Safety Act regarding unregulated AI chatbots. The Government agree with this assessment, which is why we tabled on Report Amendment 367, to which the House has agreed, granting the Government the power to address that gap. The Online Safety Act provides a strong and workable foundation for tackling illegal content online; updating it to bring unregulated chatbots in scope is the most effective way of ensuring that these risks are addressed quickly and effectively. Building on the Act, rather than creating an overlapping and duplicative criminal regime, will be the most effective route to enforcing clear rules. Our power will ensure that all relevant services, including those operating from overseas, have to comply with illegal content duties, and will place them in scope of Ofcom’s considerable enforcement toolkit where they fail to act.
I also recognise the strength of feeling expressed in the House about the need for urgency and appropriate scrutiny. Our Amendment 372A now includes a clear duty on the Secretary of State to lay before Parliament, no later than 31 December 2026, a report on the progress made towards making regulations with this power. This report will set out what work the Government have undertaken to develop and deploy the regulations. That is a clear and concrete demonstration of the Government’s intention to close this gap—and we will act quickly to do that.
In recognition of the valuable scrutiny that Parliament would provide of these powers, I also confirm that the Government intend to share draft regulations with the relevant Select Committees in both Houses, opposition spokespeople and the noble Baroness, Lady Kidron, in advance of them being laid, for any constructive—and, I hope, positive—comments. These powers will create a much clearer and more effective approach than the criminal offences proposed by the noble Baroness, Lady Kidron. Creating a new criminal regime would create new legal uncertainty and inconsistent enforcement, and, crucially, it would not apply overseas.
The Government’s concern is that the proposed criminal framework risks being disproportionate, legally uncertain and, in practice, less effective than a clear regulatory approach under the Online Safety Act. It would create uncertainty about what compliance looks like and risk capturing those acting in good faith, while failing to focus enforcement on the most culpable for high risk conduct. Most importantly, criminal offences of this kind would, in practice, be far less effective against overseas services, which is precisely where we see some of the greatest risks. One of the strengths of the Online Safety Act framework is its reach and the regulator’s ability to take action in ways that are designed to be effective across borders.
The Government are putting forward a coherent package to address these risks. We have a clear route to close regulatory gaps and to ensure that unregulated AI services can be brought within scope of the Online Safety Act. We have strong enforcement mechanisms through Ofcom. We have a commitment not only to action but to appropriate parliamentary scrutiny in the exercise of these powers. Strengthening our existing approach will be far preferable to the confusion and delay of creating a new parallel regime. I hope that noble Lords will support Amendment 372A. I beg to move Motion V.
Motion V1 (as an amendment to Motion V)
Baroness Kidron
Leave out from “House” to end and insert “do insist on its Amendments 360, 368, 369, 370, 371 and 372.”
Baroness Kidron (CB)
My Lords, the supporters of Motion V1 have decided, in the interest of time, not to speak, but they are very keen to indicate that there is passionate support across the House for what I will say now. Also, I have cut my speech very short, so that we can get to the vote.
I am grateful to the Minister and Minister Narayan from the other place for their time last night, but I am disappointed that they agreed to meet only after they had already laid their amendment. At every point during the passage of the Bill, I have tried to get the Government to address the substance of the issues—the presence, right now, of chatbots that are grooming and coercing children, and that parents with a child in crisis have no one to turn to—but I have been met with process, not action. The Government’s amendment in lieu that offers a report by the end of the year to say what they have or have not done is an indication of process not action.
Lord Clement-Jones (LD)
My Lords, we have heard harrowing evidence in this House on AI chatbots, including the tragic case of Sewell Setzer, a high-achieving child who was captured, coerced and encouraged to commit suicide by a companion chatbot. Today, the noble Baroness, Lady Kidron, gave another example. She has brought forward essential amendments to tackle this head-on by creating strict offences for supplying chatbots that produce harmful material, outlawing coercive design and holding senior tech executives personally liable. I pay tribute to her campaigning skills and absolute determination to hold these tech companies to account.
The Government’s response is entirely inadequate. They have replaced targeted primary legislation with a sweeping, open-ended Henry VIII power for the Secretary of State to amend the Online Safety Act via secondary legislation at a later date and a statutory duty to write a progress report by December 2026. The progress report will protect absolutely no one today.
Crucially, the Government’s approach focuses exclusively on illegal AI-generated content. It completely omits the harmful but technically non-illegal coercive designs that mimic human relationships and foster emotional dependency in children, and it abandons the principle of senior management liability. We need immediate ex ante risk assessments and clear statutory duties, not delayed reports and the convenience of executive powers. I urge the House to reject the Government’s Motion V and insist on the robust protections drafted by the noble Baroness, Lady Kidron, by supporting Motion V1.
Baroness Butler-Sloss (CB)
My Lords, the Government are clearly very well meaning. They are very strong on discussion but weak on action. It is very sad that they should be so weak, and I strongly support the speeches that have been made so far.
Lord Hanson of Flint (Lab)
First of all, I pay tribute to the noble Baroness, Lady Kidron, who has been an indefatigable campaigner on this issue. I share the objective of trying to ensure that we protect children from chatbots, and I want to be clear that the Government share the House’s objective as a whole. We are aligned on the need to address the harms that arise from AI-generated illegal content. This is a disagreement about the question of what is the most effective and enforceable way in practice. The amendment in lieu reflects the balance the Government wish to bring. Our regulatory approach maintains a coherent approach under the Online Safety Act and reinforces Parliament’s ability to scrutinise delivery. For those reasons, I urge the House to support the amendment in lieu.
I know we are going to have a Division on this, but I hope that whatever the outcome of that Division, we can agree after it that this House is committed to ensuring that we protect children through regulation on chatbots. I hope the noble Baroness will not press her Motion V1, but if she does, I urge my noble friends to vote against it.
Baroness Kidron (CB)
My Lords, there will indeed be a Division. I am grateful to the Minister for suggesting that he will bring to the House, to the committees and to me personally his regulations. But those regulations do not extend to enforcement or to redress, and they do not give parents and children anywhere to go. I am absolutely willing to work with the Government, but I will give them one more opportunity to work with me on this, and the only way I have is to send these amendments the other place so that they can bring forward plans for real change. For that reason, I ask the House to agree with Motion V1.
Lord Hanson of Flint
That this House do agree with the Commons in their Amendments 361A to 361E.
“(3) A relevant data controller must delete from relevant official records, so far as reasonably practicable, any details of which they are aware of a conviction, caution, arrest or investigation detailed in subsection (1).
(3A) In subsection (3)—
(a) “relevant data controller” and “relevant official records” have the same meaning as in section 95 of the Protection of Freedoms Act 2012;
(b) “delete”, in relation to relevant official records prescribed for the purposes of the definition of “delete” in that section, means record with the details of the conviction, caution, arrest or investigation concerned a statement that the details are to be treated as deleted under this section.
(4) Other”
Lord Hanson of Flint (Lab)
My Lords, my noble friend Lady Levitt has already spoken to Motion W. I beg to move.
Lord Hanson of Flint
That this House do not insist on its Amendment 439, to which the Commons have disagreed for their Reason 439A.
Lord Hanson of Flint (Lab)
My Lords, I have already spoken to Motion X. I beg to move.
Motion X1 (as an amendment to Motion X)
Lord Davies of Gower
Leave out from “House” to end and insert “do insist on its Amendment 439.”
Lord Hanson of Flint
That this House do not insist on its Amendment 505, to which the Commons have disagreed for their Reason 505A.
Lord Hanson of Flint (Lab)
My Lords, I have already spoken to Motion Y. I beg to move.