Contribution
My Lords, I speak to my amendments in this group. In doing so, I declare my interest as a guest of Google at its AI policy conference.
I start by thanking both the Minister and Minister Davies-Jones for taking the time to engage on this issue and for their endless patience. I know they have worked incredibly hard to secure progress on this and I am very grateful for their efforts.
We are down to the issue of whether we believe a person can have a reasonable excuse to create content that looks like a photograph or film of another person without their consent. Noble Lords will recall that this House overwhelmingly indicated that we did not believe “reasonable excuse” should be included as a defence and highlighted concern that it may be misinterpreted or viewed too widely.
I have concerns over the position the Government outlined in their letter from Minister Bryant to the Joint Committee on Human Rights. Minister Bryant argues that the inclusion of “reasonable excuse” is necessary as, without it, the offence would breach the ECHR due to limiting a person’s freedom to create photorealistic satirical art of scenarios such as a person on the toilet or in boxer shorts. Additionally, the Government argued the need for tech companies to be able to red team against this offence.
I share the Government’s strong desire that we do not want this Bill to have a memorandum on it warning that it may breach the ECHR, however precarious the arguments laid out may be. I do not want those who abuse women in this way to claim the prosecution may contravene their human rights.
With this in mind, I turn to my first amendments, Amendments 55C and 56B, written in conjunction with the Government, which offer a review of the implementation of “reasonable excuse” for both the creation and requesting offences after two years. I am grateful to the Minister for the compromise. He will know the conflicts I feel about this issue and the great concern I have that, without guardrails, “reasonable excuse” may be used to allow those who abuse others in this sickening way to escape justice.
I know the Minister will offer me reassurance that the courts will be used to hearing precarious excuses. However, my concern—as noble Lords know—is that image-based sexual abuse has been consistently misunderstood, with the Law Commission itself only arguing three years ago that the harm from creating non-consensual sexually explicit content was not serious enough to criminalise. In 2023, Refuge found that, despite steady year-on-year increases in recorded offences for image-based abuse, only 4% of offenders were charged. Even when a conviction was achieved, only 3% of cases resulted in the perpetrator being deprived of the images used for the offence.
We have seen consistent failure by prosecutors to understand and tackle the issue. I therefore have a very real concern that, by allowing “reasonable excuse” to sit in this offence, we risk it being misunderstood and the offence being undermined. Further, while I am grateful for the offer of a review, I am worried that if after two years we find “reasonable excuse” is allowing perpetrators to evade justice, there will not be a legislative vehicle in which to correct the issue, and the time it takes to correct may be lengthy. I would be grateful if the Minister could offer me reassurance on this point.
Additionally, I am concerned by the very premise of the argument that legislation without “reasonable excuse” would breach the ECHR. I have sought the legal counsel of the noble Lord, Lord Pannick, KC—who apologises for not being here this evening—and he believes that the inclusion of “reasonable excuse” in the defence is not necessary in order to be compliant with the ECHR.
The noble Lord, Lord Pannick, advised, as the Joint Committee on Human Rights already highlighted in its letter, that
“the Government has stated that prosecutorial discretion is sufficient to ensure that an offence that could violate a qualified right under the ECHR is nevertheless compliant with it”.
Additionally, all legislation must, so far as possible, be read and given effect to in a manner that is compliant with the ECHR, according to Section 3 of the Human Rights Act 1998. So, even if there were to be a prosecution in the sort of circumstances contemplated by the Government, the defendant could rely on their Article 10 rights, which means that an all-encompassing reasonable excuse is not necessary.
Additionally, I would be grateful if the Minister could outline to the House the reasons why tech companies cannot red team by prompting with the images of people who do consent and, therefore, not requiring a reasonable excuse, should their model fail and end up creating the content that it is trying to avoid. I would go as far as to say that testing prompts on a model using the image of a person who does not consent would be deeply unethical. It is my belief—and the view of the noble Lord, Lord Pannick, and the noble Baroness, Lady Chakrabarti—that such specific examples do not justify general reasonable excuse. To quote my friend and human rights advocate, the noble Baroness, Lady Chakrabarti:
“Spurious ECHR arguments for weakening 21st century cyber sex offences do not help the cause of those seeking to defend human rights from its many detractors”.