Lord Ponsonby of Shulbrede (Lab)

My Lords, I have listened carefully to the arguments, particularly those in favour of the noble Baroness’s Amendment 55, the creating offence, which seeks to replace the “reasonable excuse” defence with the creating offence, with a targeted defence for red-team software testing and reasonable political satire. We share the noble Baroness’s desire to ensure that any defence to the creating offence functions tightly and share her belief that only in narrow and limited circumstances would a person have a reasonable excuse for the creation of such images without consent. That is how our reasonable excuse defence will apply in practice, which is why the Government believe that the defence is the right way forward. However, we are unable to agree to these targeted defences that the noble Baroness proposes to the creating offence in place of a reasonable excuse defence. This is a novel offence, tackling behaviour that is changing rapidly along with the technology itself. We cannot anticipate all the ways in which people will use technology as it develops. A defence of reasonable excuse which, as I have said, we believe will be interpreted very carefully by the courts, will ensure that the offence can be used effectively to target culpable perpetrators, even as technology and its uses change. The targeted defences proposed by the noble Baroness would also, crucially, not eliminate the risk of successful legal challenge, which I explained in my opening speech. Even with such targeted defences, the creating offence risks successful challenge in the courts, leading to uncertainty and reduced protection for victims. I turn briefly to Amendment 56A on the requesting offence. As I have set out, the reasonable excuse defence to the requesting offence will only apply in an extremely narrow set of circumstances, such as covert law enforcement operations. The legal issue which applies to the creating offence does not apply to the requesting offence. However, we always aim for consistency and parity across similar offences and so urge this House not to pass Amendment 56A to the requesting offence. Also, without the defence that the Commons included for the requesting offence, law enforcement and intelligence officials may be unable to effectively carry out their functions. We made a manifesto commitment to ban the creation of sexually explicit deepfakes. This legislation, as amended in the Commons, does just that. For the first time, there will be protection for victims and punishment for the perpetrators who create, or ask other people to create, intimate deepfakes of adults without consent or a reasonable belief of consent. These provisions represent an important and necessary response to intimate image deepfakes. The Government are clear that these offenses are comprehensive and robust. While a defence of reasonable excuse to both offences is necessary, it does not provide a get-out clause for the many perpetrators creating intimate deepfakes, especially sexual deepfakes, without consent. We remain firmly of a view that this is the most effective way to protect victims from this appalling abuse. It is our duty to act decisively. For those reasons, I urge your Lordships to support, with confidence, Motion 55C, containing as amendments in lieu Amendments 55D and 55E, and Amendment 56B. I urge the noble Baroness, Lady Owen, to withdraw her Motion 55A and Amendment 56A. The noble Baroness asked about deprivation orders. We share her frustration with this. The ability for courts to apply deprivation orders has been in place but these have not been used as extensively as they could be, so the judges are looking at sentencing guidelines to see how that lack of implementation of deprivation orders can be remedied. My noble friend Lady Chakrabarti asked whether offenders of the requesting offence would also be deprived of images by the court. Yes, they would be. We want to ensure parity across the creating and the requesting offence, so that includes their computers and any images that are stored anywhere. A number of noble Lords have expressed scepticism about whether the courts would adequately apply the reasonable excuse defence, which really is the nub of the issue which we are debating now. I have had this discussion many times with the noble Baroness, Lady Owen, in private. I must say, as a magistrate for nearly 20 years, that we often hear completely ridiculous defences. It is certainly not unusual in magistrates’ court—or, I am sure, in Crown Court—and magistrates and judges are well able to deal with those types of defences. I know that the noble Baroness is sceptical of that, which is one of the prime reasons why we have put the review in the Bill. She will know it is very unusual for Governments to commit in a Bill to have a review, but it is because we understand that this is a new area of law and that the way we are defining “reasonable excuse” is a politically contentious area. I urge her to continue to work with us, which I am sure she will do in any event, and I urge her not to move her amendments to a vote. I beg to move.