Lord Ponsonby of Shulbrede:

Moved by Lord Ponsonby of Shulbrede

56A: After Clause 132, insert the following new Clause—“Creating purported sexual image of adult(1) The Sexual Offences Act 2003 is amended in accordance with subsections (2) and (3).(2) After section 66A insert—“66AA Creating purported sexual image of adult(1) A person (A) commits an offence if—(a) A intentionally creates a purported sexual image of another person (B),(b) A does so with the intention of causing B alarm, distress or humiliation, and(c) B does not consent to the creation of the purported sexual image.(2) A person (A) commits an offence if—(a) A intentionally creates a purported sexual image of another person (B),(b) A does so for the purpose of A or another person obtaining sexual gratification,(c) B does not consent to the creation of the purported sexual image, and(d) A does not reasonably believe that B consents.(3) “Purported sexual image” of a person means an image which—(a) appears to be or include a photograph or film of the person (but is not, or is not only, a photograph or film of the person),(b) appears to be of an adult, and(c) appears to show—(i) the person participating or engaging in a sexual act which is not of a kind ordinarily done in public,(ii) the person doing a sexual thing which is not of a kind ordinarily done in public,(iii) all or part of the person’s exposed genitals or anus, or (iv) all or part of the person’s exposed breasts, except where what appears to be shown is something of a kind ordinarily seen in public.(4) In this section, a reference to creating a purported sexual image of a person does not include doing so by modifying a photograph or film of the person where what is created by the modification is an image which—(a) appears to show the person, and(b) does not appear to show something within subsection (3)(c)(i) to (iv) which, or a person who, is not shown in the photograph or film.(5) A person who commits an offence under this section is liable on summary conviction to a fine.66AB Creating purported sexual image of adult: definitions etc(1) This section applies for the purposes of section 66AA.(2) “Consent” to the creation of a purported sexual image includes general consent covering the particular act of creation as well as specific consent to that particular act.(3) Whether a belief is “reasonable” is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.(4) A reference to an “image”, “photograph” or “film” includes data stored by any means which is capable of conversion into an image, photograph or film.(5) An image of a person appears to be an image of an adult if—(a) the impression conveyed by the image is that the person shown is aged 18 or over, or(b) the predominant impression conveyed by the image is that the person shown is aged 18 or over (even if some of the physical characteristics shown are those of a person under 18).(6) An act or thing is “sexual” if a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider it to be sexual.”(3) In section 79(5) (meaning of references to image of a person), after “a person” insert “(except in sections 66AA and 66AB)”.(4) In the Sentencing Code, after section 154 insert—“154A Purported sexual images to be treated as used for purpose of certain offences(1) This section applies where a person commits an offence under section 66AA(1) or (2) of the Sexual Offences Act 2003 (creating purported sexual image of adult).66AA(1)(2) The purported sexual image to which the offence relates, and anything containing it, is to be regarded for the purposes of section 153 (and section 157(3)(b)) as used for the purposes of committing the offence (including where it is committed by aiding, abetting, counselling or procuring).””Member's explanatory statementThis clause creates offences of creating a purported sexual image of an adult and provides that deprivation orders can be made under the Sentencing Code in connection with the offences.

My Lords, as will become clear, although I am moving Amendment 56A, it is not the Government’s intention to insert these provisions into the Bill.

This is an issue on which there has been great and very important debate. I start by thanking the noble Lady Baroness, Lady Owen of Alderley Edge, for her tireless campaigning on this matter. This is a crucial area of law to get right, and the noble Baroness has rightly kept it at the top of the agenda in your Lordships’ House, arguing passionately on behalf of victims of this appalling form of abuse. I also thank other signatories to amendments in this group: the noble Baronesses, Lady Kidron and Lady Gohir, my noble friend Lord Browne of Ladyton and the noble Lord, Lord Clement-Jones. We have valued the engagement that has taken place. It is because we have been listening very carefully to the points made by these noble Lords and, indeed, many others, that we are able to confirm that the Government will be making good on their manifesto commitment to criminalise those who create a sexually explicit deepfake of an adult without their consent.

Noble Lords will know that the Government had intended to legislate in this area in the upcoming crime and policing Bill. However, following consultation with stakeholders and colleagues across your Lordships’ House, we have not only decided to use this Bill to criminalise the creation of sexually explicit deepfakes but will bring new amendments forward for Third Reading. Our proposed new amendments will take a similar approach to that of the noble Baroness, Lady Owen, on many key issues of concern raised in your Lordships’ House, while ensuring that they will work effectively within existing legal frameworks. Our new amendments will make it an offence to intentionally create an intimate image of a person without their consent or reasonable belief in their consent. There will be no additional intent element to our offence.

We have listened carefully in engaging with noble Lords across the House and considered additional evidence, and we agree that this consent-based approach is the right one to protect victims from abuse. The harm to victims of this behaviour cannot be underestimated. A consent-based offence sends a clear message that we want to stamp out the inexcusable creation of intimate deepfakes at its root.

We have also heard the concerns about what types of images it will be criminal to create. If the noble Baroness works with us, our proposed government amendment will define which images are captured by reference to Sections 66D(5) to (9) in the wider intimate image abuse framework, and will therefore cover the creation of the same types of images as covered by the sharing and proposed taking intimate images offence. This means that it will be a criminal offence to create, take or share an image that shows or appears to show someone engaged in sexual acts, or where the most intimate parts of the body are exposed or covered with underwear. It will mean that criminals cannot escape justice by altering images so that intimate parts of the body appear to be covered with emoji symbols or pictures. We are clear that this behaviour is unacceptable and should be criminal.

We are aware of concerns about overcriminalisation, particularly in relation to children, so that they are not unnecessarily brought into the criminal justice system. That is why we will be working closely with the Department for Education to tackle misogyny at every level. This will be critical to achieving our commitment to halve violence against women and girls, for which we will pull every lever to shift behaviour towards women.

We will also be including in our amendment a defence of reasonable excuse. The government amendment will be tech neutral, meaning that it is future-proofed if there are new ways to create hyperrealistic, sexually explicit likenesses in the future.

The Government have also heard, and agree with, the aim of the noble Baroness’s amendment to criminalise asking someone to commit the offence for you, regardless of where they are located and whether the image is then created. Existing law means that, once the creation of a sexually explicit deepfake without consent is an offence, it will automatically be an offence to encourage or assist someone to commit this offence in England and Wales under the Serious Crime Act 2007.

These inchoate offences apply to almost all criminal offences, but we share Peers’ concern about the need to ensure that this can apply if the request is made of any creator anywhere in the world. We are carefully considering how best to give effect to that, but bespoke “encouraging” offences are very rare and there is a serious risk of unintended consequences for wider areas of the criminal law. I want to be clear that we will be ensuring that the criminal law covers this behaviour. We will be developing provisions at pace, and want to work with the noble Baroness and her co-sponsors as we do that.

I cannot commit to the final proposals being brought forward at Third Reading. However, I will provide an update at Third Reading on when and how we expect to bring these specific measures forward. If they are inserted into the Bill in the House of Commons, they will of course return to this House for further consideration. The new government amendments will effectively protect victims and bring offenders to justice. Together with existing law and our new taking and installing offences in the Crime and Policing Bill, we will have a holistic package of offences to address intimate image abuse.

Amendment 70 would require the Government to create and publish a code of practice for the courts on the use of deprivation orders under Section 153 of the Sentencing Act 2020 for those convicted of intimate image and similar offences. Sentencing, including decisions on what order to impose, is a matter for the independent courts, in line with relevant sentencing guidelines made by the Sentencing Council, which is independent of government.

We support the policy aim of the amendment, which is that victims are not further harmed by perpetrators being allowed to keep the images resulting from the offence. That is why we are amending the Sentencing Act to ensure that courts have the power to deprive offenders of any images created in connection with their conviction for this offence, as well as the hardware on which they may be stored. The courts already have this power in relation to sharing intimate images without consent, at Section 66B of the Sexual Offences Act, or sending a photograph or film of genitals, at Section 66A of that Act. We will also be ensuring that courts have the power in relation to taking an intimate image without consent when we introduce offences to tackle this behaviour in the Crime and Policing Bill. This will ensure parity across all the offences. To be clear, this power extends to any image that the offender owns. Beyond that, where images have been shared non-consensually on sites under the Online Safety Act regime, they can and should be removed.

I know the noble Baroness is keen to ensure that this measure is comprehensive and works in practice. I share that desire and I want to keep working with her on this issue. However, we are unable to support Amendment 70, because it would be constitutionally inappropriate for the Government to produce a code of practice for the judiciary to follow. The Sentencing Council is currently reviewing its guidance on ancillary orders, including deprivation orders, to improve its clarity and usefulness to sentencers. My department has passed the concerns about the use of deprivation orders for intimate image abuse to the Sentencing Council and we await the outcome of its review.

The noble Baroness has tabled an amendment criminalising the non-consensual creation of sexually explicit audio deepfakes. I particularly thank the noble Baroness, Lady Gohir, for raising this important issue, and I reassure her that the Government are considering this wider issue carefully. Offences relating to the abuse of sexually explicit audio material, real or deepfake, would be a wholly new area of law and would need to be considered carefully, including in relation to child sexual abuse material as well as material depicting adults. We are reviewing this area of law very carefully and I would be happy to meet with the noble Baroness and other Peers to discuss it further.

I thank once again the noble Baroness, Lady Owen, and her supporters, including victims’ organisations, for their tireless campaigning on these important matters. I reiterate that the Government are fully committed to providing victims with protection. By putting the manifesto commitment into effect with a broadly defined, consent-based offence, we are sending a clear signal that this behaviour is unacceptable and offenders will face justice.

With the caveat that, having moved Amendment 56A, I will in due course withdraw it, I beg to move.

My Lords, I shall speak to Amendments 69, 70 and 72. I declare my interest as a guest of Google at its Future Forum and AI policy conference. I will also speak to government Amendments 56A, 74A and 77. I am grateful to the Government—particularly the Ministers, the noble Lord, Lord Ponsonby, and Sarah Sackman, who I know want to do the right thing by victim survivors—for taking the time to meet me and other noble Lords from across this House, and for the movement they have made in not pressing their own amendment.

I am so grateful for the offer to work together to put victim survivor experience at the heart of our legislation. As I have always advocated, a consent-based approach is the only approach that shows that the violation of a woman’s consent through the non-consensual creation of sexually explicit images and films is an act of abuse, regardless of a person’s motivation.

I am pleased that the Government have finally conceded that a woman’s consent is enough and, in doing so, will not press their amendments. I turn first to Amendment 69, in the names of the noble Lords, Lord Browne of Ladyton Lord Clement-Jones, and the noble Baroness, Lady Kidron. In doing so, I thank them for their steadfast and unwavering support.

I understand that the Government wish to bring forward their own amendment in time for Third Reading, I need to get absolute assurances from the Minister that it would be consent-based, as he has confirmed, cover solicitation, use the same definition of “an intimate state” as in the pre-existing sharing offence, that the limitation of time under the Magistrates’ Court Act will be taken as the date on which the victim becomes aware that the content has been created, and not the date on which it was created, and that it will include clarity under the law that the content used for image-based abuse will have clear guidance under Section 153 of the Sentencing Code.

If I cannot have absolute assurance from the noble Lord, I am motivated to test the opinion of the House, because a deepfake offence without the inclusion of solicitation will not be holistic. Amendment 69 vitally includes the solicitation of this content in order to close the gaps in the law and ensure that it cannot be circumnavigated by asking someone else in another jurisdiction where they have not yet legislated to create the content for you. It makes it an offence to solicit the content whether or not the creation happens. This vitally reflects the borderless nature of the internet and ensures that those in the UK who seek to abuse women by circumnavigating the proposed law will be held accountable.

Anyone who has had to witness their clothed images being touted on these sites dedicated to abuse will be subject to enormous fear and forced to live under the threat that the creation of sexually explicit content could happen at any moment. I would be grateful for the Minister’s absolute assurance that this will be part of the Government’s new amendment that they will bring at Third Reading and that it will be a consent-based solicitation offence. Without the inclusion of solicitation, we will be left with a gaping omission in our legislation.

My amendment uses the definition of “an intimate state” from Sections 66D(5), (6) and (7) of the Sexual Offences Act 2003 in order to have consistency with the pre-existing sharing laws. Unlike with the government amendment, victims will not have two separate definitions to contend with, depending on whether their image has been created or shared or both. I would just like a final reassurance from the Minister that this will be the definition.

My amendment clearly states in relation to Section 127(1) of the Magistrates’ Court Act 1980 on the limitation of time that the date on which the matter of complaint arose will be taken as the date on which the victim becomes aware of the content, as opposed to the date on which the perpetrator created the content. I need assurance from the Minister that their proposed amendment would do the same, so women are not inadvertently timed out of seeking justice. This issue was highlighted to me by campaigners at #NotYourPorn.

I turn now to Amendment 70 on the deletion of data used to perpetrate intimate image abuse. Following Committee, where I explained to the House that victims were being retraumatised by their abusers still being in possession of sexually explicit content of them following successful prosecution, I was very disheartened by the government response that no action was necessary due to Section 153 of the Sentencing Act 2020. I believe clarity under the pre-existing law is essential in order to avoid situations where victims are left traumatised and in a state of anxiety by their abusers keeping their intimate images.

However, I am very pleased that, following my amendment, the Government have had a change of heart. I understand that they are now willing to commit to amending the deprivation order powers of Section 153 of the Sentencing Code 2020 to ensure that courts can apply the orders to images and videos relating to the conviction of this offence, and any hardware. I would need the Minister’s assurance that it would also include physical copies and those held on any device, cloud-based programmes, digital messaging or social media platforms that the perpetrator controls. I would also like the commitment that this will be applied to the other pre- existing intimate image abuse offences, as my amendment did.

I turn to Amendment 72, which is in my name and those of the noble Baroness, Lady Gohir, and the noble Lord, Lord Clement-Jones. The noble Baroness, Lady Gohir, has previously highlighted to the House the growing problem of audio abuse. It is easy to envisage that, in only a short space of time, we could very realistically be in the same place on audio abuse as we are with sexually explicit deepfakes, as less data is required to create high-quality audio. This has the potential to be weaponised to yet again abuse women. We have the chance now to be proactive. I hope the Government, if they are not prepared to commit to it now, will take it seriously in their upcoming justice Bill.

As I have set out, I am extremely grateful for the Minister’s movement on these issues. I know that it is not straightforward to produce complex amendments at speed and I know the Minister is committed to getting the details right in this vital legislation. I expect the Government to provide an undertaking to bring amendments back at Third Reading to address this issue. Unless I receive reassurances that such amendments will address all the issues in the manner I have set out, I will test the opinion of the House. If I receive the reassurances that I am looking for today but, for any reason, the Government do not follow through with them at Third Reading, I reserve the right to bring back my own amendment covering all the elements I have raised on this important issue. I look forward to hearing from the Minister.

My Lords, I support everything the noble Baroness, Lady Owen, has said. I declare my interests as set out in the register. I will briefly speak on Amendment 72 about sexually explicit audio abuse, which I have raised a couple of times before.

I am concerned about why, now the Government know and are aware that sexually explicit audio abuse is a thing, they do not want to act now. We have victims right now. Perpetrators are making these recordings and using them to threaten and blackmail. They share these recordings to shame their victims and to maintain power and control. In some communities where shame and honour are a thing, those victims are then at risk of honour-based abuse. With new technologies, you can create deepfake audio as well.

It feels like the Government are kicking this into the long grass. I welcome the Minister’s comments that this will be considered, but there seems to be no timetable; it could be years before action is taken. I wonder whether the Government are waiting for there to be more noise on the issue and for more victims to come forward before they take action. Why not nip this in the bud now? The Minister mentioned the crime and policing Bill. It would be good to know why, for example, it cannot be included in that. I hope that we can shut down this avenue of abuse now and prevent there being more victims.

My Lords, I will speak to Amendments 69 and 70, to which I have added my name. I support the other amendments in the group, but I will leave others to speak to them because they own them. I do not think my noble friend the Minister wishes me to support his amendment, given what he has told us.

I take this opportunity to pay tribute to the noble Baroness, Lady Owen of Alderley Edge, whose campaigning on these issues has been a model of its kind. She has brought not only passion and commitment but astonishing forensic scrutiny to bear on them. She is to be commended for getting us to the place we are in today. I hope my noble friend the Minister will help her get to the destination she has set for us, which is the appropriate destination for this legislation.

The noble Baroness also brought me and others into contact with victims and survivors of this appalling sexual abuse and those who support them, which has been an extraordinary privilege too. Mostly young women, they are immensely impressive in the way they have worked together. Almost all of the many thousands of victims there have already been of this appalling abuse have been extraordinarily well represented.

I also thank those who have supported them. I will pick out Professor Clare McGlynn KC of Durham University and read part of the briefing paper that she produced for this occasion. I hope that all noble Lords who wish to participate in this debate have seen it. I know it has had a significant effect on people; I will not mention who they are, but I know that when they read it they were significantly affected by it.

At one point in the discussions there was some suggestion that no crime was committed until the created images were known about, shared or seen. Professor McGlynn makes the case that image creation without consent—non-consensual being the crime—is a significant cause of the harm done by this appalling behaviour. I will read from pages 5 and 6 of the briefing paper. I will read as little as possible, but this passage is so overwhelmingly persuasive that I want to read it:

“Non-consensual creation violates a person’s sexual autonomy and dignity. The creator decides how the person appears, talks, and acts in sexually explicit ways that deeply affects an individual’s personal integrity and dignity … Victims experience the creation of sexually explicit deepfakes as a sexual assault … Creation of sexually explicit deepfakes is experienced as a threat: the image is the threat. A digital image/video can instantly and easily be shared whether accidentally, maliciously, or through hacking … Threat of being deepfaked pervades the lives of women and girls: The easy creation and prevalence of deepfake image-based abuse material is experienced as an ever-present threat pervading women’s lives, with young women in particular expressing a palpable sense of despair at the lack of control over their identities and sexual autonomy”.

I also find myself in the happy position of being able to praise my noble friends on the Front Bench and those who advise them in much the same terms—although I do not always agree with them. They have been extremely responsive and given of their time generously to me and to many other noble Lords over the last few weeks. They have listened and shown a willingness not merely to hear concerns but to act on them. The test, of course, will be at the end of this debate as to whether those actions are sufficient for us to move to the next stage of concluding this.

My reasons for supporting the amendments in this group are simple. I believe that a consent-based approach, rather than one founded on intent, is critical. I believe that including the offence outlined in proposed new Section 66E of soliciting or commissioning a third party to create a digitally produced sexually explicit photograph or film is essential, and that the provisions outlined in Amendment 70 requiring the deletion of such images are vital if this overlapping mesh of protections is to be meaningful. I also believe that if sharing such an image attracts the maximum range of summary penalties, which includes up to six months’ imprisonment, the creation should expose the convicted creator to that range of sentences as well.

I will return to some of these issues shortly, but it is first worth stating that, in this context, the term “deepfake porn” is misleading. The creation, production and dissemination of these issues is sexual abuse. It is abuse that overwhelmingly affects only women, and these amendment will not merely represent a set of much-needed enforcement measures but carry genuine symbolic weight. Such symbolism is an important facet of statute law. These amendments will send a clear signal that the manufacturer is not only wrong but criminal, and that perpetrators will face criminal sanctions.

As I have said, the principle of consent outlined in Amendment 69 is fundamental. The amendment would remove the need for the victims to prove malicious intent by the perpetrator. Frankly, I find it difficult to envisage circumstances in which someone could produce such images or films with innocuous or benevolent intent. However, it is absolutely right that the accused should have to demonstrate a reasonable excuse for the production or solicitation of such material, or a reasonable belief that consent had been given. In this context, it may be that we can look at making intent an aggravation, if those who think intent is so important to this think that it should be present. That would open up the possibility of the highest sentences.

I do not intend to weary your Lordships’ House with a rehearsal of arguments that have already been made, some of which I know will be made by others who have put their names to amendments. I just re-emphasise the importance of the provisions that criminalise the soliciting—or, perhaps more accurately, the commissioning—of sexually explicit images, videos or audio. I realise that, as with the elements of Amendment 70 relating to the deletion of such material, there may well be international issues when it comes to prosecuting individual cases, but these difficulties magnify rather than diminish the need for these principles to be enshrined in law. There are, of course, ample precedents for soliciting an illegal act falling under the scope of criminal law, and it is clear that these provisions are the fruit of bitter experience and are inspired directly by the testimony and campaigning of the survivors.

On the issue of soliciting, in short, the Minister, my noble friend Lord Ponsonby of Shulbrede, referred to jurisdictional reach and other international implications. I understand these to be exercising Ministers and their advisers, and that they have committed to bringing forward the appropriate provisions on soliciting that do not breach commitments that we may have in that regard. However, with all due respect, I feel that these challenges have surfaced because of a fundamental misunderstanding of what the soliciting provision seeks to criminalise. It is the act here in the United Kingdom, in our jurisdiction, of soliciting or commissioning the creation of a non-consensual digitally produced sexually explicit photograph or film that is being criminalised. Were this provision to become law, it would be a crime no matter where in the world the image was created.

I shall share an analogy that I made up myself from my own experience as a lawyer in criminal law. If an importer of illegal drugs in this country lifts the phone to his supplier in Colombia, orders 6 kilograms of the best cocaine and discusses with him how it will come here, he commits a crime in this country. That does not extend our jurisdiction to Colombia; it has implications for that, maybe, in sentencing and other things, but the crime is committed here. The same is true, as we have heard, of the compelled deletion of material after conviction. It would be absurd, verging on Kafkaesque, if we were to see further examples of successful prosecutions, only for the perpetrator to leave the court and have his devices returned, still containing the sexually explicit deepfake images and videos that were the subjects of the trial.

We know that the march of technology and the feeling of anonymity and impunity afforded by the internet have conspired to make this problem epidemic. The amendments that I have put my name to, as well as others in this group, engage this challenge. They are proportionate and they could not be more timely. Although it may not be today, I hope to see them pass, clear the remaining stages in the other place and arrive on the statute book as quickly as possible.

My Lords, I add my congratulations to the noble Baroness, Lady Owen, for her skill and persistence in persuading the Government to address this noxious practice, which is causing so many women so much distress and humiliation. It is outrageous that this is still not unlawful.

I very much welcome what the Minister said, and I will press him on four matters. I hope that I understood him correctly when he said that the criminal offence will include solicitation in this country of the creation of these images abroad. I see that he is nodding—I am grateful. This is vital for this provision because, unless the criminal offence in this country covers such matters, the mischief will continue, as the Minister recognises. I can see no difficulty in terms of constitutional theory or practice or international law, because there are many offences in the criminal calendar where what is criminalised is conduct in this country, even though part of the matter that causes concern occurs abroad. I am very grateful to the Minister.

Secondly—and I hope I understood the Minister correctly—he said that the Government’s amendments will contain no intent element other than intent to create the image. That is very important. If the prosecution has to establish some other intent, that will enable defendants to come up with all sorts of spurious explanations such as, “It was not my intent” and “I didn’t realise that it would have this effect”, which would frustrate the purpose. I think that is what the Minister said, and I would welcome confirmation on that important point.

I would also welcome confirmation on another point. Another “intent”—intent to cause alarm, distress or humiliation—is in his Amendment 56A, which I of course appreciate will not be pursued in due course. Does the Minister’s statement that no other intent than intent to create the image will be required also covers the other element, which is in Amendment 56A? That also requires the prosecution to prove, as an alternative, the purpose for which these images are created. It has to be proved under Amendment 56A that the purpose is to obtain sexual gratification. The defendant will inevitably say that it is not their purpose. Could the Minister confirm that that will not be replicated in the amendment that will eventually be brought forward? I see the Minister nodding, and I am grateful to him.

Thirdly, the Minister referred to what will be in the amendment that will eventually be brought forward. If I understood him correctly, there will be a defence of reasonable excuse. The Minister confirms that that is what he said. I have great difficulty in understanding in what circumstances a defendant could have a reasonable excuse for creating or soliciting a fake image of a sexual nature without either the consent of the victim or, at the very least, a reasonable belief by the defendant that the victim had consented. Can the Minister give us an example of where the image has been created or solicited and the defendant does not believe that the woman has consented, or does not have a reasonable belief that the woman has consented, but there is nevertheless a reasonable excuse for this conduct? I cannot think of one. I am not expecting an answer from the Minister today, but if his amendment contains the reasonable excuse defence, I for one will be pressing him on it.

Fourthly and finally, I understood the Minister to give a commitment, not that the amendment will be ready in time necessarily for Third Reading, but that it will be ready and introduced during the passage of this Bill through Parliament. My understanding is that there is no question of this being kicked into the long grass. We have a commitment that the Government will propose legislation in the course of parliamentary consideration of this Bill. If I am right on that—again, I saw the Minister nodding—I very much hope that the noble Baroness, Lady Owen, will not feel it necessary to press her amendment this evening. She has made enormous progress on this, which is much welcomed around the House. It would be much better, would it not, to preserve and reserve her position for Third Reading, if she needs to bring the matter back then?

My Lords, it is such a pleasure briefly to follow my noble friend Lord Pannick; not for the first time I thought that, if I ever get in trouble, I know who I will go to.

I record my admiration for the noble Baroness, Lady Owen. She has fought a just and forensic fight and she has mastered the gift of the House of Lords very rapidly. I also thank the Minister, Sarah Sackman, for the meeting on this subject and for agreeing to look again and again at the issue of intent and consent, which is something that those of us who have been in the world of sexual offences really must insist on, so I was delighted to hear from the noble Baroness and the Minister that that is somewhat resolved.

I listened very carefully to the Minister, and I thought it was a fantastic lesson in the Government listening. I then listened carefully to the noble Baroness, and I think she said the word “assurance” six times—it may have been seven. I very much hope that, when the Minister replies, we will get whatever number of assurances she required and that whatever details remain are resolved in a way that satisfies the noble Baroness and, indeed, the victims of these horrendous crimes.

The noble Baroness has done us a good service, but this is not an issue on which we can celebrate. Like the other amendments in my name on AI child sexual abuse that were in this group in Committee—which I have not tabled because they will also be subject to announcements by the Home Office in the next few days—these issues are urgent and obvious and, frankly, we should not have to battle this hard to get laws on to the statute book that enshrine basic legal protections for women and children. I am really glad that the Government have chosen to act on these two issues and commend them for doing so.

My Lords, I will be brief. I congratulate my noble friend Lady Owen on these three splendid amendments. She has done a tremendous service to the criminal law and the women of this country—and young men, who I understand are abused in this way too. It is really important. I shall not add anything to the speeches that have been made, other than to say that I endorse everything said by the noble Lords, Lord Browne of Ladyton and Lord Pannick, and the noble Baroness, Lady Kidron. We must act now, and we must have a Bill that is complete at Third Reading and which includes everything that the noble Baroness has asked for; there cannot be any excuse for quibbling about solicitation. We have to act now, it has got to be done and I am sure the criminal courts will endorse and adopt it. This is a terrible mischief that causes great harm, and we would be doing a great disservice if we did not act on it.

My Lords, I will speak briefly on this group. Like other noble Lords, I congratulate the noble Baroness, Lady Owen, on her tenacity. As the noble Baroness, Lady Kidron, said, she has learned the lessons of how to change the law in this House very early on—it takes the rest of us quite a while to catch up. I am very grateful that the Government Front Bench have listened, and it demonstrates the value of this House.

The noble Baroness has outlined why her version of the amendment is right: in victims not having to prove the intent of those who have created or solicited the creation of the image, and also the importance of that solicitation. She is in a difficult position tonight. It is a difficult choice to have to make. I fully appreciate that this is part of the Government’s overall commitment to halve violence against women and girls, I think in the course of this Parliament, and that is extremely noble. But we debated this on 13 December, when we debated the noble Baroness’s Private Member’s Bill; we are now at the end of January and, for everything that is welcome in what the Minister said, he also said that he is unable to give the assurance that the amendment will be tabled at Third Reading. He wants the noble Baroness, Lady Owen, to accept that, if she does not see the amendment then, it will appear in the Commons. I have no reason to think that that will not be the case, but, of course, if it does not appear at Third Reading, and if the noble Baroness does not put down her amendment at Third Reading and push it to a vote, then she is very reliant on it coming back in the Commons.

The broader point that I want to make is that, although we are all committed to ending violence against women and girls and next month we will see the Online Safety Act guidance on that very issue being published by Ofcom, the lesson from the Online Safety Act is that—and it was a Government of which I was a supporter and at the time I was taking the Whip—it took the Government an awfully long time to catch up to the fact that there was a group of Members of this House who just wanted the right thing to be done. The Government took far too long. If the Government had actually been engaging by drafting their own amendment to capture the points made by the noble Baroness between 13 December and today, we would have an amendment that we could all unite around and be even more congratulatory to both the noble Baroness and the Government Front Bench in having tackled these images. As it is, we are in a deeply unsatisfactory place. While I am sure that the noble Lord, Lord Pannick, is right that, perhaps, we should not have a vote tonight, the noble Baroness is taking that on an enormous amount of trust.

Therefore, I say to Government Ministers that, when we come to tackle these issues of violence against women and girls in the rest of this Parliament, it should not matter where the proposals come from; if they are right, if they reflect the reality of women’s and girls’ experiences online or offline, then I would hope that Ministers would listen and that the Opposition would obviously help support and secure those changes. As the online world develops, and as technology gets faster and faster, we need to be nimble in this Parliament in addressing those images. If the noble Baroness pushes Amendment 69 to a vote, I would support it tonight. We will all listen very carefully—no pressure—to what the Minister says, and we shall be guided by the noble Baroness and her decisions as we reach the conclusion of this debate.

My Lords, I am pleased to follow the noble Baroness, Lady Morgan, who did so much during the Online Safety Bill—now Act—to champion the issues that are now before us. She should get full credit for the first steps she made. I think I said it before, and I will say it again in her presence, that we thought we had achieved much of what we are talking about today in the final wind-up of that Bill, but we had to swap it for a slightly bigger prize and it fell down slightly on the list, so I feel very guilty about this and want to help to redress somehow the balance of the deficit that was created.

I do not want to get, in this House, any reputation for being a person who asks geeky questions about Third Reading issues, but the Minister will know that getting access to debates at Third Reading is tricky. It often requires the graven head of the clerk to nod very slowly at an appropriate moment, and I wonder if we could just rehearse that slightly so that we are quite clear exactly what the noble Baroness, Lady Morgan, was saying.

Am I right in saying that the intention—and good intentions are great—is that there will be a government amendment at Third Reading? Since it is being produced by the Government, there is not an issue for the clerk to nod at, because that is allowed. If there is a government amendment dealing with all the issues we raised today, then we are all in a good place. It is right that this House, which has done so much to come together to create it, gets the credit for this Bill going down to the Commons. That is appropriate and something that we should get right.

In the absence of the Bill—and I recognise that there are difficulties about drafting, and it may well be that we have a very short time between Report and Third Reading—would it not be appropriate for the Minister to say to the clerk that it is his intention that, if necessary, the noble Baroness, Lady Owen, may bring forward an amendment on these issues so that at least we get, if not all of the package, the parts that are relevant and most important to it in the Bill as it leaves this House? That would be helpful all round, and it would be in accordance with the sentiment of the House.

My Lords, I share in the congratulations of my noble friend Lady Owen. It has taken me about 10 years to begin to understand how this House works and it has taken her about 10 minutes.

I want to pursue something which bewilders me about this set of amendments, which is the amendment tabled by the noble Baroness, Lady Gohir. I do not understand why we are talking about a different Bill in relation to audio fakes. Audio has been with us for many years, yet video deepfakes are relatively new. Why are we talking about a different Bill in relation to audio deepfakes?

My Lords, this has been a very interesting debate. I too congratulate the noble Baroness, Lady Owen, on having brought forward these very important amendments. It has been a privilege to be part of her support team and she has proved an extremely persuasive cross-party advocate, including in being able to bring out the team: the noble Baroness, Lady Kidron, the noble Lord, Lord Pannick, who has cross-examined the Minister, and the noble Lord, Lord Stevenson. There is very little to follow up on what noble Lords have said, because the Minister now knows exactly what he needs to reply to.

I was exercised by this rather vague issue of whether the elements that were required were going to come back at Third Reading or in the Commons. I did not think that the Minister was specific enough in his initial response. In his cross-examination, the noble Lord, Lord Pannick, really went through the key elements that were required, such as the no intent element, the question of reasonable excuse and how robust that was, the question of solicitation, which I know is very important in this context, and the question of whether it is really an international law matter. I have had the benefit of talking to the noble Lord, Lord Pannick, and surely the mischief is delivered and carried out here, so why is that an international law issue? There is also the question of deletion of data, which the noble Lord has explained pretty carefully, and the question of timing of knowledge of the offence having been committed.

The Minister needs to describe the stages at which those various elements are going to be contained in a government amendment. I understand that there may be a phasing, but there are a lot of assurances. As the noble Lord, Lord Stevenson, said, is it six or seven? How many assurances are we talking about? I very much hope that the Minister can see the sentiment and the importance we place on his assurances on these amendments, so I very much hope he is going to be able to give us the answers.

In conclusion, as the noble Baroness, Lady Morgan, said—and it is no bad thing to be able to wheel on a former Secretary of State at 9 o’clock in the evening—there is a clear link between gender-based violence and image-based abuse. This is something which motivates us hugely in favour of these amendments. I very much hope the Minister can give more assurance on the audio side of things as well, because we want future legislation to safeguard victims, improve prosecutions and deter potential perpetrators from committing image-based and audio-based abuse crimes.

I thank the Minister and my noble friend Lady Owen for bringing these amendments to your Lordships’ House. Before I speak to the substance of the amendments, I join others in paying tribute to the tenacity, commitment and skill that my noble friend Lady Owen has shown throughout her campaign to ban these awful practices. She not only has argued her case powerfully and persuasively but, as others have remarked, seems to have figured out the machinery of this House in an uncanny way. Whatever else happens, she has the full support of these Benches.

I am pleased that the Government have engaged constructively with my noble friend and are seeking to bring this back at Third Reading. The Minister has been asked some questions and we all look forward with interest to his responses. I know from the speeches that we have heard that I am not alone in this House in believing that we have an opportunity here and now to create these offences, and we should not delay. For the sake of the many people who have been, and will otherwise be, victims of the creation of sexually explicit deepfakes, I urge the Government to continue to work with my noble friend Lady Owen to get this over the line as soon as possible.

My Lords, I thank all noble Lords who have spoken in this debate, including the noble Baronesses, Lady Owen and Lady Gohir. The Government of course share the concerns that have been expressed by noble Lords across the House. That is why we committed in our manifesto to criminalising the creation of sexually explicit deepfakes, and why we have been listening carefully to the issues and evidence that noble Lords and campaign groups have put forward on the best way to achieve our shared target of deterring people from creating these images and delivering justice to victims where this deterrent does not work.

As I made clear in my opening speech, the Government will not press Amendments 56A, 74A and 77. Instead, as I have set out, we intend to bring forward new amendments at Third Reading based on Amendment 69 tabled by the noble Baroness, Lady Owen, and drawing on aspects of Amendment 70. These will incorporate and address the issues raised during this debate. The new amendments will criminalise the intentional creation of an intimate image deepfake without consent or a reasonable belief of consent. This will not require any additional motivation. They will use the same definition of an “intimate state” as in the sharing intimate images offence. They will amend the Sentencing Code to ensure that the courts can deprive offenders of the relevant images if convicted of this offence, as well as any hardware on which they are stored.

We have agreed that we want to make it criminal to ask someone to create a sexual deepfake on your behalf, regardless of where they are in the world and regardless of whether the image is created. I remind the House that the Government are making a firm commitment that this will be done quickly. However, this is a complex area of law and any responsible Government should want to ensure that criminal law will function as intended.

I repeat my earlier commitment to provide an update on the specific issue of solicitation at Third Reading. The Government have not only heard the case put forward by noble Lords; they are acting to respond to those concerns and deliver these important changes. We must do this in a way that works alongside existing offences and will be effective in securing convictions, to make sure that victims will be protected and perpetrators brought to justice. I hope that the noble Baroness will bear this in mind as she considers whether to work with the Government ahead of Third Reading or press her amendments later this evening.

I will pick up some of the points made by noble Lords, starting with one made by the noble Baroness, Lady Morgan. I agree wholeheartedly with her point that it does not matter where the good ideas come from; we need to work across this House to try to implement the measures that the noble Baroness, Lady Owen, has inspired this House to support, if I can put it like that.

The noble Baroness, Lady Gohir, asked about audio. I am advised that this is a very novel and difficult aspect of law. While I will do absolutely everything I can in my current role as a Minister to move this forward, I am not in a position to give a more fulsome commitment to the amendment she seeks at this stage. However, I absolutely undertake that we will pursue this matter.

As I said, we commit to addressing solicitation at Third Reading, but the amendments will come back at whatever necessary stage in the House of Commons—so within this Bill. Of course, if any amendment is made there, this House can consider the matter again.

In summary, I hear the concerns that have been raised in this debate and it is my intention to act on those concerns, as far as possible. I hope the noble Baroness will not feel it is necessary to press her amendment, but, whether she presses it or not, I look forward to working with her on these issues in the weeks to come.

I just ask the Minister, before he sits down, whether he will address the point that the noble Lord, Lord Stevenson, raised. The Minister said that he will address matters at Third Reading, but of course he can address matters only if an amendment is brought forward. Is he accepting, as I hope he is, that if the Government do not bring forward some form of amendment for debate purposes at Third Reading, it would be entirely appropriate, and the Government would support the idea, that the noble Baroness, Lady Owen, could bring forward her own amendment at Third Reading for the purposes of further of further debate? Is he accepting that?

My Lords, the opening amendment in this group is a government amendment that we are withdrawing, so we are setting up the debate. There could be a similar mechanism at Third Reading. I do not know how it will actually be worked out, but there is an undertaking on behalf of the Government to say how far we have got on the solicitation issue, with a view to moving amendments in the other place.

Before the Minister sits down, that was exactly the point I was trying to make, and I am very grateful to the noble Lord, Lord Pannick, for raising it again. It does need the Minister to say to the clerk that it is possible for the noble Baroness, Lady Owen, to bring an amendment, if necessary, at Third Reading. If the Minister could repeat that at the Dispatch Box, I think we would both be happy.

Yes. If the noble Baroness wants to bring back a similar amendment on this issue, that indeed can be debated at Third Reading.

Before the noble Lord sits down, may I get his assurance that deletion will include cloud-based systems and physical copies? He mentioned hardware, but I would like the assurance on the additional physical copies, those held on any device, cloud-based system, digital, messaging or social media platform that a person controls, because you can post something to a personal account without actually having shared it with other people. I would like clarification around that.

That is certainly the intention of the legislation, but I am aware that it is extremely complex.

Before the noble Lord sits down again—forgive me—I am concerned about women being inadvertently timed out by the six-month limitation. Could the noble Lord address this point with a little more clarity please?

Yes, I understand the point the noble Baroness makes. but that is also something which we are willing to look at. The noble Baroness’s amendment was on the point at which a woman knows that has been such an intimate image abuse. I would point out to her that there may be many cases where the woman never knows that there has been such a type of abuse. I am thinking of previous legislation on upskirting. There have been successful convictions of people for upskirting where the woman never knew she was a victim and the images were of no particular determinate time. I understand the point the noble Baroness is making and I agree in general terms, but there may be a way of addressing the point, capturing the wider point I am making of women who may not know they are victims.

I beg leave to withdraw Amendment 56A.

Amendment 56A withdrawn.