Chris Philp
MP for Croydon South · Conservative · United Kingdom
“The Minister mentioned return numbers, but what she did not mention is that the return of 6,000 small-boat migrants in the past two and a bit years amounts to only 8% of illegal immigrants crossing the channel. That is to say, 92% of illegal immigrants crossing get to stay. There is no deterrent whatsoever in that.”
“I cannot give all the many examples, in the interests of time, but they cited one example in which apparently hundreds of Pakistani men claimed to be gay, based on a letter from an individual claiming to be the sexual partner of all of them. That is quite clearly fabricated with the assistance of immigration lawyers.”
“I was on the beaches of northern France just a few weeks ago, waist deep in water as one such dinghy embarked with about 100 illegal immigrants on it, while 10 members of the French gendarmerie nationale, who we pay for—who the Home Secretary pays for—with £660 million of our money, almost all of it unconditional, stood by and did nothing…”
“Numerous rapes have been committed by small-boat illegal immigrants, including the rape of a girl in Nuneaton aged just 12. The Government are using sleight of hand. They are moving illegal immigrants from hotels into apartments, then granting them asylum on an industrial scale.”
“I thank my constituency neighbour, the Minister for Policing and Crime, for advance sight of her statement. I am sure that we all agree that the right to protest is a fundamental part of our democracy, but the right to protest should never be violently exercised or cause serious disruption to other people.”
“Since the general election, over 80,000 illegal immigrants have crossed the channel, all illegally and all unnecessarily, because France is a safe country—nobody is fleeing persecution in France. Almost 20,000 have crossed this year alone, and 625 crossed yesterday, with more coming in the early hours.”
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“We are introducing a new, groundbreaking regime, and we are trying to strike a balance between the need for regulatory independence of Ofcom and appropriate roles for Parliament and Government. There is a balance to strike there, particularly in an area such as this, which has not been regulated previously. It is a brand-new area, so we do not have decades of cumulated custom and practice that has built up. We are creating this from the ground up—from a blank sheet of paper. That is why, in establishing this regime, we want to provide a facility for high-level strategic guidance to be given to Ofcom. Of course, that does not infringe on Ofcom’s day-to-day operations; it will continue to do those things itself, in taking decisions on individual enforcement matters and on the details around codes of practice.”
“I imagine that if a future Secretary of State—I cannot imagine the current Secretary of State doing it—published guidance in less than three years without Ofcom’s consent, Ofcom would not be shy in pointing that out, but to do that would be illegal. It would be unlawful; it would be a breach of this measure in the Bill. I hope that the points that I have just made about the safeguards in clause 147, and the assurance and clarity that I have given the Committee about the intent that guidance will be at the strategic level rather than the operational level, gives Members the assurance they need to support the clause. Question put, That the clause stand part of the Bill.”
“It is better than being in the guidance, which is non-statutory, because it is in the Bill—it is right here in front of us in the measure that the hon. Lady just referred to, clause 147(4)(b). If the Secretary of State decided to issue updated guidance in less than three years without Ofcom’s consent, that would be unlawful; that would be in breach of this statute, and it would be a very straightforward matter to get that struck down. It would be completely illegal to do that. My expectation would be that if updated guidance was issued in less than three years, it would be accompanied by written confirmation that Ofcom had agreed.”
“I could not possibly add to that exceptionally eloquent description. Question put and agreed to . Clause 148 accordingly ordered to stand part of the Bill . Clause 149 Review Question proposed, That the clause stand part of the Bill.”
“I welcome the shadow Minister’s support for this review clause, which is important. I will not add to her comments. Question put and agreed to . Clause 149 accordingly ordered to stand part of the Bill . Clause 150 Harmful communications offence”
“Friends the Members for Watford and for Eastbourne—I can now announce to the Committee that the Government have decided to enact the Law Commission’s recommendations, so there will be a new and separate standalone offence that is specific to epilepsy for the very first time. I can firmly commit to that and announce it today.”
“Amendment 112 is clearly very important. As my hon. Friend the Member for Watford pointed out, I have already said that I believe that clause 150 goes a long way to address the various issues that have been raised. Since my hon. Friends the Members for Eastbourne and for Watford, and the hon. Member for Batley and Spen have been raising this issue—my hon. Friends have been lobbying me on this issue persistently and frequently, behind closed doors as well as publicly, and the hon. Member for Batley and Spen has been campaigning on this publicly with great tenacity and verve—the Government and the MOJ have been further considering the Law Commission’s recommendations, which I referenced on Second Reading. Subsequent to Second Reading and the lobbying by the three Members who have just spoken—the hon. Member for Batley and Spen, and my hon.”
“Clearly, we cannot have two offences that criminalise the same behaviour. To the point made by the hon. Member for Aberdeen North, it would not be right to create two epilepsy trolling offences. We just need one, but it needs to be right.”
“Of course, that goes far beyond epilepsy trolling, because it would also bring into scope the existing offence of assisting or encouraging suicide, so there would be duplicative law: there would be the existing offence of assisting or encouraging suicide and the new offence, because a communication that encouraged physical harm would do the same thing. If we included all physical harm, it would duplicate the proposed offence of assisting or encouraging self-harm that is being worked on by the Ministry of Justice and the Law Commission. It would also duplicate offences under the Offences Against the Person Act 1861, because if a communication caused one person to injure another, there would be duplication between the offence that will be created by clause 150 and the existing offence.”
“One of the pieces of legislation that could be used is this Bill, because it is in scope. If the hon. Lady can bear with me until Report, I will say more about the specific legislative vehicle that we propose to use. On the precise wording to be used, I will make a couple of points about the amendments that have been tabled—I think amendment 113 is not being moved, but I will speak to it anyway. Amendment 112, which was tabled by the hon. Member for Batley and Spen, talks about bringing physical harm in general into the scope of clause 150.”
“In a second. The physical harm extension goes way beyond the epilepsy point, which is why I do not think that that would be the right way to do it, although the Government have accepted that we will do it and need to do it, but by a different mechanism. I was about to speak to amendment 113, the drafting of which specifically mentions epilepsy and which was tabled by my hon. Friend the Member for Blackpool North and Cleveleys (Paul Maynard), but was the hon. Lady’s question about the previous point?”
“We need to get proper drafting. My hon. Friend the Member for Eastbourne mentioned that the Epilepsy Society had some thoughts on the drafting. I know that my colleagues in the Ministry of Justice and, I am sure, the office of the parliamentary counsel, would be keen to work with experts from the Epilepsy Society to ensure that the drafting is correct. Report will likely be before summer recess—it is not confirmed, but I am hoping it will be—and getting the drafting nailed down that quickly would be challenging. I hope that, in a slightly indirect way, that answers the question. We do not have collective agreement about the precise legislative vehicle to use; however, I hope it addresses the questions about how the timing and the choreography could work.”
“That is a good question, and it ties into my next point. Clearly, amendment 113 is designed to create a two-sentence epilepsy trolling offence. When trying to create a brand-new offence—in this case, epilepsy trolling—it is unlikely that two sentences’ worth of drafting will do the trick, because a number of questions need to be addressed. For example, the drafting will need to consider what level of harm should be covered and exactly what penalty would be appropriate. If it was in clause 150, the penalty would be two years, but it might be higher or lower, which needs to be addressed. The precise definitions of the various terms need to be carefully defined as well, including “epilepsy” and “epileptic seizures” in amendment 113, which was tabled by my hon. Friend the Member for Blackpool North and Cleveleys.”
“Representations have been made by the three Members here that epilepsy deserves its own stand-alone offence, and the Government have just agreed to do that, so take that as a win. On why we would not just accept amendment 112, it may well cover epilepsy, and may well cover it to the satisfaction of the Epilepsy Society, but it also, probably inadvertently, does a lot more than that. It creates a duplication with the offence of assisting or encouraging suicide.”
“That is why the right way to do this is essentially through a better drafted version of amendment 113, which specifically targets epilepsy. However, it should be done with drafting that has been done properly—with respect to my hon. Friend the Member for Blackpool North and Cleveleys, who drafted the amendment—with definitions that are done properly, and so on. That is what we want to do.”
“No, it is not a bonus, because we cannot have two different laws that criminalise the same thing. We want to have laws that are, essentially, mutually exclusive. If a person commits a particular act, it should be clear which Act the offence is being committed under. Imagine that there were two different offences for the same act with different sentences—one is two years and one is 10 years. Which sentence does the judge then apply? We do not want to have law that overlaps, where the same act is basically a clear offence under two different laws. Just by using the term “physical harm”, amendment 112 creates that. I accept that it would cover epilepsy, but it would also cover a whole load of other things, which would then create duplication.”
“Yes. Just to be clear, in no world will a new law pass by the summer recess. However, I can say that the Government are committed, unequivocally, to there being a new offence in law that will criminalise epilepsy trolling specifically. That commitment is categoric. The only matter on which I need to come back to the House, which I will try to do on Report, is to confirm specifically which Bill that offence will go in. The commitment to legislate is made unequivocally today.”
“I suggest that we bank the win and get on with implementing it.”
“The progress that the campaign has made, with the clear commitment from the Government that we are going to legislate for a specific epilepsy trolling offence, is a huge step forward. I entirely understand the hon. Lady’s impatience. I have tried to be as forthcoming as I can be about likely times, in answer to the question from the hon. Member for Aberdeen North, within the constraints of what is currently collectively agreed, beyond which I cannot step. Amendment 112 will sort out the epilepsy, but unfortunately it will create duplicative criminal law. We cannot let our understandable sense of urgency end up creating a slightly dysfunctional criminal statute book. There is a path that is as clear as it reasonably can be. Members of the Committee will probably have inferred the plan from what I said earlier. This is a huge step forward.”
“I think that is probably a good place to leave my comments. I can offer public testimony of my hon. Friend’s tenacity in pursuing this issue. I ask the hon. Member for Batley and Spen to withdraw the amendment. I have given the reasons why: because it would create duplicative criminal law. I have been clear about the path forward, so I hope that on that basis we can work together to get this legislated for as a new offence, which is what she, her constituent and my hon. Friends the Members for Watford and for Eastbourne and others have been calling for.”
“Clause 154 sets out the extra-territorial application, and Clause 155 sets out the liability of corporate officers. Clause 157 repeals some of the old offences that the new provisions replace. Those clauses—apart from clause 150—are all relatively straightforward. I hope that, in following the Law Commission’s advice, we have struck a carefully calibrated balance in the right place.”
“There is a line to draw, and that is not easy, but I hope that, through my comments and the drafting of the clause, the Committee will see that that line has been drawn and a balance struck in a carefully calibrated way. I acknowledge that the matter is not straightforward, but we have addressed it with advice from the Law Commission, which is expert in this area. I commend clause 150 to the Committee. The other clauses in this group are a little less contentious. Clause 151 sets out a new false communication offence, and I think it is pretty self-explanatory as drafted. The threatening communications offence in clause 152 is also fairly self-explanatory—the terms are pretty clear. Clause 153 contains interpretative provisions.”
“There are some defences—well, not defences, but conditions to be met—in clause 150(1)(c). The person must have “no reasonable excuse”. Subsection (5) makes it clear that “In deciding whether a person has a reasonable excuse…one of the factors that a court must consider (if it is relevant in a particular case) is whether the message is, or is intended to be, a contribution to a matter of public interest (but that does not determine the point)” of whether there is a reasonable excuse—it simply has to be taken into account by the court and balanced against the other considerations. That qualification has been put in for reasons of free speech. There is a delicate balance to strike between criminalising what should be criminal and, at the same time, allowing reasonable free speech.”
“That is being worked through by the Law Commission and the Ministry of Justice, and I hope that it will be brought forward as soon as possible, in the same way as the epilepsy trolling offence that we discussed a short while ago. That work on intimate image abuse is under way, and consent, not intent, is the test. For the generality of communications—the clause covers any communications; it is incredibly broad in scope—it is reasonable to have the intent test to avoid criminalising what people would consider to be an exercise of free speech. That is a balance that we have tried to strike. The intention behind the appalling communications that we have heard in evidence and elsewhere is clear: it is in inconceivable that there was any other motivation or intention than to cause harm.”
“Intention can in some circumstances be difficult to prove, but there are also acts that are so obviously malicious that there can be no conceivable motivation or intention other than to cause harm, where the communication is so obviously malfeasant. In those cases, establishing intent is not too difficult. In a number of specific areas, such as intimate image abuse, my right hon. Friend the Member for Basingstoke and others have powerfully suggested that establishing intent is an unreasonably high threshold, and that the bar should be set simply at consent. For the intimate image abuse offence, the bar is set at the consent level, not at intent.”
“There is a balance to strike here between, on the one hand, public protection and where the criminal law sits versus, on the other hand, free speech and people expressing themselves. That is why clause 150 is constructed as it is, on the advice of the Law Commission. As the hon. Member set out, the offence is committed only where there is a “real and substantial risk” that the likely audience would suffer harm. Harm is defined as “psychological harm amounting to at least serious distress.” Serious distress is quite a high threshold—it is significant thing, not something trivial. It is important to make that clear. The second limb is that there is an intention to cause harm.”
“The clauses replace previous offences—for example, those in the Malicious Communications Act 1998—and update and improve those provisions in the form we see them in the Bill. The shadow Minister, the hon. Member for Worsley and Eccles South, asked a number of questions about the drafting of the clauses and the thresholds that have to be met for an offence to be committed. We are trying to strike a balance between criminalising communications that deserve to be criminalised and not criminalising communications that people would consider should fall below the criminal threshold. There is obviously a balance to strike in doing that. We do not want to infringe free speech by going too far and having legitimate criticism and debate being subject to criminal sanctions.”
“Let me start by saying that many of these clauses have been developed in careful consultation with the Law Commission, which has taken a great deal of time to research and develop policy in this area. It is obviously quite a delicate area, and it is important to make sure that we get it right. The Law Commission is the expert in this kind of thing, and it is right that the Government commissioned it, some years ago, to work on these provisions, and it is right that, by and large, we follow its expert advice in framing these offences, unless there is a very good reason not to. That is what we have done—we have followed the Law Commission’s advice, as we would be expected to do.”
“That means that if a public interest argument was mounted, a magistrate or a jury, in deciding whether the condition in subsection (1)(c)—the “no reasonable excuse” condition—had been met, would balance the public interest argument, but it would not be determinative. A balancing exercise would be performed. I hope that provides some clarity about the way that will operate in practice.”
“The two work together. On the reasonable excuse condition, for the offence to have been committed, it has to be established that there was no reasonable excuse. The matter of public interest condition—I think the hon. Lady is referring to subsection (5)—simply illustrates one of the ways in which a reasonable excuse can be established, but, as I said in my remarks, it is not determinative. It does not mean that someone can say, “There is public interest in what I am saying,” and they automatically have a reasonable excuse—it does not work automatically like that. That is why in brackets at the end of subsection (5) it says “but that does not determine the point”.”
“Clearly, it is an adjacent area to this and it will represent substantial progress. I understand that it can sometimes be hard to establish intention, but there will be circumstances in which the context of such an incident will often make it clear that there was an intention to cause alarm, distress or humiliation.”
“Secondly, as set out in subsection (1)(a), there must be an intention to cause the person who sees the image alarm, distress or intimidation. I understand the point that establishing intent could, in some circumstances, present a higher hurdle. As we discussed in relation to clause 150, we are, separately from this, working on the intimate image abuse offence, which does not require intention to be established; it simply requires lack of consent. I was not aware, until my right hon. Friend mentioned it a few moments ago—she was ahead of me there—that the Law Commission has given a timeframe for coming back. I am not sure whether that implies it will be concomitant with Ministry of Justice agreement or whether that will have to follow, but I am very pleased to hear that there is a timeframe.”
“I thank the Members who have contributed to the debate. Rather like with the provisions in clause 150, which we discussed a few minutes ago, a difficult and delicate balance needs to be struck. We want to criminalise that which should be criminal, but not inadvertently criminalise that which should not be. The legal experts at the Law Commission have been studying the matter and consulting other legal experts for quite some time. As my right hon. Friend the Member for Basingstoke said in her excellent speech, their recommendations have been our starting point. It is probably worth making one or two points about how the clause works. There are two elements of intention, set out in subsection (1). First, the act of sending has to be intentional; it cannot be done accidentally. I think that is reasonable.”
“Member for Pontypridd and my right hon. Friend the Member for Basingstoke have described would generally support the fact that there is a bad intention, but we have to be a little careful not accidentally to draw the line too widely. If a couple are exchanging images, do they have to consent prior to the exchange of every single image? We have to think carefully about such circumstances before amending the clause.”
“It is a fair question. There might be circumstances in which somebody simply misjudges a situation—has not interpreted it correctly—and ends up committing a criminal offence; stumbling into it almost by accident. Most criminal offences require some kind of mens rea—some kind of intention to commit a criminal offence. If a person does something by accident, without intention, that does not normally constitute a criminal offence. Most criminal offences on the statute book require the person committing the offence to intend to do something bad. If we replace the word “intent” with “without consent”, the risk is that someone who does something essentially by accident will have committed a criminal offence. I understand that the circumstances in which that might happen are probably quite limited, and the context of the incidents that the hon.”
“We need to draft the clause in such a way that it does not inadvertently criminalise those communities—I have been approached by members of those communities who are concerned.”
“If we severed them, we would have to add another qualification. It is clear that there is scope for further examination of clause 156. That does not necessarily mean it will be possible to change it, but it is worth examining it further in the light of the comments made by my right hon. Friend. The testimony we heard from witnesses, the testimony of my right hon. Friend and what we heard from the hon. Member for Pontypridd earlier do demonstrate that this is a widespread problem that is hugely distressing and intrusive and that it represents a severe violation. It does need to be dealt with properly. We need to be cognisant of the fact that in some communities there is a culture of these kinds of pictures being freely exchanged between people who have not met or communicated before—on some dating websites, for example.”
“I will commit to consider the clause further, as my right hon. Friend has requested. It is important to do so in the context of the Law Commission’s recommendations, but she has pointed to wording in the Law Commission’s original report that could be used to improve the drafting here. I do not want to make a firm commitment to change, but I will commit to considering whether the clause can be improved upon. My right hon. Friend referred to the “likely to cause harm” test, and asked whether recklessness as to whether someone suffers alarm, distress or humiliation could be looked at as a separate element. We need to be careful; if we sever that from sexual gratification, we need to have some other qualification on sexual gratification. We might have sexual gratification with consent, which would be fine.”
“The hon. Member for Pontypridd says from a sedentary position that they have given consent. The consent is not built into the website’s terms and conditions; it is an assumed social norm for people on those websites. We need to tread carefully and be thoughtful, to ensure that by doing more to protect one group we do not inadvertently criminalise another. There is a case for looking at the issue again. My right hon. Friend has made the point thoughtfully and powerfully, and in a way that suggests we can stay within the confines of the Law Commission’s advice, while being more thoughtful. I will certainly undertake to go away and do that, in consultation with my right hon. Friend and others.”
“My hon. Friend makes a very powerful and important point. Hopefully, people listening to our proceedings will hear that, as well as those working on media literacy—principally, Ofcom and the Government, through their media literacy strategy. We have had a couple of specific tips that have come out of today’s debate. My right hon. Friend the Member for Basingstoke and my hon. Friend the Member for Don Valley mentioned disabling a device’s airdrop, or making it contacts-only. A point was also made about inadvertently sharing geolocations, whether through Snapchat or Strava. Those are two different but important points that the general public should be more aware of than they are.”
“The clause cross-references schedule 13 and sets out amendments to existing legislation consequential on the communications offences in part 10. Schedule 13 has a number of consequential amendments, divided broadly into two parts. It makes various changes to the Sexual Offences Act 2003, amends the Regulatory Enforcement and Sanctions Act 2008 in relation to the Malicious Communications Act 1988, and makes various other changes, all of which are consequential on the clauses we have just debated. I therefore commend clause 158 and its associated schedule 13 to the Committee. Question put and agreed to. Clause 158 accordingly ordered to stand part of the Bill. Schedule 13 agreed to. Clause 159 Providers that are not legal persons Question proposed , That the clause stand part of the Bill.”
“Member for Pontypridd has summarised the provisions in this group very well, and I have nothing to add to her comments. Question put and agreed to. Clause 159 accordingly ordered to stand part of the Bill. Clause 160 Individuals providing regulated services: liability Amendment made: 159, in clause 160, page 133, line 6, after “71” insert “or Schedule (Recovery of OFCOM’s initial costs)”.— (Chris Philp.) This amendment ensures that, if the provider of a service consists of two or more individuals, those individuals are jointly liable to pay a fee demanded under NS2. Clause 160, as amended, ordered to stand part of the Bill. Clause 161 ordered to stand part of the Bill. Schedule 14 agreed to. Clause 162 Information offences: supplementary Question proposed , That the clause stand part of the Bill.”
“To answer the question a little bit better than I did this morning, the place to go is today’s amendment paper. The relevant provisions are on page 43 of the amendment paper, in paragraph 7(5) of Government new schedule 2, which we will debate later. If we follow the drafting through—this is quite a convoluted trail to follow —it states that the cost can be recouped over a period that is not less than three years and not more than five years. I hope that gives the hon. Member for Aberdeen North a proper answer to her question from this morning, and I hope it provides clarity and points to where in the new schedule the information can be found. I wanted to take the first opportunity to clarify that point. Beyond that, the hon.”
“The shadow Minister has set out clearly the purpose of and intent behind these clauses, and how they work, so I do not think I will add anything. I look forward to our future debate on the new clause. There is one point of correction that I wish to make, and it relates to a question that the hon. Member for Aberdeen North asked this morning and that is germane to amendment 159. That amendment touches on the arrangements for recouping the set-up costs that Ofcom incurs prior to the Bill receiving Royal Assent. The hon. Member for Aberdeen North asked me over what time period those costs would be collected, and I answered slightly off the cuff. Now I have had a chance to dig through the papers, I will take this opportunity to confirm exactly how that works.”
“Clause 165 provides further information about how information-related criminal offences will operate under the Bill when the regulated provider is not a legal person—when it is, for example, a partnership or an unincorporated association. I hope the clauses give the specificity and clarification required to operate the personal criminal liability, which gives the enforcement powers in the Bill such strong teeth. Question put and agreed to. Clause 162 accordingly ordered to stand part of the Bill. Clauses 163 to 165 ordered to stand part of the Bill. Clause 166 Extra-territorial application Question proposed, That the clause stand part of the Bill.”
“Clause 163 goes further to explain how defences to accusations of criminal offences can operate, and it is helpful to have that clearly set out. Clause 164 allows for corporate officers of regulated providers to be found liable for offences committed by the provider under the Act. For example, corporate officers can also be found liable for information offences committed by their company. That is extremely important, because it means that senior personnel can be held liable even where they are not named by their company in an information response. That means the most senior executives will have their minds focused on making sure the information requirements are properly met.”
“Once again, the shadow Minister has described the various clauses in this group. They speak, as she said, to the important and very strong measures around information offences. It is so important that where someone fails to provide the information that Ofcom requires, not only is there a liability on the company to pay very large fines or have their service cut off, as we discussed earlier, but individuals have criminal liability as well. Clause 162 gives further information about how information-related criminal offences operate and how criminal proceedings can be brought against a person who fails to comply with an information notice or a requirement imposed when Ofcom exercises its powers of entry and inspection.”
“Question put and agreed to. Clause 166 accordingly ordered to stand part of the Bill. Clause 167 ordered to stand part of the Bill. Ordered, That further consideration be now adjourned . —(Steve Double.)”
“Obviously, companies such as Facebook are firmly in scope, as hon. Members would expect. The clause makes it clear that Ofcom can request information held outside the UK and interview individuals outside the UK, if that is necessary for its investigations. Clause 167 explains that the information-related personal criminal offences in the Bill—for example, failing to comply with Ofcom’s information notices—apply to acts done inside and outside the UK. That means that those offences can be criminally prosecuted whether the perpetrator is based in the UK or outside the UK. That will send a clear message to the large global social media firms that no matter where they may be based in the world or where their services may be provided from, we expect them to comply and the enforcement provisions in the Bill will apply to them.”
“Last week or the week before, we debated extensively the points about the extraterritorial application to protecting children, and I made it clear that the Bill protects people as we would wish it to. Clause 166 relates to extraterritorial enforceability. It is important to make sure that the duties, enforceable elements and sanctions apply worldwide, reflecting the realities of the internet, and clause 166 specifies that references to regulated services in the Bill include services provided from outside the United Kingdom. That means that services based overseas must also comply, as well as those in the UK, if they reach UK users. The clause ensures that Ofcom has effective information-gathering powers and can seek information from in-scope companies overseas for the purposes of regulating and enforcing the regime.”