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The Earl of Longford: My Lords, before the noble Lord sits down, may I ask him where he got the extraordinary idea that Queen Victoria was repelled by her loose-living husband?

Lord Annan: My Lords, did the noble Earl say "loose-living husband"?

The Earl of Longford: My Lords, yes.

Lord Annan: My Lords, I said "uncles"--not the Prince Consort!

6.54 p.m.

Lord Ashbourne: My Lords, I shall not detain your Lordships long. I want to commend the noble Earl, Lord Halsbury, for his perseverance in bringing this matter to our attention for a second time. Many of us in this House and in the wider public are astonished that

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the law does not have more teeth with which to deal with the horrific material that some of us have had the misfortune to come across. This is the first debate on the subject in this Parliament, so I hope that there will be a full range of views heard.

The noble Earl, Lord Halsbury, has given us food for thought with this Bill. How can we successfully regulate the sensitive issue of pornography as we head rapidly towards the next century and when global technology allows hard-core pornography to be transmitted around the world in a matter of seconds?

I am encouraged that so much attention in recent years has focused on child pornography and making sure that something is done about that particularly distasteful material. However, I am sure that noble Lords will agree that there is no room for complacency. It is a sad fact that pornography impacts upon relationships. It is stories of relationships damaged by this insidious material that convinces me that we cannot ignore the issue of what is and is not considered legally obscene.

The noble Earl, Lord Halsbury, has adopted a list approach--favoured in principle by the police--for defining what should be obscene. I commend the noble Earl on the tremendous industry he has put into compiling this lengthy schedule. I shall be interested to hear what the Minister has to say on that approach and the position taken by the Government on the Obscene Publications Act. I am sure that the House will have suggestions for refining the test proposed by the noble Earl and I shall watch with interest developments in Committee. Perhaps we shall conclude that a wide review of this issue is needed just as the Government has done for sex offences.

On a related subject, I am still concerned about the content of teenage magazines and the possibility of them falling into the wrong hands. It was brought to my attention that a 12-year-old girl purchased a copy of a recent issue of More. I understand that that magazine is aimed at 19 to 25-year-olds and falls outside the guidelines agreed several years ago for teenage magazines. That issue of the magazine contains explicit information which concerned the family of the young girl. Perhaps the Minister will write to me following this debate on how the teenage magazine guidelines are working and how to prevent younger girls from being sold magazines that are clearly inappropriate. Of course, it is not only girls' magazines that fall into the wrong hands. Men's magazines, such as Loaded, can also be bought by young teenage boys, which is as much of a concern.

I return to the main theme of the debate. I hope that we shall see some firm steps taken to reduce the amount of pornography legally available in this country.

6.57 p.m.

Lord Northbourne: My Lords, I apologise for detaining the House by speaking in the gap. Your Lordships can console yourselves that if I had been in time to put down my name for the debate I would probably have spoken for longer.

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I wish to make two points. First, I congratulate the noble Earl on an enormously innovative approach to the issue. He confounds those who say that there should be a retirement age for your Lordships.

Secondly, the substantive point that I make is that censorship of obscenity or pornography is often regarded and presented as a restriction of liberty. It is equally true that the results of the promotion and publication of obscenity and pornography can be a limitation of liberty. It can be a limitation of the liberty of women to walk dark streets in safety; a limitation of the liberty of parents to be confident that their children will not be the subject of a paedophile attack, induced into child pornography or seduced in other ways; and a limitation of the liberty of the taxman who has to pay for the cost of policing and punishing sexual crime and violence.

There is absolutely no doubt from the evidence in America over the past couple of decades that there are strong links between pornography, sex crimes and violence. After a while soft pornography ceases to give the thrills that it did at first and people move on to hard pornography and from hard pornography they move on to acting out their fantasies. That has been proved again and again, and the evidence is now incontrovertible.

The noble Lord, Lord Annan, made great play with the 1959 Act. Things have moved on since then. In 1970 the US Commission on Pornography concluded that pornographic material has its cathartic value. By 1986 a great many members of that commission had decided that they were wrong and the Attorney-General's Commission on Pornography in the United States concluded that,


    "exposure to pornography produces an enhanced interest in deviant sexuality".
The process is referred to as "escalation". It results from the concept of normalisation--that is, the more you read about these things happening, the more you begin to believe that they may not be so awful after all and to say, "Lots of other people are doing them, so why shouldn't I?". One thus becomes desensitised. In any consideration of this subject, let us remember those who are today suffering from the crimes which arise out of pornography.

6.59 p.m.

Lord Cope of Berkeley: My Lords, the noble Earl, Lord Halsbury, has once again done the House a service in placing this Bill before us and in his great efforts of research and preparation. Personally, I should like him to remain eligible to take part in debates in your Lordships' House but, sadly, he is likely to be proved right about what is perhaps his swan song.

No Chief Whip would make suggestions about how one should vote on a matter such as this, even if this were not a Private Member's Bill but perhaps I should make it clear at the outset that the opinions I express are my own.

As has already been said, over my lifetime, which is only two-thirds of that of the noble Earl so far (in both cases), values have deteriorated out of all recognition, to the great detriment, I believe, of national life. As has

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been demonstrated in the past few minutes, this House is very long-sighted, even if few of us can look back as far as the noble Earl and even if we can no longer see our collective future as clearly as we should like. It sometimes seems as if it will be impossible ever to reverse the process of decline and to raise standards once again. It must have seemed like that to many people in the last quarter of the 18th century but, by the last quarter of the 19th century, the pendulum had swung fully across, as the noble Lord, Lord Annan, reminded us. It was essentially public opinion, led by Queen Victoria and others, which reversed that pendulum swing. I believe that the time is coming when that will happen again.

However, the legal problems which have been discussed remain. Part of the reason for the decline in standards and values is that the limits were not fixed objectively but in terms of "tending to deprave and corrupt". As has already been said, the views of juries on that have altered as, notch by notch, the standards to which we have all become used have themselves declined. Competitive pressures on newspapers and magazines have led their proprietors and editors and, for that matter, television controllers to titillate audiences by ever more risque material both of a sexual and of an increasingly violent nature. The television authorities have proved reluctant to control that effectively, so that the boundaries have been pushed back and back, and juries have responded accordingly.

Sooner or later, however, that process must stop--and it will take a change in the law to do it. As far as I can see, the best legal way of doing it is by something along the lines of this Bill. If the law specifically defines obscene acts by a list such as is provided in the schedule, it will be possible to enforce it. One can attempt either to pick out all those acts at once, in a long list such as is provided in the current Bill or, by the rifle-shot method of a short list, to pick off only a few items to start with. Obviously, that is a matter for consideration in Committee.

At present, enforcement is very difficult. For a time, I was Paymaster General in the Treasury. I remember discussing this matter on a number of occasions with Customs officers and being shown magazines which had been confiscated at ports and airports. They were quite appalling. Customs and Excise had the advantage that the law on importation prevents the importation of indecent or obscene books or articles--that is not the whole of it, but it is the nub of that law--and that made it a little easier for Customs and Excise than for the police in comparable circumstances. However, enforcement is still difficult. Indeed, it is made more difficult by a European court ruling that anything which can legally be printed here cannot be refused importation because that is against free trade. The 1959 Act thus came into play even in Customs and Excise cases. It is therefore difficult for Customs and Excise also to draw a line and to know which confiscations by its officers at a port would be supported by a court. That is why I think that legislation such as this, and a list of the type contained in this Bill, will be necessary.

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As I have said, it is a most difficult matter, but the principle of this approach has much to commend it. We should all be grateful to the noble Earl for putting this Bill before us and for restarting the debate in this form at this time.

7.5 p.m.

Lord Williams of Mostyn: My Lords, I too am grateful to the noble Earl, Lord Halsbury, for returning this subject to us. The issue of obscenity and the extent of the controls which it is appropriate for society to exercise over the availability of certain types of material induce strongly held views, as we have heard. As the noble Lord, Lord Cope of Berkeley, indicated, this subject raises the difficult issues of morality and public decency. It relates to the relationship between individual interests and those of society at large. It involves difficult questions about the role and effectiveness of the criminal law in a society which all noble Lords who have spoken have described as changing rapidly.

The noble Viscount, Lord Brentford, asked me whether we were thinking of a test of what reasonable people would consider offensive. No; the definition of "reasonable people" is very difficult and we believe that "offensiveness" is a lower test than "harm" and that that test would therefore have the reverse effect to that intended.

The noble Lord, Lord Ashbourne, asked me to write to him about a particular aspect, and I shall, of course, do so.

Perhaps I may turn to the faults of this Bill. I am not critical at all of the enormous amount of research and effort which the noble Earl has put into his Bill, but we have not yet considered the Bill. Most of the speeches have described a conceptual approach to the reform of the law, but we cannot look at law reform on a conceptual basis; we must look at the nuts and bolts, as I shall in a moment. However, perhaps I may first describe how the present law works.

As your Lordships know, that legislation is the Obscene Publications Act 1959. The test of obscenity in Section 1 is whether an article, if taken as a whole, is such as to tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, hear or see the material embodied in it. Section 4 of that Act--I think we should bear in mind that the noble Earl's Bill specifically seeks to delete that provision--gives a defence of public good. Such a defence is absent from the noble Earl's Bill. I am certain in my own mind that that is a deliberate absence because the noble Earl wants to strike out the defence. I am not criticising the noble Earl; he has done that deliberately; I am simply pointing out the consequences of the Bill.

One needs to bear in mind also--this has not yet been touched on--the extensive powers of search, seizure and forfeiture that are available to magistrates by virtue of the Obscene Publications Act 1959. Several noble Lords have said that it is difficult to get juries to convict. That has been recited to me at first hand by senior officers in the obscene publications squad. Perhaps I may give the figures. In 1997-98, there were 275 prosecutions and

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189 convictions under the Act. However, that relates to proceedings before a jury. The powers of search and seizure are quite wide and extensive. If a magistrate is,


    "satisfied by information on oath that there are reasonable grounds for suspicion that, in any premises within the relevant area"--
that is his petty-sessional area--


    "on any stall or vehicle, premises or stall specified in the information, obscene articles are kept for publication or gain",
then a warrant may be executed, the material may be seized and an order for forfeiture may be made, with, of course, the power of appeal. So one can strike the commercial pornographer in that way. We should bear that fact in mind.

I promised to deal briefly with the scheme of the Bill and to indicate the view that I outlined earlier; namely, that it simply is not workable in any circumstance. Perhaps I may invite your Lordships to consider the detail of it. I do not apologise for so doing because we have not looked at the detail at all. I have in mind Section 2 of the 1959 Act which covers the prohibition of the publication of obscene matter in the way that the Act defined it and in the way that I have already cited.

Clause 2 of the Bill says:


    "For Section 2 of the 1959 Act there is substituted"--
and then the rubric of "Offences" appears in the margin--


    "Subject to section 2A below, any person who knowingly, whether for gain or not-- (a) publishes, (b) distributes, transports or delivers, (c) provides for the public or private viewing of, (d) advertises the availability of, or (e) contributes financially towards the publication, distribution, public viewing or advertisement of, any obscene article shall be guilty of an offence".
I shall return to Section 2(1)(e) in a few moments to illustrate the dangers involved. However, we need to find out what "obscene" means by virtue of the noble Earl's definition in the Bill. We find the definition of "obscenity" as being that which is,


    "set out in the Schedule".
But no one has yet looked at the schedule in any detail. I must confess my own innocent ignorance in that many of the words in the schedule were not immediately familiar to me; indeed, they are not presently familiar to me. Nevertheless, I recognised one or two of them. The title refers to:


    "ACTIVITIES RELEVANT TO THE DEFINITION OF OBSCENITY";
we need to be quite careful about this. One of the activities relevant to that definition is:


    "Display of human genital organs".
So Michelangelo's productions and drawings in life classes are obscene. Moreover, to take the matter a little further, a vast body of Italian painting is obscene. As we know, large numbers of paintings which are on display in both private and public collections do display human genital organs.

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The schedule goes way beyond the normal definition of obscenity that one would expect; for example, in the list we find:


    "Human urinary or excretory functions".
These are remarkable propositions which need to be scrutinised with great care. I say that because I had not myself encountered the proposition in the past that urinary or excretory functions of the male species would be regarded as obscene if they were described or spoken about. There is much more damage here. However, there is something which is rather more lighthearted--namely, "Interlingual kissing". I am sorry to tell your Lordships that I had to seek assistance from my private office in that respect. I can safely say that apparently it is something which is as innocent as French kissing. But I am subject to correction from the noble Earl.

Let us move on to something more important:


    "Mutilation, torture or other acts of gross violence towards humans or animals, whether real or simulated".
Let us focus on that for a moment or two because it is serious. Would this apply--it undoubtedly would on this test--to any sober, scholarly work about the monstrous tortures inflicted in Nazi Germany upon 6 million Jews, gypsies and homosexuals? Let us consider it again:


    "Mutilation, torture or other acts of gross violence towards humans or animals, whether real or simulated".
Does that mean that a scholarly work about the Holocaust is obscene? I repudiate that. Does it mean that photographs which show the monstrous bestiality of the Nazi regime are obscene? Again, I refuse to accept that. Further, does it mean that descriptions in works like the Bible are to fall within the category of obscenity because masturbation or gross violence is mentioned in that work?

Perhaps I may put to your Lordships a deeply sober and solemn thought. Does that wording mean that descriptions whether by word in the Bible or in the Gospels or in religious artifacts, paintings and so forth of the Crucifixion of our Lord are obscene? They would fall within that definition. I repeat it yet again:


    "Mutilation, torture or other acts of gross violence towards humans".
That is not a blasphemous observation that I make; indeed, it is a deeply serious one.

There is a poet and playwright who is our national genius. I do not know where that definition would leave his productions--namely, "Othello", "King Lear" or "Coriolanus". Need I stop, or need I go on? The grossest violence, almost the most unimaginable violence, is portrayed in those plays. It is idle to say that it was a long time ago and that children can safely watch them.

Perhaps I may be a little more lighthearted. Nymphomania is described as obscene and, therefore, any work of history--I believe that I am safe here--about Empress Catherine the Great would be in extreme difficulty. There is no reference to male over-indulgence--in other words, the male equivalent of nymphomania--so I shall not say anything about any possible records of current political life that one might or one might not be thinking about.

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Some of the points are serious, while others tend to be a little more frivolous. However, the point that I am seeking to make is exactly the one that the noble Lords, Lord Cope of Berkeley and Lord Annan made; namely, that it is not easy to get definitions right. If one has such an extensive list, which was certainly an eye-opener to me in the way I outlined, it simply is not workable.

The noble Earl was kind enough to indicate his assent by nodding his head when I put forward the proposition that he had deliberately, as his act of policy, so to speak, taken out the defence of the "public good". He does put defences in the legislation; but, similarly, they do not work. I shall spend a few moments explaining why that is so. The defence in fact is found in what are called "exceptions" in new Section 2A which says:


    "No offence is committed under section 2"--
that is, the offence-creating section which I read out earlier--


    "if any of the conditions described in sub-sections (2) to (4) is satisfied".
The exceptions, or defences, are as follows:


    "The article is made for public viewing for education in matters concerning health, hygiene or medicine, and has been certified by the Secretary of State".
So, far from reducing the power of the Home Office--and I see the noble Lord, Lord Baker, sitting in the Chamber, no doubt remembering the complaints regularly made about the Home Office wanting to interfere too much in people's lives--the Bill would require the Home Secretary to certify matter which is for public viewing for education regarding health, hygiene or medicine. That is simply not workable.

Subsection (3) of new Section 2A continues:


    "The article consists of a publication of a report of judicial proceedings or of any evidence admitted in such proceedings";
one can understand that. But then the overarching exemption follows:


    "The article is published or publicly exhibited--


    (a) in the interests of art, literature or science"--
with no mention of religion, and--


    "(b) in whole or in part at public expense".
I shall spend a few moments on this analysis because it leads us to a position of unworkability, and really-- I say this as gently as I can--to a position which is nonsensical in this sort of analysis. It would mean that I could publish something in the interests of art, literature or science which would otherwise contravene the very wide obscenity test contained in the schedule. If I published it at public expense "in whole or in part", I would have a saver; but if I am a private patron and I am not funded by the public, I would have no saver. That is no way to litigate--or rather to legislate! It certainly would be a way to litigate. In fact my former colleagues at the Bar Council would regard this as a long running pension indeed! In the absence of the noble and learned Lord the Lord Chancellor, "fat catterie" might well return to our land.

The provision simply will not work. I simply cannot understand why, if you publish in the interests of art, literature or science but not religion, and in whole or in part at public expense, you are saved, whereas if you

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are a public philanthropist and are not funded at public expense you are not saved. Therefore the great private collections of the 19th century philanthropists would not be exempt from the measure, but the collections funded at public expense by the equivalent of the alderman in Beachcomber would be safe.

It is worth thinking about the following point. I am perfectly happy for it to be suggested that I am wrong in my analysis, but I do not think I am. If the Bible offends against the definitions of obscenity--I hope I do not need to repeat them, as I hope that noble Lords attended Sunday school and can remember them perfectly well--anyone who, in the proposed new subsection 2(1)(e),


    "contributes financially towards the publication, distribution ... or advertisement",
of the Bible (for example, the Society for Promoting Christian Knowledge) is committing a criminal offence. As I said, I am perfectly happy to have my analysis destroyed but I do not think it is capable of being destroyed.

I recognise that one or two of the remarks I have made have been rather lighthearted. However, there is something much more fundamental at issue here. The mere fact that some people behave differently to what your Lordships desire is not sufficient to make that criminal. There are many people who have different views on sexuality to what may be considered the norm, whatever the norm is. There are homosexuals, bisexuals and transsexuals who produce perfectly legitimate, respectable works of art or literature--I am not being patronising in the slightest--and who deal with their problems, their desires and their views in a perfectly legitimate way. It is not right to use the law to silence them. However, that is what this Bill would do.

I refer to the point raised by the noble Lord, Lord Annan, about the obsession--as it sometimes appears in this country--with purely sexual matters. There are many offences against mankind which are not related to sex. I repeat that I am grateful to the noble Earl for the enormous amount of research which he has done. That has rightly been applauded. I wish to be able to read accounts of the First World War, or of the conflict in Vietnam, or accounts of slavery in the southern states, or Lincoln's noble work before 1865. However, they are all obscene on the definition we have before us.

7.23 p.m.

The Earl of Halsbury: My Lords, first of all I thank everyone who has taken part in this debate. In so far as many of their remarks have been kindly disposed towards me, I thank them for that. It would be a mistake to think that I am at too deep an issue with the noble Lord, Lord Annan. He is a friend of mine and he has done the next best thing to what I would have liked, which is what I predicted he would do. Therefore I am grateful to him for showing me right on that score.

I can give the noble Lord, Lord Williams of Mostyn, a name for the male equivalent of nymphomania. It is known as satyriasis. How it escaped inclusion in my list I do not know. However, I am grateful to the noble Lord

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for the correction. Clearly this Bill needs a Committee stage and therefore I must proceed with it on the assumption that it will receive a Committee stage. But what kind of a Committee stage will it receive? What I have done, as it were, to "keep the game going", is to write to the Chairman of Committees, the noble Lord, Lord Boston of Faversham, to ask him to refer this whole matter to the Liaison Committee which is to meet at the end of the month to ask that committee how it thinks the Bill may best be dealt with; namely, whether it should be dealt with by a Select Committee of the House, or by a committee of inquiry, or something of that kind. In the meantime I wish the Bill to stand at this stage. I shall bring it back with a later proposal, either to refer it to a committee, or some alternative. On that basis, I hope that your Lordships will give it a Second Reading.

On Question, Bill read a second time, and committed to a Committee of the Whole House.


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