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Lord Astor of Hever: I need not detain the Committee long in speaking against the inclusion of this clause. I was pleased to see that the Government are in accord with us on this issue. I am grateful for the letter which I received from the noble and learned Lord explaining the rationale behind omitting this clause. It states:
We fully support this principle. Clause 51 would provide a dangerous loophole whereby a manipulative care worker might easily induce an unwilling victim to agree to corroborate his account of a sexual relationship which preceded legislation. We welcome the fact that the Government have conceded the dangerous potential of this clause and have chosen to remove it from the Bill.
The noble Baroness said: In moving Amendment No. 285A and speaking to Amendment No. 286, I should like to open my remarks by referring ahead briefly to Clause 59 which makes it clear that it will be illegal for any person under the age of 18 to participate in commercial pornographic depictions and images which can be distributed, advertised or promoted in the wider world for gain. That clause is entirely to be welcomed and commended. It goes some way towards bringing us into line with the United Nations Convention on the Rights of the Child, but it does not go the whole way. The UN Convention talks about protecting under 18 year-olds from all kinds of pornographic exploitation: it does not limit itself only to considering commercial pornography.
Clause 52 seeks to deal with the non-commercial end of the spectrum but, in my view, it fails to do so at all adequately. My amendment to Clause 52 falls into two parts. I shall deal with the second part first, and very briefly, because I see that my noble and learned friend the Minister and others are proposing to accept that part of the amendment which will delete subsection (5).
As it stands, subsection (5) would create two classes of pornography involving 16 and 17 year-old children: that which was produced before the commencement of the Act, which would remain legal, and that which was produced after the commencement of the Act, which would become illegal. Goodness knows, our law enforcement agencies have enough trouble with this whole area without imposing a further burden which would require them to establish precisely when every image was made. One can just imagine when a man was arrested, the first thing he would say is, "Sorry Guv, I thought these pictures were all made before April 2003".
I fear that the same muddled thinking and the same overly complicated and impractical reasoning is in evidence when we consider the other two subsections I seek to delete; that is, subsections (3) and (4). As it stands, the effect of the clause will again create two categories of pornography involving 16 and 17 year-old children. It would be entirely legal for a 47 year-old man to take sexual pictures of a 16 or 17 year-old child, or of himself and that child performing sexual acts. Provided that only he and the child possessed the images, no crime will have been committed. So we have an image that is made and produced entirely lawfully but becomes unlawful if someone else sees or is given a copy of it.
Alternatively, I have been advised that the image could become unlawful if, after it has been taken, the child withdraws her or his consent or, perhaps, if the adult were to withdraw his or her consent. That is plainly a ridiculous situation.
I believe fundamentally that no child of 16 or 17 years should be put in a position where they can be pressurised into taking part in pornographic or indecent depictions, especially since in these digital days it is easy to foresee circumstances where the consequences for the child can be permanent and irrevocable. It makes the idea of the possibility of withdrawing consent absurd.
Now that digital cameras are more widely owned and used, any digital image is just a mouse-click away from the Internet. Once an image reaches the Internet, it becomes a permanent record that could haunt and harm a child for the rest of their life. Only an adult should be empowered to make such a decision, one that could have harmful and lifelong consequences. Very often the person applying pressure to a 16 or 17 year-old child will be essentially in an abusive relationship with that child.
I am told that such behaviour is legal, but that does not make it right and it is not an answer. People can do other things legally that we are proposing to make illegal in the future, so in effect if we do not take this opportunity to amend the Bill in the way I propose, this House would be positively condoning the idea that 16 and 17 year-olds can take part in pornography, knowing also that in many circumstances the notion that they may later be able to withdraw their consent is entirely ridiculous. That cannot be right.
Continuing to allow 16 and 17 year-olds to take part in pornographic and indecent depictions in the digital age fails to comprehend the way in which easily and cheaply available digital technology has greatly reduced the barriers to distribution.
Young people aged between 16 and 17 fall in and out of relationships almost daily. It is not hard to imagine a "wronged" or "dumped" boy friend posting an image on the Internet as an impulsive act of revenge. Then the image will be permanent. There may already have been many cases of that kind. I fear that, if the clause is passed unamended, many more cases will arise.
I appreciate that the Bill proposes to make it a crime for any kind of distribution to take place outside the circle of consenting actors, but in reality things will be very different. I believe that many young people and others will fail to understand that whereas they can make, take or possess an image perfectly lawfully, later it could become an illegal image if one or more of the actors withdraws their consent. Some will even find it hard to understand that they can make, take or possess an image lawfully, but not distribute it to anyone outside the range of actors depicted or involved. I use the term "actors" because it would be possible to have multiple participants and multiple makers and takers. If one of the children involved later withdraws consent, does it become illegal for all or any of the other participants to carry on possessing the image?
In all the circumstances, is it not simpler and more defensible to set a single age limit for participating in any and all forms of pornography, and for that age limit to be 18? My amendment would create a single age of consent at 18 years, the age of majority. I beg to move.
Baroness Noakes: I shall speak to Amendment No. 286, which is grouped with Amendment No. 285A. I am delighted to see that this is the most popular amendment in the Marshalled List to date and has even attracted the support of the Minister.
I have tabled the amendment because it is difficult to prove when a photograph or pseudo-photograph was made. Offences under the 1978 Act include the distribution and possession of photographs. If a case was brought it would be difficult to prove that the date of commencement of the Act in 2003 was the significant point for triggering the offence. That is not realistic and we see no useful purpose for subsection (5).
Amendment No. 285A seeks to remove the limited exceptions for 16 and 17 year-olds. I take a slightly different view from the noble Baroness, Lady Thornton. These are narrowly drawn exceptions which reflect the fact that 16 and 17 year-olds can give valid consent to sexual intercourse and other forms of sexual activity. While the clause treats 16 and 17 year-olds as childrenindeed, Clause 52 brings them within the definition of "children"that is only a partial statement of the truth because they are as much adults as they are children.
The limited exceptionswhich relate to photographs in a relationship, in effectare a sensible way of balancing the desire to extend the protection to the age of 18 in accordance with international requirements while recognising that valid relationships can exist.
Baroness Howarth of Breckland: I support the amendment. While I accept that the exceptions are narrowly drawn, the way in which young people operate in the modern world causes me huge concern. My experience comes from years of childcare and working with young women who were in prostitution apparently by consent, but when you dug slightly on the surface you found it was certainly not by consent. In my work with the Independent Committee for the Supervision of Telephone Information Servicesthe premium rate watchdogI spent years ensuring that young people were not depicted for the use of telephone sex lines.
Some noble Lords may say that that is far away from this narrowly drawn amendment, but young people see such situations as glamorous and become engaged in them, apparently by consent, and then seriously regret it. I fear that if this is written into statute it will simply give licence to behaviour which at present is held in check.
Even more serious, it would give an opening to those who would threaten and coerce young people into unwanted sexual behaviour. The abuser would of course say that the young people had consented but, as the noble Baroness, Lady Thornton, pointed out, older abusers often use the power of a relationship to put people in fear and therefore say that they had given their consent.
Let me give an example of a group of 16 and 17 year-old young men who, together with younger people of 14 and 15, were being photographed and the photographs sold. These people believed that the photographs were being taken and shared between friends, but they called Childline because they became anxious about the wider distribution of the photographs. They would not give names. It was only by using the information they did give and through good contact with the police that we were finally successful in bringing a prosecution.
These were not simple issues. There was a complexity of understanding among the young people as to what the photographs would be used for and their subsequent discovery that they would be used more widely. Even if young people of 16 believe that they have consented to such photographs, it can destroy their lives. They will deeply regret in the future the photographs being taken, especially, as the noble Baroness, Lady Thornton, pointed out, when they discover that they have been distributed across the world through the Internet.
Imagine how you would feel if it was your child in these pictures. They are not pretty. They are extremely sordid and sexually explicit. Very often young people may appear to have given consent, but I have listened to them sobbing on the lines at Childline and talking about how they would like to redress and retract what has happened once they understand the full nature of what their apparent consent involved. I am a great believer in children's rights and children making their own decisions, but the young people we are discussing are often vulnerable. I do not believe that they are wise or experienced enough to understand the implications of what they are saying by means of consent. Therefore, I ask the Minister to leave the age of consent at 18 and not reduce it to 16 under any circumstances, however narrowly defined.
Lord Monson: I oppose Amendment No. 285A, not least because it is wholly incompatible with the determined opposition of the Government and of most, though not all, Labour Back Benchers to the valiant efforts of Lady Young, in earlier Bills relating to sexual offences, to protect 16 and 17 year-olds. The noble Baroness, Lady Noakes, put the question much more tactfully and obliquely, but if it is considered that a 16 year-old girl is mature enough to consent to being sodomised, with all the physical dangers involved, by definition she must be mature enough to consent to having a photograph taken. That involves no physical dangers and, for the most partalthough the noble Baroness, Lady Howarth, might dispute itfewer psychological dangers, too.
I also have reservations about Amendment No. 286, but in view of the fact that the noble and learned Lord, Lord Falconer, has added his name to it, it would be a waste of the Committee's time to explain exactly why. Will he clarify two questions, however? Will there be a defence for someone who takes a photograph assuming that the girl in questionit will usually be a girlis 18 or 19 when she is in fact 16 or 17? Secondly, what is a pseudo-photograph? The interpretation Clause 81 refers us to the Protection of Children Act 1978. I dashed down to the library to look up that Act; it is quite short, but nowhere in it does the phrase "pseudo-photograph" appear. I would be grateful for clarification of that point.
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