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Baroness Blatch: I speak in support of the amendment tabled by the noble Baroness, Lady Thornton. As a Home Office Minister, the subject was part of my portfolio, and I remember receiving a great deal of unsolicited mail through the post from vulnerable people who had themselves received unsolicited mail through the post. Many of them were elderly, and they were extremely distressed.

Those people asked me what I was going to do about the problem, but I was given a standard answer that it was an acceptable level of pornography. I discovered to my horror that in urban places such as London, Manchester, Leeds and other major cities where such cases came to court, every time the case was made that this was an acceptable level of pornography that was permitted to be in circulation, that became case law for the whole of the country.

One day, I said to officials in my department, "I want you to put on my desk what is an unacceptable level of pornography, so that I can see the borderline between what is acceptable and unacceptable". I was staggered by what was considered to be legitimate and acceptable. I had to do a double take at the brown envelope that arrived on my desk, which I was forbidden to take out of the office. I saw what I believed to be young people between the ages of 14 and 16 in the most horrendous guises in these illustrations. Some or many of the photographs were actual photographs, as were the videos. There is some pretty unsavoury stuff in circulation.

I understand where the noble Lord, Lord Monson, is coming from. Like him, I believe that there is an inconsistency when Parliament lowers the age of consent and will fight to the death to remove Clause 28, and so on, but will argue against the amendment tabled by the noble Baroness, Lady Thornton. That really is inconsistent. It is for that very reason that I want to be consistent. I believe that 16 year-olds today are schoolchildren. These days very few leave school at 16. The Government are doing what they can to persuade that tail end of young people who try to leave school at 16 to stay on.

When the age of consent was lowered we legalised buggery on girls of 16, 17 and 18 years-old. However inconsistent that is, I want to be consistent. I believe that we as a Parliament should consider the protection of 16 and 17 year-olds. I want to do that.

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We simply cannot go on wringing our hands about all the terrible things that are happening to our young people such as the high incidence of sexually transmitted diseases and teenage pregnancies which are, we are told, more prevalent in this country than any other, while allowing pornographic photography under the law. The noble Baroness, Lady Thornton, made an extremely good speech in which she referred to the nonsense of something being unlawful under the Bill if it is passed being lawful before the Bill is passed. There are many such nonsenses. I believe that for the sake of consistency we should prevent people younger than 18 being involved in the kind of material we are discussing. For all sorts of reasons including coercion, intimidation and the power relationship between two people or often a group of people, people may act in a particular way. However, in the cold light of day they become rueful about what has happened. All kinds of consequences flow from such situations. I support the noble Baroness, Lady Thornton.

Lord Falconer of Thoroton: The purpose of the clause overall is to extend the Protection of Children Act 1978 to cover photographs and pseudo-photographs of children aged 16 and 17. Therefore, the clause extends protection in that regard. I say to the noble Lord, Lord Monson, that a pseudo-photograph is an image, whether made by computer graphics or otherwise, which appears to be a photograph. I hope that that is of some assistance.

We provide an exception to the extension to 16 and 17 year-olds for a person to make, take or possess indecent photographs of children aged 16 and 17 with their consent. The exception is very limited and is designed to ensure that the photographs are seen only by the person who took the photograph and the person in the photograph. It prevents any kind of distribution.

Amendment No. 285A, supported by the noble Baronesses, Lady Howarth and Lady Blatch, would remove that exception so that it would always be an offence to take an indecent photograph of a child of 16 or 17 and it would always be an offence to possess such a photograph even if the two people concerned were married. The amendment would permit no distribution of such photographs if they were taken by a husband of his wife or by a wife of her husband. Under the amendment such distribution would constitute a criminal offence.

I recognise that this is a very difficult area but as the noble Lord, Lord Monson, and the noble Baroness, Lady Noakes, said, the age of consent for sexual activity in this country is 16. It is not possible not to reflect that to some extent in the Bill. We have done so by, as the noble Baroness, Lady Noakes, put it, including as limited an exception as is sensible, but one which reflects the existing law. We think that we have the balance about right in terms of dealing with the exception I mentioned where there is absolutely no distribution of the material.

The examples given by the noble Baroness, Lady Howarth, would be unlawful. As I understood the first example she gave—I may have misunderstood it—there was distribution of the picture she mentioned

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for the purpose of prostitution. Obviously, that would be an offence under the Bill as there was distribution other than to the person who consented. I understood her second example also to involve distribution. It would in addition be unlawful as some of the subjects of the photograph were, as I understood it, under 16. We are talking here only about 16 and 17 year-olds.

For those reasons, I am afraid that the Government are not attracted to Amendment No. 285A. However, the reasons why we support Amendment No. 286 are perfectly clear. The argument for it was put well by the noble Baroness, Lady Noakes, and we are persuaded by it.

Baroness Thornton: I thank Members of the Committee who supported my amendment. The inconsistencies are in Clause 59. As narrowly drawn as the exceptions may be, they do not recognise the reality of the modern world. When my noble and learned friend says that the distribution of the photographs will be limited to the person who takes them and the person who takes part in them, he is not recognising the realities of the modern world, or of young people's relationships and what happens when 15 year-olds, 16 year-olds and 17 year-olds fall out with each other. In my view the exceptions are not narrowly enough drawn.

I accept that the issue about a man and wife—a young married couple—is a problem. Therefore, I am happy to withdraw the amendment on the basis that it is not right for that. However, we need to return to the subject, because I am not satisfied with the answer that I have received from the Minister. The limit that we may propose on the liberty of 16 year-olds and 17 year-olds not to be exploited in such a way is not satisfactory.

Baroness Blatch: Before the noble Baroness withdraws the amendment in order for there to be more reflection, I want to say that distribution smacks of a positive act. Someone physically and positively has to distribute. However, we all know that there are ways for photographs and material to be seen by other people. They can be left around; it can be made certain that people see them, but without someone necessarily having formally distributed them. The noble Baroness is very much more in touch with the real world. Other people would see the material, and proving distribution might be extremely difficult.

Baroness Thornton: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Noakes moved Amendment No. 286:

    Page 24, line 28, leave out subsection (5).

On Question, amendment agreed to.

Clause 52, as amended, agreed to.

Clause 53 [Criminal investigations or proceedings]:

Baroness Thornton moved Amendment No. 287:

    Page 24, leave out lines 35 and 36.

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The noble Baroness said: I thank the Minister for Amendments Nos. 288 and 289, which expand the reason for my amendment. At the moment, there is no defence in law to the charge of making a child pornographic image. The word "making" covers copying an image, say from a hard disc on to a floppy disc or a CD. That means, however, that even law enforcement officials and lawyers involved in a case cannot lawfully be handed copies of the evidence. There have been cases where that has been a problem. That is obviously ridiculous, and the effect of the amendment is to create a system that authorises a limited series of people to be able to make such images as their legal jobs require. I beg to move.

Lord Falconer of Thoroton: We support Amendment No. 287, tabled in my name and that of the noble Baronesses, Lady Thornton and Lady Noakes. It would remove the separate exception for the purposes of criminal proceedings from the clause. However, it is clearly necessary to allow for "making" images in the course of criminal proceedings, as the noble Baroness said. It may have been her intent to place "making", for the purposes of criminal proceedings, within the authorisation process. I agree that that is a helpful approach, and Amendment No. 288 would achieve that. I hope that the package is acceptable to the Committee.

On Question, amendment agreed to.

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