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Lord Bach: My Lords, the noble Lord presses me, but I can go no further than to confirm that this important scoping activity is due to be completed by May 2008. I cannot say how much longer after that it will take to have a proper regulatory system. I shall take it away and if I can get more information, I shall write to the noble Lord and place a copy in the Library.

Lord Thomas of Gresford: My Lords, I am grateful to the Minister for his full response. I have no doubt that I shall discuss it with the noble Lord, Lord Lucas, and the Reverend Paul Nicolson to see where we take the matter. In the light of what the Minister said a moment ago, I reserve my position for Third Reading to see what progress may have been made on elucidating these points. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 63 [Possession of extreme pornographic images]:

Baroness Miller of Chilthorne Domer moved Amendment No. 86J:

The noble Baroness said: My Lords, with this amendment we move to Part 6 and the clause concerning extreme pornography. The Minister said that we had a series of Second Reading speeches in Committee. There was a good reason for that, as noble Lords felt that important principles were being explored and did not feel that the Government had got this part right. That is not to say that there is not an issue to be addressed—I accept that there is—but the Government have not yet got it right. This group of amendments attempts to get us nearer to getting it right.

There was clearly some support in Committee for what the Government are trying to do, but we on these Benches, and many other noble Lords on other Benches, parted company with the Government because we felt there were a number of problems which the Government still needed to address. First, the Government have veered far away from the definition in the Obscene Publications Act. One of our wishes is that this part should bring into line what the OPA does for producers of material with an internet age to address the fact that this material can be produced outside the UK.

The sort of definition we would be looking at would be one that has been tried and tested in the courts under the Obscene Publications Act and that does not confuse the question of whether the material is produced solely or principally for the purpose of sexual arousal with the question of whether it is obscene. As the noble Baroness, Lady Kennedy of The Shaws, reminded us in Committee, juries have great difficulty in dealing with what is likely to deprave and corrupt. Now they will have to contend not only with that question but also with whether the material is produced solely or principally for the purposes of sexual arousal. That has complicated the issue.

In his reply in Committee, the Minister helpfully said that the Government are seeking after consultation with the police and the CPS to make it illegal to possess material that would normally be liable to

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prosecution under the OPA. We agree that it is important that the OPA is taken as the starting point because there has subsequently been a vast amount of case law which has moved with the times as society’s definition of what is obscene has changed.

The Minister made it clear in his letter of 27 March that what we in the UK have regarded as obscene ever since 1959 is on the whole in advance of what most other countries have regarded as obscene. He sent us a useful round-up of how some of those other countries have legislated. As he says, the UK is a leader. He also says that it would not be the first time the UK has taken a lead in this area. For that reason in particular, it is very important, if these clauses are to be anywhere near to being up that task, that our amendments should be the very least to which the Government aspire. Our amendments reflect the fact that both in Committee and in his letter the Minister accepts that the OPA is good and satisfactory legislation.

9.30 pm

The decades of case law that have built up to a consensus on what is a very difficult subject reflect societal changes. We have therefore tabled Amendment No. 86L to clarify further that, in criminalising what an internet porn viewer is looking at, it should be the same sort of thing that it would be illegal to print under the OPA—neither more nor less.

Amendment No. 86K would ensure that the Bill criminalises a possessor of material in which something is taking place that is actually criminal and not merely distasteful, however distasteful that might be. Will the Minister say more about the penalties which this part of the Bill carries and which are now very severe? If someone viewed over the internet a third party having sexual intercourse with a sheep, would that carry a greater penalty than someone actually having sexual intercourse with a sheep? It is important to focus on the effects of what we are talking about here. Should watching something that is clearly illegal, that clearly gives rise to animal welfare issues and that has clearly been legislated for in animal welfare legislation be more criminal and carry greater penalties than the actual act itself?

In Amendment No. 86M, we have sought to give a far clearer definition of what a sexual offence is. Those offences are quite adequately defined in the Sexual Offences Act 2003, and surely the Government do not want to confuse an already fraught area by having two parallel interpretations of what a sexual offence is.

I will come back to some of the more fundamental issues when we debate whether these clauses should stand part of the Bill at all, but at this stage, those are the matters that I wish to talk about. Therefore, I beg to move.

Lord McIntosh of Haringey: My Lords, I added my name to these amendments and I am glad to support the noble Baroness, Lady Miller. I spent nearly 20 years on one Front Bench or another, and during that time I never quite had the guts to say what I really thought about these issues. I never quite had the

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guts to quote Kenneth Tynan, who in a review of eastern erotic art said, “All my life I have enjoyed having erections, and I have been grateful to the people and the works of art that made them possible”. Now I have said it, and no one can accuse any political party of having any involvement in that.

Before I went on to any Front Bench, I was involved in the proceedings on the Video Recordings Bill 1983, which became the Video Recordings Act 1984. Three of us—Douglas Houghton, Hugh Jenkins and I—fought against that Bill all by ourselves and to no real effect. The starting point was that what we do in our homes—the possession of books or images—is no business of the Government or the courts. What we have on our bookshelves is still not their business, but something has encouraged Governments of both persuasions to think that what we may have in terms of video recordings or pornographic images on the internet, or whatever they may be, is the concern of government.

Of course, if any of those images involves the commission of a crime in their production, an existing law deals with that, which none of us can contest. This is not an argument for child pornography, for bestiality, for snuff movies or anything like that. No one is defending that and there is a perfectly good law to deal with it. Having said that, what does it matter to the Government whether what we have in our homes for our own purposes is for sexual arousal or not? What is wrong with sexual arousal anyway? That is not a matter for Parliament or government to be concerned about. I am opposed in principle to interference in the private lives of adults as long as what they do does not cause harm to anyone else, or arises from or causes any offence under criminal law.

I have a further objection, which the noble Baroness, Lady Miller, has eloquently brought out. We have had the Obscene Publications Act 1959 for nearly 50 years. In Committee, my noble friend Lady Kennedy said that, yes, there are problems with interpretation, but the courts during that period have successfully dealt with those problems and the wording of the Obscene Publications Act. This part of Part 5 introduces new definitions of obscene or extreme pornography, which cloud the agreement that generally has been reached in this country about what is obscene and what should be allowed. That is extraordinarily unfortunate. It is damaging to the interpretation of the law; to the confidence of people that the law understands the variety of emotions and feelings that there are about sexual matters; and to the reputation of the law itself.

I have no hesitation in supporting the noble Baroness, Lady Miller, in these amendments. I hope that the Government will go a good deal further than they went in Committee in recognising the validity of her arguments.

Lord Henley: My Lords, the noble Lord, Lord McIntosh, quoted Kenneth Tynan. I do not know whether he saw the interview with Doris Lessing in one of yesterday’s newspapers when she talked about an evening she spent with Kenneth Tynan, which ended with some remarks she made about whips. The

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noble Lord and I have both been Whips, but Kenneth Tynan and Doris Lessing were talking about a different sort of whip. If the noble Lord can find the appropriate newspaper, he might find that interview amusing to read.

I should like to add to what the noble Lord said, because I am coming at this from a similar angle, even if I do not necessarily arrive at the same conclusion. In Committee, I quoted the famous remark of Mrs Patrick Campbell more than 100 years ago, which I shall now quote properly in full. She said:

I think that most, or all, of us would agree with that. Our only problem is the definition of what frightens horses and what goes slightly too far.

At this point, I have to say that I am very grateful to the Minister, with whom I have had some discussions. He offered me the chance to look at a number of these films and no doubt the noble Lord will tell us more about that in due course. In what was possibly a cowardly manner, I did not take him up on his offer, and so I have left it to him to look at the films. However, I have read the Bill, which defines an extreme pornographic image as an image that is,

There follows a definition of the word “pornographic” which the noble Lord, Lord McIntosh, described as being something that causes sexual arousal. However, the extreme image is defined in subsection (6) as,

and so it goes on. At this point it becomes slightly difficult. Having offered what I will call the Mrs Patrick Campbell definition of what we think is the right approach, I then said that I do not know what we define as that which frightens the horses.

I think that we want to hear more from the Government, and particularly about what the Minister and the Government consider to be extreme images, before we make a decision. As I understand it, the noble Baroness, Lady Miller, has put forward two options. The first option set out in the first group of amendments seeks to amend the Bill, and if that does not work, the second group would strike the whole lot out. As we implied in Committee, we want to hear more from the Government before we come to a view. I do not know whether it is appropriate, but the noble Baroness might want to come back at Third Reading, particularly as the noble Lord has now taken a look at some of the extreme pornographic things that he invited me to see. At that stage, and after hearing what the Minister has to say, the noble Baroness may want to consider these matters again.

The Earl of Onslow: My Lords, are we not facing the terrible problem of definition? Where you have a definition that says that an extreme pornographic image is an image which is,

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that is like saying a dog is a dog or a horse is a horse; it gets you absolutely nowhere.

There is a wonderful museum in Paris, the Musée d’Orsay, which is full of the most beautiful pictures. One of them was commissioned by the Turkish ambassador in around 1860. It is a close-up painting of a lady’s genitalia, and I believe it is called the Mother of the World—

Lord Faulkner of Worcester: “L’Origine du Monde”.

The Earl of Onslow: I thank the noble Lord. My bet is that the Turkish ambassador commissioned that painting for sexual arousal, and yet there it is, displayed in the Musée d’Orsay. Some Greek vases have pictures of Priapus on them. If Priapus was to do the things he is threatening to do, it is fairly likely, because of the size of what he has got, that they would result in serious injury to a person’s bits and pieces.

We are here in the problem of definition. The noble Lord, Lord McIntosh of Haringey, has said that surely it should be left in people’s bedrooms or on the television sets in their bedrooms. Actually, I do not see why someone cannot have a picture of a person having oral sex with a dead animal. It is the most extraordinary thing anyone would want to do, but I cannot see why that should be made criminal. It does not harm the animal because it is dead. The person concerned ought to be carted off in a collar and chain and put in the loony bin, but it does not do anybody any harm. Surely the whole point is that what we are trying to get at is undefinable. You probably know it when you see it, but you cannot define it, and statutes must be defined.

I have a final little story for your Lordships. Years ago I was asked by the noble Lord, Lord Alli, to introduce a programme on pop music. The programme was in six sections, and one of them was on porn rock. I refused to be in any way nice about it. I said that this has been going on for an awfully long time and I quoted Juvenal’s ninth satire, which states,

I would not have dared to quote that had Lord Hailsham still been on the Woolsack. He would have got very angry because it is incredibly obscene, but it is one of Juvenal’s ninth satires. All I am trying to say is how difficult these definitions are and how impossibly difficult it is to legislate for. I hope that we take out both these clauses.

9.45 pm

Lord Wallace of Tankerness: My Lords, I support the amendment moved by my noble friend Lady Miller. It was supported very robustly and eloquently by the noble Lord, Lord McIntosh of Haringey. There has been concern generally about the existence of these clauses in the Bill. As the noble Earl, Lord Onslow, indicated, there is the problem of definition. It is very unsatisfactory indeed if people are potentially going to be made criminals because they possess certain material. If we are having difficulty over the definition, Heaven help those who might

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suddenly find themselves at the wrong end of the criminal law because of a lack of understanding as to what the definition is.

It is with these concerns that we have tabled the amendments in the group. If there is going to be a crime established we want to try to get some definition into it. The amendment would make a requirement that the act being recorded, and which is then the subject of the pornographic image, should be one in which one or more of the persons engaged in that act are committing a sexual offence. “Sexual offence” is defined for the purposes of this clause to include offences which could be committed furth of the United Kingdom. One of the concerns mentioned in Committee was that many of these images are imported from outside the United Kingdom.

Clearly, if no sexual offence is being committed, it seems very odd indeed that there should be an offence for having an image of something which was not an offence. I can see nothing within the Bill that would stop a person having a picture of himself or herself engaged in that particular activity, which they would know was entirely consensual. Having engaged in it consensually would not be a crime, but to have a photograph of it in one’s possession would be a crime. That does not seem to me to make sense.

Amendment No. 86L, spoken to by my noble friend Lady Miller, which indicates that the definition should be imported from the Obscene Publications Act, again has considerable good sense attached to it. After all, in Committee, the Minister tried to indicate that it was important that the parallel was made with the Obscene Publications Act. Things were said about the difficulties and the challenges we face today because of the internet and because of electronic communication of images, difficulties which were not faced back in 1959. Notwithstanding that, I cannot see any reason for departing from the definition which, as the noble Lord, Lord McIntosh, said, has stood the test of time of some 50 years, and why we would suddenly have a different set of definitions simply because something might be downloaded from the internet.

Amendment No. 86PA seeks to bring in a defence. The defences in the Bill are very limited indeed. The amendment seeks to create an additional defence whereby a person believes that those involved in the material possessed actually consented to the participation. There may be difficulties in proving that in cases of mass produced pornographic images, but it certainly could be a very useful defence in cases of images of consenting couples or groups which have been made for their own use. It is not open-ended. There is a requirement that the belief must be reasonable. In all these circumstances, the restrictions and the greater definition which the amendments in this group bring forward help to improve the measure. As has been indicated, there is considerable underlying unease about the purpose of the clauses as a whole. I certainly commend the amendments as improving clauses which at the moment do not command sufficient confidence to enable them to become part of our criminal law.

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Lord Faulkner of Worcester: My Lords, I, too, expressed reservations about these clauses in Committee and took very much the same line as the noble Baroness, Lady Miller, did on that occasion. I looked carefully at the amendments that my noble friend brought forward and I said in Committee that I thought that they represented an improvement on what was there before.

I think that I am the only Member of your Lordships’ House who took up the invitation of my noble friend to visit Charing Cross police station to view some of what one might call the exhibits that underlie the Government’s thinking on this matter. A variety of adjectives comes to mind, such as “bizarre”, “unpleasant”, “distasteful”, even “repulsive”, but the images were not in any sense sexually arousing. At the end of the visit, I was left with the question whether their possession is so threatening to society that it is worth turning people into criminals and sending them to jail if they happen to have them on a computer screen at home or have obtained them some other way.

I suspect that, like me, many noble Lords have had a fair number of submissions on this subject from a variety of organisations. Some of them are very articulate and well argued. The main point that comes through was expressed by an organisation called backlash, which said:

It went on to say:

The point is also made by a number of these organisations that most of the scenes to which my noble friend introduced me at Charing Cross are not real scenes but are faked for the benefit of their creation or are the product of an entirely consensual activity, as the noble Lord, Lord Wallace, pointed out. I am at one with my noble friend Lord McIntosh and, I suspect, with the Minister in wanting to prosecute illegal activity that has taken place in order to create these images. However, if no illegal activity has taken place and we are concerned about merely the possession of the images, I really cannot imagine that any useful purpose is served by creating criminals out of the people who possess them.

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