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Standing Committee B
Thursday 18 September 2003
(Morning)
[Mr. Win Griffiths in the Chair]
Clause 47
Indecent photographs of persons aged 16 or 17
9.10 pm
Sandra Gidley (Romsey): I beg to move amendment No. 231, in
clause 47, page 24, line 7, leave out subsection (3).
The Chairman: With this it will be convenient to discuss the following:
Government amendment No. 91.
Amendment No. 232, in
clause 47, page 24, line 22, leave out subsection (4).
Sandra Gidley: The amendment was tabled because of concern about the exception when a child aged 16 or over consents to the activity in question. Clearly, the Government share that concern, and their amendment reassures me greatly.
The age of consent for sexual activity is 16, but we are discussing a little more than sexual activity in situations in which a photograph could be taken. Although the clause states that photographs should not be widely distributed, such matters would be difficult to police. As soon as a picture has been put on the internet, a 16 or 17-year-old might bitterly regret the decision to consent. I would not like to have some of the decisions that I made at that age to be with me for the rest of my life—[Laughter.] Nothing very interesting, I assure the Committee.
Subsections (3) and (4) refer to
''a child aged 16 or over''.
The intention behind the Bill is to protect children, but subsections (3) and (4) ensure that it fails to protect all children. I very much welcome the Government amendment, even though it contains a marriage exception and I would prefer such provisions to be left out of the Bill. The amendment does not relate only to a marriage in the traditional sense, but to an ''enduring family relationship''. That is a welcome step forward and the phrase should be used in a couple of other clauses that refer to marriage exceptions. Perhaps the Government will examine those clauses to see if their wording could be made more relevant to Britain today—a matter that was raised by my hon. Friend the Member for Mid-Dorset and North Poole (Mrs. Brooke).
The exceptions in the proposed new section 1A to the Protection of Children Act 1978 will leave the police in their current position when faced with a case of rape. They would have to argue and prove—or disprove—consent. Even if they are married, 16 or 17-year-olds should not be put in that position.
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Mr. Dominic Grieve (Beaconsfield): I have great sympathy with the amendment tabled by the hon. Member for Romsey (Sandra Gidley). When I read Government amendment No. 91, which as she rightly said goes a long way towards meeting our concerns and is therefore to be welcomed, it struck me that we are complicating matters. Perhaps it is worth going back to first principles.
We accept the principle that the age of consent is 16, and that people can marry at that age. At the same time, we accept that 18 is the right cut-off point in laws pertaining to the family or to the protection of minors. I therefore do not find anything philosophically wrong in providing restrictions on what is permissible with a child under 18, even though I may be perfectly content and comfortable with the idea that 16 is the age of consent. Those two things are very different. It is possible to be married to somebody without feeling that it is right to take indecent photographs of him or her.
During our previous discussion of the marriage exception, I have tended towards the view of the hon. Lady—although I would not press the matter to a Division. Why are we providing an exception at all? If we think that it is right to protect those under 18 from having indecent photographs taken of them, and from the consequences that flow from that—for example, pictures might be put on the internet and never removed—why are we getting so anxious about providing exceptions? I will be interested to hear the Minister's response.
I understand the concept of privacy of marriage, and that a 17 year old who is lawfully married might want to have indecent photographs taken. On the whole, I think that taking indecent photographs of people is undesirable; presumably the Minister does too, or we would not have clause 47. If we agree that it is an undesirable activity, but we accept that adults over the age of 18 must be allowed to do it if they want to, why are we so concerned about allowing an exception for that two-year period?
Subject to that, Government amendment |No. 91, which we will hear about in more detail later, is perfectly sensible. It tries to weave its way through the problem. The thing that worries me about the amendment is the phrase, ''enduring family relationship''. How long is a piece of string? Is a relationship enduring after a girl has been with her boyfriend or lived with him for two weeks, or six months, or nine months? Once again, we will have to ask the courts to disentangle that issue. Although I fully understand the intention behind the phrase, it worries me that we will end up with problems in deciding what an enduring family relationship is. I wait to hear from the Minister. I hope that we have a dialogue on the issue.
Welcome as the Government amendment is, I wonder, like the hon. Member for Romsey, whether we are making our lives excessively complicated. Why do we not just say, ''No indecent photographs of children under 18, irrespective of the circumstances''? It does not seem to me that the infringement of privacy and the rights of the individual would be so great that that would be improper.
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The Minister for Citizenship and Immigration (Beverley Hughes): I could answer that last question very simply: the hon. Gentleman may think that we are making heavy weather of the clause and making things excessively complicated, but that is because life itself is complicated. We are trying to weave a way through—a phrase that he used—the competing imperatives with which we are grappling. We are trying to find satisfactory protection from exploitation for people under 18, while acknowledging that over-16s can consent to sexual activity and can marry. We want to accommodate the competing imperatives of protecting the privacy of a marital or enduring relationship and of ensuring the maximum protection for children and young people.
Amendments Nos. 231 and 232 would remove completely the exceptions provided in subsections (3) and (4), which permit the taking, making and possession of an indecent photograph of a child over 16 with the consent of that child; they also include its distribution to the child. The amendments do not replace those exceptions. The hon. Member for Romsey believes that no exceptions are appropriate—she has made that clear. We believe that some limited exceptions are appropriate, but we accept that the current drafting of the clause is flawed, which is why we have tabled Government amendment No. 91.
Clause 47 raises the bar on indecent photographs and pseudo-photographs of children—by inserting new provisions into the Protection of Children Act 1978 and the Criminal Justice Act 1988—to include those depicting children aged 16 and 17. That is in line with our international obligations to ensure that there is protection for children up to 18 from exploitation through pornography. We think that it is right to exclude from the offences those persons who are living in an enduring family relationship with or who are married to the child of that age who is depicted in the photograph.
The wording of the clause as it is drafted does not achieve that objective. It has become clear—after debate and consideration—that it might allow a person who is not in such a relationship to take or possess an indecent photograph of a child, albeit with the child's consent. It is also defective in that it does not protect a person who possesses an indecent photograph of his 16 or 17-year-old partner, unless he took that photograph. That is why we tabled Government amendment No. 91, which makes the establishment of the relationship the core—the central feature—of the exception.
I shall get to the point raised by the hon. Member for Beaconsfield (Mr. Grieve) in a moment. I am confident that the amendment will allow persons in a marriage or other enduring relationship to take, make, possess, or show to each other indecent photographs of one another, if they wish to, without fear of prosecution. I have checked with officials to ensure that that does not allow a loophole for anybody else to be involved in any other way. The exception will cover a person who can prove that he was living as a partner in an enduring family relationship with or married to the child aged 16 or over in the photograph. In no case
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may any person other than the child or the partner be in the photograph, nor may it be distributed to any person outside that relationship—and no other person may involved in the taking or making of the photograph.
Mr. Grieve: Does that mean that somebody who had an enduring family relationship with a 16-year-old that lasted a year before breaking up and who took pornographic photographs of her during that time could keep those photographs for the rest of his life, as long as he kept them in his wallet?
Beverley Hughes: It will mean that. However, if he shows those photographs to anybody else, or distributes them in any way, he will be committing an offence. The caveat to that is the consent of the child.
Mr. John Randall (Uxbridge): Perhaps I should know this, but when the Minister says that no one else can be involved, does that mean that sending the photographs to the chemist or developers counts as other people seeing them? Should I know the answer to that legal point?
Beverley Hughes: I should know the answer. We are not changing the position under current legislation whereby such persons would not be liable. I understand that such persons would not be liable for developing the photographs. If there was a criminal offence, it would pertain to the people involved in the activity.
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