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Obscenity Bill [H.L.]

6.25 p.m.

The Earl of Halsbury: My Lords, I beg to move that the Bill be now read a second time. I do so somewhat nostalgically as I feel that this may be my swan song. Aged 91, I cannot believe that I shall be included among the 91 hereditary Peers on whom the axe will not fall in October, or whenever.

I begin by explaining how I became involved in this unsavoury subject. In about 1994, the noble Baroness, Lady Cox, finding herself overcommitted in the field of good works, asked me to take over a commitment that she had made which she found herself unable to fulfil. It was to chair a committee of inquiry into pornography, violence and the media. Being a member of the family child protection group whose chairman was the noble Baroness, Lady Knight, (then Dame Jill Knight), I felt that I could not take this matter on without her agreement. However, she decided to absorb that activity into the activities of her committee. So that was done. The noble Baroness was succeeded by the noble Lord, Lord Ashbourne, whom I am glad to see in his place. In due course we published the report.

It is no good publishing a report and leaving it at that. I felt that I was under some obligation to incorporate the recommendations of the report into a Bill which received its Second Reading in your Lordships' House in December 1996. It was overtaken in subsequent months by the impending general election which brought all business between the two Houses more or less to a standstill. During 1997-98, I was to some extent left on a free rein because I promised the incoming Government that I would not embarrass them with a controversial Bill during their first year of office; but that unless a measure was in the Queen's Speech preceding their second year of office I would resume my freedom of movement.

Accordingly, I embarked on a piece of research which had been on my mind for quite some time. Your Lordships may remember that a number of years ago an exhibition was put on by the police, I think in the Grand Committee Room, to instruct your Lordships and another place on the real bestialities which go on in the world of commercial pornography. In the course of discussions with a senior member of the vice squad-- I cannot remember whether that expression applies to this country or America--I asked why he did not attempt an ostensive definition of pornography. The word ostensive is a linguistic expression derived from the Latin ostentare, to show. One teaches children the meaning of nouns by showing them what they stand for. One says "dog" and points to a dog; and one says "daffodil" and points to a daffodil. That is how children learn their basic vocabulary. So I asked, "Why don't

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you make an ostensive list of all pornographic items which will appear in legislation?". He shook his head at me and said, "You would never come to the end of it. It simply could not be done".

Being at a standstill in 1997 and 1998, I decided to find out whether it could be done. I made friends with the secretary and the librarian at the Royal College of Psychiatry, which has a prestige address in Belgrave Square. On my way to the House for Questions each day, I called in at the Royal College and did some homework in the library. Shelves full of books went through my hands. I turned to the indices and read them through until I came across a familiar term. I then turned to the text to see what it was. If it was what I wanted, I wrote it down. That is the origin of the schedule to the Bill. I commend it to your Lordships as at least a piece of research which will be useful on a future occasion, even if your Lordships do not like the shape of the Bill.

I included in the Bill a preamble which, on the advice of friends, the Public Bill Office and the parliamentary draftsmen who advised, I have instead included in the text of the Bill. It may sound obscure, but I wrote as a preamble:

    "Whereas the young or the innocent at any age may by chance or through curiosity or seduction be led to peruse matter listed in the schedule to this Act, habitual recourse to which for the purpose of enjoyment may lead to corruption and depravity and their harmful consequences ... Be it enacted",
and so forth. The essence of that appears in the middle of the Bill. If one ties the legislation only to corruption and depravity, defence counsel will turn to the jury and say, "You have read it. Do you feel corrupted and depraved?". Of course, no one feels corrupted and depraved by reading something for the first time. It is corrupting and depraving when one has habitual recourse to it for the purpose of enjoyment.

I used two terms; "the young" and "the innocent at any age". By "the innocent at any age" I had in mind, for instance, a young priest or a novice nun who might be of full legal age but has never seen the evil side of life and might come across it by accident; left behind in, say, the dentist's waiting room.

Having defined the Act, I had to make a list of activities, which appears in the Bill, engaged in circulating the obscenities. It can be imported; it can be manufactured in this country; it can be reproduced by some photographic process after it has been manufactured; and so forth. It is another list.

In the context of those lists, I came across a legal doctrine which needs a little understanding because it is in Latin. It is, citatio unius exclusio alterius, which means that in mentioning one thing one excludes the other. It applies particularly to the relationship between species and the members which constitute that species. If you want to make a selection of members, you just recite that phrase. If you want to have the whole species, you just recite that phrase. If you try to mix the two and include the species and some of its members, you exclude all the others. I did not invent the doctrine; it is a legal doctrine about which I needed a great deal of help. By the time my advisers had finished with the Bill it was in a different state.

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I have referred to this occasion as my swan song and I am reminded of a little jingle I heard when I was young:

    "The swan, the poets say, before it dies doth sing, T'would be a better thing If some performers die before they sing".
I hope that my exposition will not make your Lordships believe that the Bill were better dead! I beg to move.

Moved, That the Bill be now read a second time.--(The Earl of Halsbury.)

6.35 p.m.

Viscount Brentford: My Lords, I congratulate the noble Earl on his tenacity in returning to this subject once again and bringing it before your Lordships. He has been working on it for many years. I congratulate him also on his research enabling him to list in the Bill some 40 nouns and phrases. I further congratulate him on his opening speech and hope that the swan will continue to sing on many occasions, at least during the coming year.

The noble Earl said that, for him, the subject went back to 1994. I can claim that, for me, the subject goes back to the 1950s when my father, as a Member of another place, was a member of a committee which led to the Obscene Publications Act 1959. I have memories of travelling in our car to London with my parents. My father read some documents out aloud and my mother became highly emotive as we drove along the road, such was the language that was being read. Therefore, I have a remote interest to declare.

That legislation produced as a test "that which is likely to deprave and corrupt". The jury would be asked whether they felt depraved and corrupted by the material and counsel could wheel in sex therapists and sexologists to prove to them that the pornography could be helpful to impotent people and assist them in their sexual exploits. They would argue that it certainly did not deprave and corrupt.

Today, we must ask ourselves what values we wish to see permeated through the media and publications generally. Last night I watched a few minutes of a programme on sex education. It showed some teenage children who had indulged in sexual activity. Their parents were horrified by the fact that their son or daughter had met the person of the opposite sex only half an hour or so before engaging in sexual activity. Are our teenagers learning such values and, if so, from where? A television series about homosexuals tells a story of an adult male indulging in sexual activity with a 15 year-old (under-age) boy. I believe that that promulgates two values: first, that it is all right and positive to break the law; and, secondly, that sexual activity without a relationship is also positive and good.

What are the values that we wish to inculcate? Is pornography in any way contributing to our values? I believe that it is. It is a serious problem. Therefore, I welcome attempts to look again at this subject to see whether or not we can bring about some restrictions

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which will enable publications to produce positive values and not what I believe are extremely negative ones.

We have the highest rate of teenage pregnancy in the world. Is that a fact of which Parliament can be proud? We should be tackling this subject again. Your Lordships' House is perhaps the best place to begin that work. Whether this skilful Bill is the best way in which to carry forward that work is a question open to mind. I can see great advantages in it because if any charges are brought under it, it will be necessary to determine questions of fact rather than of opinion.

In the past few years there has been mooted an alternative phrase--that which is offensive to a reasonable person. Should a phrase along those lines be the basis in law rather than having an all-embracing schedule of activities? I was under the impression that the Home Office felt quite warmly towards that phrase as an alternative method of trying to tackle the subject again. I shall be interested to know whether the Minister has any views on that. An ideal way to tackle the subject of obscenity today would be for the Government to include a new definition, one way or the other, in law.

The phrase "that which is offensive to a reasonable person" leaves the issue clearly before the jury as to what would be offensive to them. It takes away the role of the expert sexologists who say that no pornography depraves or corrupts. It is purely left to the jury to decide. I prefer that.

However, it is important to tackle the subject of obscenity one way or another to try to restrict it so that it is possible to stop the ever-increasing wave of obscenity which is hitting us from every direction. If our civilisation is to survive, we need to tackle the subject and curtail it so that we do not become one of the most depraved and corrupt nations in the world, which is the direction in which we are moving.

Therefore, I support the principle of the Bill. I look forward to hearing whether any noble Lord has other ideas as to the best way to tackle the subject. I warmly welcome the fact that the noble Earl has drawn attention to it.

6.43 p.m.

Lord Annan: My Lords, I must congratulate the noble Earl on the charm with which he introduced the Bill. Anyone in his 90s, like the noble Earl, or even someone in his 80s, such as myself, has seen an enormous change in the nation's response to sexual morality. Things which were unmentionable in public, and just as unmentionable in the bosom of the family, are now bandied about in the media.

At the moment, it seems that we are a nation obsessed by sex. How did that come about? It is the result of 150 years or more of sexual repression. Towards the end of the 18th century, the influence of evangelical religion began to change public opinion. Restoration comedy, which was itself a reaction against Oliver Cromwell's diktats of closing the theatres, gave way to Sheridan's polite comedies; Fanny Hill gave way to Fanny Burney's novels. And then came the good Queen Victoria, who was repelled by the example of

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her loose-living uncles and presided over an age of sexual repression. We all know of Thackeray's complaint that in his novels it was impossible any longer to depict a man. We all remembered Dickens's great characters--Mr. Podsnap and Mr. Pecksniff.

Things relaxed a little in the 1920s, but right up to the Second World War the details of sexual behaviour were still taboo. Even then, books were prosecuted, films censored to a degree unbelievable today and the visual arts were policed for obscenity.

Then came the Wolfenden Report and the passage of the Obscene Publications Act 1959. The dam burst. Prosecutions of novels like Lady Chatterley's Lover were thrown out by juries and the new game was to outdo one's rivals in shocking the public. After nearly two centuries of repression, is it any wonder that there has been such a violent reaction? Is it any wonder that all sorts of people revel in the fact that now they can see or read about things for so long forbidden?

I turn to the Bill. I was delighted by the noble Earl's account of the research that he had done, but I wondered whether he had read the report of the committee on obscenity and film censorship of 1979, Cmd No. 772. I ask because the Williams Report recognised, just like the noble Earl, that the present law is in a mess. Obscenity is not covered solely by the 1959 Act. A dozen or more Acts are involved--some prior to and some post 1959. In eight appendices, the workings of the present law were put under the microscope and the laws of other countries were examined. The report itself ran to 166 pages.

That committee considered that the terms "obscene", "indecent" and "depraved and corrupt" had outlived their usefulness in legislation. The law should be drafted on the basis of harm caused by the existence of the material in question. The public has a legitimate right and interest in not being offended, but harm alone can justify prohibition.

That means that only a small class of material should be forbidden to those who want it because it is not likely to cause harm. Moreover, the printed word should neither be restricted nor prohibited. It is not immediately offensive.

More important, the report argued that it would be an error to treat all the media uniformly. At paragraph 12.7 it stated:

    "No one can dispute that reading a magazine, watching a live show and watching a film are three very different experiences".
That was why, for example, the committee wanted a special board of film censorship to be set up.

The items to be banned were similar to those which the noble Earl cites in the schedule to his Bill; namely, sexual, faecal or urinary functions and genital organs and, in addition, scenes of violence, cruelty and horror. The restrictions should apply to matter or to a performance which is easily available. It shall no longer be a defence to say that an item had an intrinsic merit. As I read new Section 2A(4)(a) in the Bill, it still permits that kind of defence.

The Williams Committee went on to reiterate that the principal object of the law should be to prevent material

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causing offence to reasonable people. Only a small class of material should be forbidden to those who want it. To carry prohibition further would be to go against the principle that an assessment must be made of the likely harm to people of an article that some may well dislike.

I hasten to reassure the House that I do not intend to summarise further the arguments and recommendations of the Williams Report. I merely wish to emphasise that to change the law relating to obscenity is a very complicated matter. The noble Earl's method of changing the law seems to be like detonating a landmine and blowing up everything. The Williams Committee preferred to identify targets and pick off those offending practices with a rifle.

I shall take one example from the Bill. New Section 2A cites certain exceptions to the kind of events that the Bill would criminalise. Among those is one provision that states that no offence would be committed if the article is published or publicly exhibited,

    "in the interests of art, literature or science".
These days the defence could argue that everything that the noble Earl deplores could be slotted under one of those three headings. Who has not seen pornography purporting to be a part of a sociological scientific study of certain practices? It is not only Lady Chatterley's Lover that would survive the accusation of praising anal intercourse. We have seen that juries will not convict simply because a book describes the kind of practices that the noble Earl cites in the schedule.

Finally, I cannot find in the Bill whether it would be illegal to simulate some of the acts in the schedule. We do not see coitus practised in films shown at the cinema, but we see it simulated all too often. If simulation is to be an offence, I believe that the noble Earl will achieve something far greater than Oliver Cromwell achieved, in that all cinemas would be closed and a good deal of television banned.

Of course, I do not intend to vote against the Second Reading of the Bill, nor will I oppose it in Committee or on Report unless the Government decide to endorse the Bill in another place. I await the Government's view with considerable interest.

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