Previous Section Back to Table of Contents Lords Hansard Home Page

In Clause 114, Amendments Nos. 131A and 131B apply the slight change to the definition of pornography introduced in Clause 113 to the context of extracted images in Clause 114. The effect is that whether or not an image is an “extracted image,” and thus should not benefit from the exclusion for films classified by the British Board of Film Classification, turns on whether the extract is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal. As with the definition of pornography in Clause 113,

3 Mar 2008 : Column 896

this is intended to be an objective question for the magistrate or jury, not a question of the intentions of the person who did the extracting.

I hope noble Lords will accept these amendments, which I believe go a long way to address the concerns that have been raised. I beg to move.

Baroness Miller of Chilthorne Domer: I have some 11 amendments grouped with this government amendment. I am grateful to the Minister for explaining the Government’s purpose and for his letter of 29 February which further expanded how the Government seek better to define their intention in this clause. Our difficulty with the clause is that this material is seen on the internet by someone in the privacy of their own home and is produced abroad so it cannot be caught by the Obscene Publications Act, as the Minister said. Therefore, the first person to judge whether the material falls within the scope of this Bill is the person viewing it. That is a very difficult position for the Government to put an individual in.

While I find myself in a difficult position defending people who want to watch violent pornography as I find that very distasteful, nevertheless I believe that, in taking a step in this direction, the Government are effectively becoming the “thought police”. Has somebody a bad thought behind what they are doing? The Minister referred to the context in which the material is viewed. If I watch a violently sexual scene while chopping onions to make chilli con carne, is that context all right? Does that make it a bit less titillating as I am crying due to the onions and so am unable to concentrate on the film? Would that be viewed in a different light from somebody watching this sort of material in the privacy of their own bedroom? What exactly does the Minister mean by context?

The Joint Committee on Human Rights put it very clearly. It said:

The Government have brought forward helpful amendments which meet the arguments about “appears to” and result in a much better definition. However, I do not see that any of the amendments they have brought forward so far deals with the point made by the Joint Committee on Human Rights.

I have a series of questions for the Minister. He referred to the need for this measure given increased internet usage, but how much study have the Government undertaken of the problem of such viewed violence leading to crime to justify their concluding that this is the right legislative step to take? Is the problem due to internet viewing or is the increased amount of sex and violence in late night television films more of an issue? The Minister referred to the rapid evidence assessment. My understanding is that that assessment was made overseas. I would like to know how much of the UK context is relevant to what we have before us today.

4.45 pm

Then there is question of where this law allows for a multiplicity of statuses for the same material. For instance, a particular act may be deemed illegal to

3 Mar 2008 : Column 897

own as a depiction, but if it is passed by the British Board of Film Classification and the need for protection of public morals suddenly disappears, the material is deemed legal. If someone then extracts an image or a short film passed by the British Board of Film Classification, and they just extract one episode, for example, of a violent rape, and play it over and over again, does that fall within the Bill? We ought to have evidence on that sort of use of material. Is it as harmful as something that was made on the internet without being passed by any board of film censors?

There are a great number of issues with the clause. There is the human rights issue of how private people can expect to be. I am sure like other noble Lords, I have had a vast number of letters on this subject, some from self-confessed users of pornography who are very frank about it. I have to believe them when there is no evidence to the contrary—which there certainly is not—that they view this sort of thing and never have any reason to think that they would in any way start to commit violent acts against other members of the public. We may not like it, but it is something that they do in the privacy of their own home. What entitles us as a legislature to pass something that is an invasion into their thoughts?

What really worries me about it is that we are asking these people to judge whether what they are seeing is going to fall within the remit of the Bill, before it ever gets to a jury. If they think that it does not, because they perhaps do not find it particularly exciting, and then for some reason their use is discovered, the police arrive and they are subsequently prosecuted, that will not sound like much of a defence. Is there something else that the Government can do to improve this clause? I suggest that this clause has been fairly rapidly arrived at, and it might be better to have something that is somewhat more substantial and over which more time has been taken. Perhaps a Joint Committee of both Houses could take evidence and look at the issue of violence and connection to crime, looking at substantial evidence from the UK, to see whether we can arrive at something that is somewhat more satisfactory.

Lord Faulkner of Worcester: Like the noble Baroness, I, too, have received a large number of letters and e-mails on this clause, some of which are frankly quite disturbing, some of which are quite amusing and some of which are very serious. My favourite came from someone whose e-mail address included “affordable-leather”, which I thought was a reference to sofas and armchairs, but when I went to the website it turned out to be something very different indeed.

The most important point that has been made to me in those representations has come from Liberty, which summed up its argument as follows:

I think that the Minister is conscious of that point, and the amendments that he has come forward with make this clause a great deal better than it was at the beginning of our debate.

3 Mar 2008 : Column 898

Like the noble Baroness, I am concerned that we are intruding into people’s privacy and that we are potentially making illegal activities that I suspect no one in this House would find interesting or in any way stimulating but which, for some people, represent an important part of their lives. For example, I have had an e-mail from Dr Tuppy Owens of the Outsiders Trust, who works with disabled people. He says:

I hope that, when my noble friend comes to reply to the debate, he will answer that point.

Perhaps he could also answer one other point that has been put to me. As a new offence is being created, what will be the position of people who have already downloaded material on to their computers which up until now has not been illegal but henceforth will be? Will the possession of that material be regarded as a criminal offence and, if so, what advice does he have for people to get rid of it?

Baroness Falkner of Margravine: I, too, wish to speak to this group of amendments and, in doing so, I should like to make a couple of general points. The first concerns the attempt to regulate material which is becoming increasingly difficult to regulate because, as the Minister told us, most of it originates abroad. I did quite a lot of work on another area of extremism and the analogy comes to mind of similar issues concerning material of another nature which the Government also describe as extremist—that relating to terrorism, which is also mainly produced abroad.

When we debated “glorification of terrorism” and all such phrases, I cautioned about introducing legislation which is too broadly drafted and very wide in scope and which encompasses, as my noble friend Lady Miller said, some element of thought crime. I do so here for many of the same reasons. We know from the case of the young woman who wrote a poem that the courts do not like convictions concerning thought crime, and I suggest that, if this provision becomes law, it will encounter similar problems further down the road when it comes to regulating very ambiguous and broadly defined and drafted clauses.

Moving specifically to some of the terms, I welcome the removal of the ambiguity created by the words “appears” and “appears to” throughout this clause. However, I believe that, although there has been a genuine effort to remove the subjective element of these terms, the Government are still muddled as to how to approach the problem of the dissemination of extreme pornography, which is why they have introduced the new and, as I see it, much more subjective standard in Amendment No. 125B. That would insert a new subsection stating that an “extreme image” is one which is,

3 Mar 2008 : Column 899

The problem here lies in defining what is offensive and disgusting, which is naturally subjective. It is dangerous to attempt to comment in criminal law on where the boundaries of taste lie. As I understand it, pornography covers a wide range of acts of different levels of what might be described as extreme acts of a sexual nature. For legislation to attempt to draw subjective parameters is, at worst, unworkable and may criminalise people who would not otherwise have seen those acts as disgusting, particularly if they had filmed themselves committing the acts as consenting adults and were viewing them themselves. I suggest that in those conditions they would probably not find them offensive or disgusting.

Moreover, the definition of pornography will be left to the jury. The Minister is aware, as are many other Members of the Committee, that there is a debate in the country about values, about diversity and about religion and religious faith. The debate on diversity and the erosion of social cohesion is important, and one that the Government recognise as important—hence, the plethora of speeches by the Prime Minister and by other Ministers and initiatives concerned with integration, religion and extremism of the other kind. While they recognise that the values in Britain are changing due to diversity, and that religious belief is becoming a more potent source of conflict, the Government are seeking to bring in legislation which is highly subjective and then they are leaving the test to be decided by juries, who could deliver very different outcomes in cases with similar content depending on the part of the country where they take place. The onus on the jury to define pornography will place good people in an invidious position on matters that are so sensitive that, if the law has to enter here at all, it should be law that is capable of being clearly understood and demarcated. These clauses will not achieve that purpose.

The Lord Bishop of Chester: I want to offer some general support to the Government for what they are attempting to do with these clauses. To bring pressure to bear in our society on the extraordinary explosion of what we might generally call pornographic images seems to me to be laudable and right. I share the view of those who have already spoken in this debate that to address the issues as set out here seems to beg as many questions they answer. This relates to the whole Bill and it seems to me that whenever there is a criminal justice Bill before Parliament all manner of things get added in, things which need rather careful discussion and joined-up thinking on how they relate one to another.

I notice that the Government have withdrawn certain proposals about prostitution, which is right. That whole area requires profound consideration about what should and should not be legal in our society. Personally, I would welcome the thought that for a man to solicit sex from a woman or to pay for it ought, prima facie, to be a criminal offence. However, it is surrounded by so many questions that only through the most detailed and careful consideration can good law be made.

I happen to think the same about blasphemy, to which we shall come, I believe, on Wednesday. I support what is being proposed, but I think it

3 Mar 2008 : Column 900

interrelates with other issues in our society and it is not really suitable to be put in. I would welcome a thorough look at the whole issue of what pornography is and its impact on our society. Clause 113(3), as amended by Amendment No. 122B, would state:

You can see that when you go into many newsagents in our society and look not just at the top shelf but at almost any shelf these days. Many of the soft porn films seem to have been produced precisely for that purpose.

The last thing we want to do is to produce an aura where everyone is a potential criminal. In one sense, we are and we need to acknowledge that, but that produces very negative reactions in the population. One can instance all sorts of ways in which that is the case. This whole area needs very careful examination not least in terms of whether there is any link between what is published and broadcast and crime. There are definitely imitative patterns of behaviour. There are the awful tragedies of the suicides in south Wales at the moment which is an illustration of how images can be created, as it were, and behaviour follows those images and is repeated. Sexual arousal is simply part and parcel of the whole of the creative world. When one looks at David Attenborough's series “Life on Earth”, one sees that much of the depiction of the way in which the creative world operates is tied in with the reality of sexual arousal—let us be honest about it. If we are going to produce laws in this sort of area, they must carefully define what they are attempting to criminalise.

5 pm

The clauses also seem to move between issues of violence and issues of pornography and sexual arousal. I know that they can often be linked, but I tend to think that they are often rather different. I think, from my own perspective, of the Christian faith, which has a violent image right at its heart: that of somebody being nailed to a cross. There are ways in which you could find portrayals of central features of the Christian faith covered by these clauses. Some people find them offensive; indeed, in one sense they are. There is such a deep subjectivity here that these things need careful consideration.

While I applaud the Government’s attempt to get to grips with this issue, I share a feeling that things are not right. My brief experience in your Lordships’ House tells me that this number of amendments linked together usually means that the legislation is in difficulty.

Lord Henley: I intervene early and apologise for trying to pre-empt the right reverend Prelate. He made some valuable points; first, the general point that this issue needs a lot of further thought. As I think he put it, whenever we see a criminal justice Bill we see a hotchpotch of things added by the Government, some of which need considerably greater thought—a classic example of something that this House is good at. Bearing in mind that the Government are anxious to

3 Mar 2008 : Column 901

save a bit of time on this Bill, when the Minister comes to respond he might want to take the amendment away, give it some further thought—possibly send it to a Select Committee, or whatever—and bring it back having done so.

More generally, following on from what both the Liberal Democrat spokesmen had to say about the Bill, there is a difficult point about definitions and subjectivity and objectivity. We are all agreed on certain things. For example, we probably all take what I might describe as the Mrs Patrick Campbell view of these things: we do not mind what appears, so long as it does not frighten the horses. Our problem is that we cannot quite define what does frighten the horses. That is what we must identify in the amendment, and why the Government’s wording is being amended from,


to. That is why the Liberal Democrats are rightly suggesting that “appears to have” is changed to something more precise, such as “has”. It is a question of defining what exactly is frightening the horses, by which I mean creating some public mischief rather than just being something that might offend me or the Liberal Democrats—or even the Government.

This is obviously a difficult issue. I notice the Minister looking hard at his papers and wondering about it. No doubt he will respond in due course. I go back to my original point of whether he might want to take the amendment away and bring it back on some other occasion after we have had some further thought about it and about how properly to define the mischief we are trying to address.

Lord Maclennan of Rogart: I understand fully why the Government should be exercised about the matters addressed in this part of the Bill, but I wholly agree with what the right reverend Prelate said about the anxiety that the Government have not come up with the right answers. The problems of definition in this area are immensely difficult to resolve. What I find missing from this part of the Bill is the consideration, which ultimately made acceptable the Obscene Publications Act, that the judgment of expert witnesses about whether the works being considered were of literary merit would be capable of being led in a case about something that might otherwise be regarded by some as open-and-shut pornography.

The definition of an image in Clause 113(3) that the Government’s amendment seeks to amend is not capable of improvement by the amendment the Government have advanced. It suggests that it would be appropriate to cut out any image that induced sexual arousal. Hardly any great classical play does not have such a moment. If one looks at renaissance painting or sculpture, there is hardly an artist of merit who has not employed an image for that purpose. The definition is far too sweeping, and if one is considering the dangers, the threat or the unattractiveness of filmed material reproduced by electronic means, is one really to take the view that because an image in a film might

3 Mar 2008 : Column 902

have that effect, indeed, might be intended to have that effect, the whole work should be regarded as being of such a nature that the possessor of it should be criminally responsible?

I also think that the Government have not succeeded in improving the language in respect to what is extreme. The issue of whether something is grossly offensive is treated as though it were objectively definable. The fact that something is grossly offensive to one person does not necessarily reflect the general view. It might be thought that the film that recently won an Oscar in Los Angeles, “No Country for Old Men”, was grossly offensive and, indeed, extreme, not only because of the continuing threats in it but because there were acts that threatened a person’s life. I cannot imagine one of Shakespeare’s tragedies that does not involve an act threatening a person’s life that, in itself, might be regarded as grossly offensive if taken out as an image. Lady Macbeth’s famous speech when she is seeking to stir herself up seems to me to have been deliberately, explicitly sexual and designed to evoke a response from the audience.

Secondly, in the definition of an extreme image here we have, under subsection 6(b), a definition that would certainly have led to “Last Tango in Paris” being regarded as a film that it was a criminal offence to possess. The fact that Marlon Brando was engaged in the activity would apparently not be any defence, were the provision to be enacted.

Images fall under the definition in subsection 6(d) where a person performs an act of intercourse with an animal. How many images of “Leda and the Swan” would fall foul of that—images that are regarded as great expressions of human artistic endeavour? A remarkable example springs to my mind in the Kunsthistorisches Museum in Vienna. I doubt whether anyone would deny for a minute that it was intended to have a sexual purpose and a sexual response—or that it was a remarkably realistic image.

The provision is just badly thought out. The whole thing needs to be taken back and worked on again. We will be legislating in haste if we allow this to pass; and we could regret it very much at leisure.

Baroness Howe of Idlicote: I join other noble Lords in their concern that this part is still in the Bill. It is quite clear from the contributions that have been made just how widely that view is held. As someone who comes, not many years ago, from the background of the Broadcasting Standards Commission, the sort of late-night viewing that we were looking at and having to give some sort of judgment on whether it was going too far, seems mild—to put it mildly—in comparison with the sort of things that, as another noble Lord said, we see late at night regularly on practically every channel.

Next Section Back to Table of Contents Lords Hansard Home Page