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One urges the Minister and the Government to think again. As another noble Lord said, a Joint Committee—a pre-legislative committee of both Houses might be the best way—should look at the implications of what has happened in the past few years. We are having to do that as a result of the Broadcasting Act 2003, which is clearly outdated in a number of respects. It did not take account of just how far the internet was

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likely to be involved in almost every aspect of our daily lives. It certainly worries me that anyone slotting into the internet, Google or any of these places can almost inadvertently come upon the sort of images that they might feel could result in a charge being made against them. That is an appalling thought, not least because of how easily and quickly these things pop up. Liberty makes that point very clear in its briefing to us. That reinforces my clear belief that a much more detailed study needs to be done.

We appreciate why the Government have tabled their amendments—they have seen the concern and have tried to remedy it—but they certainly do not satisfy me. More problems arise from the particular words that have been used. I therefore join other noble Lords in asking the Government to think again. This is too vital an area for us to allow it to be simply an add-on—yet another thing. My noble friend Lord Ramsbotham describes the Bill as a yet-another-thing Bill, which has some justification.

5.15 pm

When we at the Broadcasting Standards Commission judged whether something was in bad taste, we certainly looked at the context of what was being said. That was all-important; was it a classical work—a work that justified the images that were being used? That must remain a test of what you are looking at, although perhaps not many of us would be able to apply that to some of the things that we see inadvertently in today’s world.

In the longer term, we need to look at the possible effect that violent and pornographic images can have on the nation generally, not only on the damaged personalities who have been referred to. I shall give a little example of something that worries me. When I was a very mature student at the LSE, I was assigned to do a little participant observation research. One group of new students in the university, who were studying something like English, were exposed to quite violent, sexual images very early on and all the way through their course. The other group, which was being taught the same course, did the normal course. The moment at which a quite explicit violent and sexual scene was put before these students was interesting, although I do not imagine, because it was quite some time ago, that it was anything like the sort of scenes that we see today on television. It was immediately apparent how horrified the group which had not been exposed to any of these images before had become. That should worry us quite a lot in today’s world. I therefore very much support the call for a rethink of all these clauses.

Lord Wallace of Tankerness: I share the concerns, which have been expressed by many noble Lords and noble Baronesses about the clauses as they are presented to us at the moment, even with the amendments that I acknowledge have been tabled to try to address a number of concerns that were expressed in another place and by the Joint Committee on Human Rights on this particular issue.

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There is still a degree of uncertainty about what the criminal law will be. If we are indeed about to create a statutory offence with the potential for a serious term of imprisonment, we really need something that stands up to scrutiny much more than the terms of the clause. In his final remarks, the noble Lord, Lord Henley, said something about trying to determine what the mischief is. I tried to think who the potential victims of this crime are. Is it those who participate, because if actual events are being filmed, clearly a crime of serious assault will have been committed in any event? If it is simulated and if people are engaged in a consensual activity, it is stretching things a long way to suggest that people who are engaged in that kind of consensual activity, albeit in an activity that may be abhorrent to most if not all of us here, should be criminalised for that.

It is quite clear that in the case of child pornography, a child is incapable of giving consent. Therefore, it is only right that that is totally beyond the pale and is criminalised. We should tread very warily before we engage in criminalising something that is consensual. It would be very odd if a couple engaged in a consensual act which in itself would not be criminal but, if it was photographed, the possession of the photographs could be criminal. That seems to be going too far. On those who are perhaps viewing this material, again I have difficulty in accepting that that might be the case.

In introducing his amendments, the Minister made the point about how the Government are trying to bring the definitions more closely in line with the Obscene Publications Act. I note that Section 1(1) of the Act provides:

It has already been said in this debate that the type of people who are liable to see this are probably those who seek it out. It is very difficult to perceive, therefore, if one is trying to import the Obscene Publications Act, the type of people who are liable to see it and whether they would be victims of the crime intended to be created by this clause.

On whether the wider society could be the victims, my noble friend Lady Miller of Chilthorne Domer has indicated her concerns about the reference to the rapid evidence assessment referred to by the Minister. But it is equally the case that in the Government’s consultation document on these proposals, both in the executive summary and on page 10, they acknowledge the question:

In their consultation document, the Government accept that the case is not made and that there has not been conclusive research to the effect that it has a negative effect on wider society.

Before we create this, we are entitled to ask who the victims are. As yet, I do not think that that question

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has been answered. Just because we may find the type of material abhorrent, that is very often the time when we should stop and pause. It is very easy to talk about defending liberties and freedom of expression when people are making comments about things that we most readily agree with. But, as the European Court of Human Rights said in the case of MÃ1/4ller v Switzerland,

We should hesitate before we go down this road. I agree with Members of the Committee who have said that there will be other ways to address our concerns; perhaps a Joint Committee of both Houses could look at the evidence, or we could tackle more and engage more with the internet service providers. In the long run, that may be a more effective way of curbing this activity rather than trying to create an offence, which many Members of the Committee have said has many weaknesses in it.

Baroness Howarth of Breckland: I had not intended to speak in this debate. The government amendments may be flawed, but other Members of the Committee have more expertise than me on that. I want to put the perspective of different experience. I am the deputy chair of the Faithfull foundation, which deals with sexual and child offenders. I also worked for 10 years on the Independent Committee for the Supervision of Standards of Telephone Information Services, which regulates pornography on telephones. I was one of the people responsible for ensuring that we have an opt-in rather than an opt-out service, so that children cannot look at that kind of pornography. Therefore, I have some background to and understanding of the research and information in relation to pornography. I was very struck by the comments made by the noble Baroness, Lady Howe of Idlicote, who described the experiment of people seeing a great deal of pornography and their shock at it being eroded, as against those who come to it fresh and feeling quite disturbed.

Much of our work is with men who have telephoned the Stop It Now helpline through the Lucy Faithfull Foundation. These men have either watched adult pornography or have attempted to access child pornography. I should mention to my noble friend Lady Howe and perhaps to the Government for their information that it is quite difficult to get on to one of these sites. If one has to have the unpleasant experience of watching this material as part of one’s job, one cannot get to it by accident; a determined effort has to be made. This means that someone has to be mentally and emotionally attuned to wanting to see this material. The men who have come to us report that they became increasingly disturbed by the material they viewed, indicating that there is a progression here. Some people can see this material and maintain their stability, but not many. It erodes disgust and distaste, allowing someone to move on to the next stage. A person may start by looking at adult pornography, progress on to child pornography, and then begin to exhibit difficult behaviour that results in wanting to go beyond visual images and get in touch with real children.

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It may be that the Government need to look at this again, but like the right reverend Prelate the Bishop of Chester, we must not try to avoid the fact that there is a problem here. The research can be looked at in a number of ways, and I certainly looked at the methodology of some of the original research. I was left feeling uneasy with its conclusion that pornography does not have the effect that experience clearly shows me every day in men who come to the Stop It Now programme saying, “I want to stop this now. Can you help me, because I can see where I am going?”. I am not commenting on whether it would be right or wrong to accept the amendment, but I plead that we do not shut the door on having a provision to deal with what is a very real problem in our society.

Lord Hunt of Kings Heath: We have had an interesting debate more like that held at Second Reading rather than on the detail of the amendment before us, and it is none the worse for that. I know that noble Lords would love to see a Select Committee set up to consider this issue in greater detail, and I shall come on to that in a moment. First, however, I want to say to noble Lords that this clause has had substantial consideration. It was consulted on widely through the consultation held on the case for a new offence in 2005, which was followed by publication of a summary of the responses to that consultation and then the Government’s conclusions in 2006. In addition, when the Bill was considered in the other place, the Public Bill Committee took evidence from a number of witnesses. There was also considerable discussion in Committee. Indeed, the reason I am bringing forward a number of amendments today is because they reflect the discussions held in the other place, which shows that parliamentary scrutiny is indeed working.

I understand that noble Lords would like to see more consideration of this matter. I do not know whether it would help but, if between Committee and Report noble Lords would like me to arrange a meeting to go through this issue in detail, I would be happy to do so. I am sure that they would then be able to access as much information as I can produce in advance of further discussion on Report. In response to the noble Lord, Lord Henley, I should say that the Conservative Party welcomed the consultation on this matter, and indeed the submissions made by Mr Tim Loughton and the right honourable Mrs Theresa May supported the Government’s determination to address abuse of the internet in order to gain access to extreme images of violence and pornography.

I understand the balance that must be struck between freedom of choice, individual freedom and the “thought police” on the one hand, and the potential ill effects of pornography, particularly some of the most appalling pornography we are discussing here, on the other. I do not think anyone would claim that it is easy to get the balance right, or that we will have unanimity of opinion. However, I stress that this is not a debate about the rights and wrongs of pornography in the round but about the wide availability of extreme or violent pornography, particularly with the growth of the internet, which because it is often produced in other countries is not covered by the current legislation. That is the reason we are here today and debating what I accept is a very difficult matter.

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5.30 pm

I say to the noble Lord, Lord Wallace, that the material we are seeking to make it illegal to possess, after consultation with the police and the Crown Prosecution Service, is that which would normally be subject to prosecution under the Obscene Publications Act were it to be published or distributed. The controls in that Act are more easily evaded by the use of modern technology, which, as I said earlier, also makes the material easy to produce.

I stress that this is not targeting sexual arousal or pornography per se; it is but one of the elements contained in the Bill and is subject to the changes that will be made as a result of the government amendments. The elements of the test, in a sense, are that it must be an extreme pornographic image which is grossly offensive, disgusting or otherwise of an obscene character. An image would only fall under this provision if it portrays in an explicit and realistic way any of the following: an act which threatens a person’s life; an act which results, or is likely to result, in serious injury to a person’s anus, breast or genitals; an act which involves sexual interference with a human corpse; or a person performing an act of intercourse or oral sex with an animal, whether dead or alive.

Of course there will be debate about whether this captures precisely what we want to capture and whether it will cause difficulties in interpretation. I understand that. All I seek to illustrate is that we are talking about some of the most extreme pornography there can be.

On the question of evidence, I was very interested in the comments of the noble Baronesses, Lady Howarth and Lady Howe. The noble Baroness, Lady Howe, referred to the evidence of violence on television, which has been ongoing for more than 40 years. I have referred to the key findings of the rapid evidence assessment research—I know noble Lords have read it—which supported the existence of some harmful effects from extreme pornography on some who access it: the increased risk of developing pro-rape attitudes, beliefs and behaviours and committing sexual offences. Although the research assessment said that this was also true of some pornography which did not meet the extreme pornography threshold, it showed that the effects of extreme pornography were more serious.

Men who were predisposed to aggression or have a history of sexual or other aggression were more susceptible to the influence of extreme pornographic material. This was corroborated by a number of different studies using different methods and different samples. It is true that the REA found no formal research studies of these effects on those who participate in making extreme pornography, but the noble Baroness, Lady Howarth, was surely right when she, essentially, reported on her organisation’s experience with individual men; it seems plain common sense that this awful stuff must have a negative, adverse impact on some of the people viewing it.

The freedom of individuals to view these materials in the privacy of their own homes is a difficult issue—and this legislation will involve a restriction—but our defence

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is that the material that we intend to target is at the extreme end of the spectrum and which we believe most people would find abhorrent. Of course there will be debates on this and I accept that this is a restriction, but the Government believe that it is an acceptable restriction.

The noble Baroness asked about the context in which it is viewed. If she is watching one of these images but is creating a dish chopping onions, in what context is it? The context means “that in which the image sits”. In other words, is it a brief viewing within a film or is it a part of a series of pornographic images? It is not in the context of chopping onions but in the context of the clip and the film. I suspect the noble Baroness knew that really.

On the exclusion of material made by consenting adults—

Lord Henley: The noble Lord mentioned earlier “what most people find abhorrent”. Are the Government aiming for something that will cover what most people find abhorrent or something which will create a public mischief, a point on which I touched but which the noble Lord, Lord Wallace of Tankerness, put better? That is very different from what most people find abhorrent.

Lord Hunt of Kings Heath: Undoubtedly the aim is what most people find abhorrent.

On the difficult question of material made by consenting adults which the noble Lord, Lord Wallace, raised, it is often very difficult to tell from an image whether or not consent has been given. Images can be circulated far beyond those who participated in the act. Broadly, most of these images will have been made in another country and the immediate concern of the Government is on those who possess those images. That is why the Bill is drafted in the way that it is, bearing also in mind that production will be covered by existing legislation.

I understand the points raised by noble Lords about the clarity of the law. The amendments that I have brought forward seek to respond to the points raised by Members in another place and to give greater clarity. Of course information will be made available to members of the public when this is brought into fruition. We have tried to make the clause as clear as possible.

As regards the concern of my noble friend Lord Faulkner in relation to disabled people, we have no evidence that disabled people are more likely to access extreme violent pornography than anything else. I have been talking about the very extreme end and not pornography in general.

On the question of those who are now outside the law who will be covered by being in possession if this was enacted, the position is that those who continue to possess material which would fall under the scope of this offence after the legislation is brought into force will be committing an offence. Again, rather as in answer to the last point, we will want to make sure that information is made available about the offence and the circumstances in which it operates.

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I have offered to arrange meetings between Committee and Report to discuss this further. The Government remain convinced that we need to tackle these elements of extreme violent pornography. Noble Lords may have points to make about the way the amendment is drafted, but I hope they will not dissuade the Government from pursuing this course.

Lord Thomas of Gresford: It may very well be right that the Government should tackle this problem, but this debate indicates that the way they are trying to tackle it is unclear, as are their aims: are they trying to ban people from possessing simply material that causes sexual arousal, or, as my noble friend Lord Wallace said, material that incites a public mischief?

I am taken back to the Oz trial back in 1971—that may be before the Minister’s time. The indictment in that case is interesting. The editors were charged with:

Geoffrey Robertson, now Queen’s Counsel, a colleague of the noble Baroness, Lady Kennedy, and later to write the leading legal textbook on obscenity, said in an article in Cherwell,

He added, “Nor should they”. He went on to quote from an Arts Council report of 1969 where it had quoted with approval the evidence of Dr Anthony Storr, a well known and leading psychiatrist of the day, who said that when people use the terms “depraved” and “corrupted”,

As the Minister said just now, recent research seems to confirm the views that were expressed nearly 40 years ago. If the offence—not of producing and distributing material of this sort but of simply possessing it, never mind whether you are looking at it—is to be punishable by three years’ imprisonment, it is necessary to know precisely what the limits, boundaries and purpose of that offence are to be. The clause may have been drafted after consultation, as the Minister said, but it is clearly held all around this House to be unsatisfactory. It should be looked at again and withdrawn from the Bill.

The Lord Bishop of Chester: To use what most people would find offensive as a central criterion is too subjective. We live in a society where we have a diverse range of tastes; there are lots of things I do not like at all but which are legal in this society. It is interesting that certain noble Lords got a great number of letters and e-mails on certain topics. I got none, and I wonder why; no doubt it was assumed by those concerned that I was a hopeless case. “What most people find offensive” cannot be the right principle to operate on; it is too much the law of the crowd.

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