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As noble Lords will know, there was a great deal of controversy over the authorities’ decisions on a number of proposed Select Committees. Noble Lords will remember, for instance, the arguments over whether there should be a Select Committee on the Barnett formula. My noble friend Lord Barnett, who is not present today, would remember. I am simply saying that I recognise the point raised by the noble Baroness. These are important matters and Parliament has an important role in discussing them.

Baroness Howe of Idlicote: My Lords, I am most grateful to the Minister for giving way and for what he said. However, I should hope that is a matter of concern for both Houses and that a Joint Committee can therefore be set up.

Lord Hunt of Kings Heath: My Lords, that takes me down even more dangerous paths by asking me as a Minister to suggest what the other place should do. But I take the noble Baroness’s point.

I thank my noble friend Lord McIntosh for his kind remarks, although he went on to say that he did not think much of my arguments. I was interested in his recollection of the great days of local government, when it had a role in deciding whether films could be shown in a local authority area. As a member of Oxford City Council in the 1970s I well recall Alderman Fagg chairing a sub-committee of the estates committee which viewed these films on Monday morning at 10 o’clock. I confess that we debated these matters and that I argued that there should be no censorship of any film and it was all unnecessary. Well, I have changed my mind. The noble Lord, Lord McIntosh, has not. He has been a model of consistency over many years on these matters.

Over the past few days I have received many e-mails from many organisations. I understand, of course, my noble friend’s concern about unnecessary intrusion into harmful activities in people’s own bedrooms. However, we are not talking about what might be described as the routine pornography which I am sure accounts for much of the billion pounds and the—as the noble Baroness suggested, though I am not sure how many people—million people; we are talking only about extreme or violent pornography. I want to make that clear.



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The noble Baroness asked me to explain in detail why the Obscene Publications Act and its definitions were not used in the formulation of this clause. This legislation has been proposed because the controls in the Obscene Publications Act are much more easily evaded these days by the use of modern technology, namely the internet, which makes it much easier to use and distribute and therefore easier to possess. As most such extreme material is hosted abroad, controls on publication and distribution are no longer sufficient.

Lord McIntosh of Haringey: My Lords, I am sorry to interrupt the Minister. The issue is not about the controls. The issue is about the definitions. The definitions in the Obscene Publications Act have worked for almost 50 years. Changes in the difficulty of control do not affect that argument at all.

Lord Hunt of Kings Heath: My Lords, I do not think I was arguing that. I was trying to answer the first question posed as to why we are bringing forward this legislation at all. The second question, relating to the noble Baroness’s first group of amendments, is why we have not we have not used the Obscene Publications Act. Her amendment removes the element of the offence which requires that an extreme pornographic image depicts an extreme image and replaces it with a reference to the definition of “obscene”; namely, the “deprave and corrupt” test, which, as she says, is found in Section 1 of the Obscene Publications Act 1959. Her amendment also has the effect of rendering redundant subsections (6) and (7). Those subsections set out the,

test and the list of extreme acts. The amendment has the effect of opening up the offence to all obscene pornography. It would no longer be limited to certain specified depictions of threatening, violent, bestiality or necrophilia images. The noble Baroness may wish to consider the implications of that when she comes to wind up.

My officials and the department, when considering this matter over the months that it has taken to prepare the Bill, saw the initial attraction of linking this possession offence to the existing publication offence. Under the Obscene Publications Act, whether material is obscene depends on whether it would deprave and corrupt those most likely to read, see or hear it. That “deprave and corrupt” test works by reference to the likely audience. In the context of possession there is no audience. Directly importing the deprave—

Baroness Miller of Chilthorne Domer: My Lords, there is an audience of one, who is about to be criminalised should this Bill be passed. How could the officials or the Minister come to the conclusion that there was no audience?

5.15 pm

Lord Hunt of Kings Heath: My Lords, directly importing the “deprave and corrupt” test into this offence would have the effect of requiring the possessor

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of the material to consider its effect on himself. The possible perverse consequence of that could be that less sexually aware members of society become more at risk of committing an offence than habitual users of pornography. So it is clear that the test would have to be adapted. It is not a simple case of referencing. We explored the feasibility of adapting the Obscene Publications Act but concluded that our approach is to be preferred.

The Obscene Publications Act offence is not limited to specified material, but, rather, catches anything which passes the “deprave and corrupt” test. By contrast, the approach that we have taken with this possession offence is to target only specified material. Even if we had used an adapted version of the Obscene Publications Act obscenity test, we would still have had to limit it by reference to specified acts.

As the amendment of the noble Baroness, Lady Miller, has the effect of rendering redundant the subsection (7) list of specified acts, it opens up the clause to cover a much broader range of pornography—anything which could pass the “deprave and corrupt” test. I am advised that it could catch the depiction of degrading sexual acts such as drinking urine or smearing excrement on a person’s body. In that respect, the noble Baroness’s amendment might widen the offence significantly.

We do not consider that by not providing for a direct read-across to the Obscene Publications Act test we open up any significant risk that material could be caught by this possession offence which it would be lawful to publish. It is not our position that the words,

are synonymous with the wording of the “deprave and corrupt” test. Rather—I repeat the points that I have made at earlier stages—it is that the three elements of the offence, the “pornography” test, the “explicit realistic extreme act” test and the “grossly offensive, disgusting or otherwise of an obscene character” test, when taken together, should ensure that the offence captures only material which it would be illegal to publish by virtue of the “deprave and corrupt” test within the Obscene Publications Act.

Amendment No. 15 would reduce the maximum prison sentence available to Crown Courts to deal with the possession of material described in Clause 62(7)(a) and (b) from three years to two years, making it the same as the maximum penalty proposed for bestiality and necrophilia material falling under Clause 62(7)(c) and (d). I have listened carefully to the points raised on this. In considering the penalties for these offences, it is clear that we have considered carefully proportionality with regard to existing criminal offences. We certainly think it right that the maximum penalty for possession of extreme pornographic material should fall below that available for the more serious offence of possession of indecent photographs of children, which is five years maximum. It should fall below also that available for publication, distribution and possession for gain offences under the Obscene Publications Act, which in Clause 69, as your Lordships will be aware, we are raising from three to five years. These are also more serious offences. Further, the penalties should

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not exceed the maximum penalty available for certain substantive offences potentially committed in making pornography, such as those in the Sexual Offences Act 2003 in relation to offences with animals and corpses which carry maximum penalties of two years.

The sentencing levels that we propose are proportionate, bearing in mind the high threshold levels for this offence. I stress that we are not talking about the kind of soft porn to which many noble Lords have referred and which has been referred to in the letters and e-mails that I have received in the past few weeks. It is material that should not be in circulation in this country. I say again that the increased availability of this material is a direct result of the impracticality in the internet age of controlling its circulation by targeting the publishers under the Obscene Publications Act 1959. We think it right to give the courts the means to reflect greater concern about the material featuring extreme sexual violence, whether real or simulated, than is the case for material which is degrading but non-violent. That is the reason for the distinction in the maximum penalties between the categories set out in Clause 62(7).

There are two other points to be made on the noble Baroness’s amendment to the penalty provision. First, her amendment removes, perhaps inadvertently, the capacity of the Crown Courts to impose a fine. Secondly, it deletes the transitional provision of subsection (4), which is required to provide for future changes to the sentencing powers of magistrates’ courts in England and Wales.

On the issue of policing, I hope that I can reassure noble Lords. The police have welcomed this offence. They see it as a further means to take illegal material out of circulation and an additional tool to deal with individuals whose behaviour may be causing concern. This is not, I suggest, a case of policing the bedroom. It is intended to target only the most extreme pornography. We believe that the number of prosecutions will be relatively small, but my understanding—from advice that I have received—is that the offence will be a valuable additional resource for officers already working on protecting the public in this area. I also give an assurance that this offence will not be commenced before a full explanation of it is given to the police and to the courts.

I am aware that this area is controversial. We discussed the principle on Report, and I hope that I have, at the very least, provided some explanation to the noble Baroness of the approach that the Government have taken. She will now have to consider her position.

Baroness Miller of Chilthorne Domer: My Lords, I thank very much all those noble Lords and noble and learned Lords who have spoken. This difficult area is one that I would have found it lonely to do alone, so I particularly thank your Lordships for expanding—better than I can, in all cases—on why these clauses are, in our view, particularly unworkable.

As the Minister says, we dealt with the principle on Report, so the point of coming back at Third Reading is to offer the Government a small chance to make these clauses slightly less unworkable—and slightly

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more reasonable—especially in the light of the history of courts trying to deal with this difficult area, and of juries understanding what is going on. I am particularly glad that the noble Baroness, Lady Kennedy of The Shaws, has joined the House at this point. She has spoken before about how difficult juries find this issue, and obviously has wide experience of why that is so.

This really comes down to the contention that these clauses are, as the noble Earl, Lord Onslow, said, put there to send a signal more than anything else. There was great consensus that they are really unworkable and do not address the issue that the Government are trying to address here. Perhaps the most chilling point in the Minister’s summing up—I thank him for going into some detail—was that when it came to policing this it was for dealing “with individuals” who are “causing concern”. Well, that is pretty difficult. How are they causing concern if they have committed no crime yet? They might be causing concern in all sorts of ways; they might be individuals whom the police do not much like, for a number of reasons, but then they get raided. Again, that really makes me feel worried. This is, as the noble Baroness, Lady Howe of Idlicote, said, all to do with human rights. It would have been better to look at this in the cool light of day. I am sorry that the Minister has resisted the idea. I know that he cannot call for it, but he could put on the pressure to create a Select Committee to look at the whole issue of violence in the media. That, I think, is what really concerns noble Lords.

I hope that, in this instance, the Conservative Benches will indicate whether they support these poorly drafted and unworkable clauses. I have a feeling that, should I test the opinion of the House, they will simply abstain. That would be a pity, as they are usually strong on trying to improve a Bill as the Liberal Democrat Benches are trying to today. It is quite clear that we feel there is still room for improvement. For that reason, I beg leave to test the opinion of the House.

5.25 pm

On Question, Whether the said amendment (No. 13) shall be agreed to?

Their Lordships divided: Contents, 91; Not-Contents, 134.


Division No. 2


CONTENTS

Addington, L.
Allenby of Megiddo, V.
Avebury, L.
Barker, B.
Bell, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Bridges, L.
Burnett, L.
Butler-Sloss, B.
Carlile of Berriew, L.
Carnegy of Lour, B.
Chidgey, L.
Cobbold, L.
Cotter, L.
Cox, B.
Dear, L.
Dholakia, L.
D'Souza, B.
Dykes, L.
Erroll, E.
Falkland, V.
Falkner of Margravine, B.
Faulkner of Worcester, L.
Garden of Frognal, B.
Glasgow, E.
Goodhart, L.
Hannay of Chiswick, L.
Harris of Richmond, B.
Haworth, L.


30 Apr 2008 : Column 273

Hodgson of Astley Abbotts, L.
Howe of Idlicote, B.
Hylton, L.
Jacobs, L.
James of Holland Park, B.
Jones of Cheltenham, L.
Kalms, L.
Kennedy of The Shaws, B.
Kirkwood of Kirkhope, L.
Laird, L.
Lane of Horsell, L.
Lee of Trafford, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
McAlpine of West Green, L.
McIntosh of Haringey, L.
Maclennan of Rogart, L.
McNally, L.
Mar and Kellie, E.
Maxton, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Monson, L.
Montgomery of Alamein, V.
Murphy, B.
Neuberger, B.
Newby, L.
Northover, B.
Palmer, L.
Park of Monmouth, B.
Patel, L.
Prior, L.
Quinton, L.
Ramsbotham, L.
Razzall, L.
Redesdale, L.
Roberts of Llandudno, L. [Teller]
Rodgers of Quarry Bank, L.
Roper, L.
Russell-Johnston, L.
Sandberg, L.
Shutt of Greetland, L. [Teller]
Slim, V.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Steel of Aikwood, L.
Stern, B.
Stoddart of Swindon, L.
Swinfen, L.
Taverne, L.
Thomas of Gresford, L.
Tonge, B.
Tope, L.
Tordoff, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walton of Detchant, L.
Warnock, B.
Williamson of Horton, L.
Young of Hornsey, B.

NOT CONTENTS

Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Armstrong of Ilminster, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bew, L.
Bilston, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Madingley, L.
Burlison, L.
Campbell-Savours, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dearing, L.
Desai, L.
Dixon, L.
Donoughue, L.
Dubs, L.
Elder, L.
Elis-Thomas, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Ford, B.
Foster of Bishop Auckland, L.
Gale, B.
Gavron, L.
Giddens, L.
Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Griffiths of Burry Port, L.
Grocott, L.
Harries of Pentregarth, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Henig, B.
Hilton of Eggardon, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Joffe, L.
Jones, L.
Jones of Birmingham, L.
Judd, L.
King of West Bromwich, L.
Kinnock, L.
Kirkhill, L.
Knight of Collingtree, B.
Layard, L.
Lea of Crondall, L.
Macdonald of Tradeston, L.
MacKenzie of Culkein, L.


30 Apr 2008 : Column 274

Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Masham of Ilton, B.
Meacher, B.
Mitchell, L.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Neill of Bladen, L.
Nickson, L.
Parekh, L.
Patel of Bradford, L.
Pendry, L.
Prosser, B.
Prys-Davies, L.
Puttnam, L.
Quin, B.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Rogan, L.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B. [Teller]
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Snape, L.
Stevens of Kirkwhelpington, L.
Stone of Blackheath, L.
Sutherland of Houndwood, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Tenby, V.
Thornton, B.
Tomlinson, L.
Triesman, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Vadera, B.
Wall of New Barnet, B.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Young of Norwood Green, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.36 pm

Lord Hunt of Kings Heath moved Amendment No. 14:

(a) a person (“D”) is charged with an offence under section 62, and(b) the offence relates to an image that portrays an act or acts within paragraphs (a) to (c) (but none within paragraph (d)) of subsection (7) of that section.(a) that D directly participated in the act or any of the acts portrayed, and(b) that the act or acts did not involve the infliction of any non-consensual harm on any person, and(c) if the image portrays an act within section 62(7)(c), that what is portrayed as a human corpse was not in fact a corpse.(a) the harm is of such a nature that the person cannot, in law, consent to it being inflicted on himself or herself; or(b) where the person can, in law, consent to it being so inflicted, the person does not in fact consent to it being so inflicted.”

The noble Lord said: My Lords, during our debate at Report, I said that the Government intended to address the concerns expressed by the noble Lord, Lord Wallace, and others, about individuals who keep a record of themselves freely and willingly participating in bondage, domination, submission and sadomasochistic practices in which no unlawful harm occurs. We recognise that it would be anomalous if participants in perfectly lawful acts were to be at risk of prosecution for possession of images portraying those acts. We have introduced an amendment which creates a new defence

30 Apr 2008 : Column 275

of participation in acts in which no unlawful harm occurs. The defence will apply in respect of images which meet the very high threshold for the offence. The defence will not apply in respect of bestiality images or necrophilia images which involve a real corpse.

In respect of other material, it will be a defence for a person to prove, on the balance of probabilities, that he or she directly participated in the act or any of the acts portrayed and that the act or acts portrayed did not involve the infliction of any non-consensual harm on any person.


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