HL Deb 28 June 1978 vol 394 cc325-51

3.42 p.m.

Baroness FAITHFULL

My Lords, I beg to move that this Bill be now read a third time.

Moved, That the Bill be read 3a.— (Baroness Faithfull.)

On Question, Bill read 3a with the Amendments.

Clause 1 [Indecent photographs of children]:

Lord WIGODER moved Amendment No. 1:

Page 1, line 22, at end insert— ( ) Where a person is charged with an offence under subsection (1)(a) above, it shall be a defence for him to prove that he had a legitimate reason for taking the photographs or permitting them to be taken.

The noble Lord said: My Lords, the purpose of this Amendment is to draw attention to a particular problem which was discussed briefly by your Lordships at Committee stage. Perhaps I might say at once that I have not the slightest intention of pressing this Amendment to a Division this afternoon. I hope that the discussion might enable the Government to reconsider their position on this matter before the Bill comes to be considered in the other place for the first time; and it will in fact be the first time that the other place has considered this Bill in its present form.

The problem arises in this way. Under Clause 1(1)(b) of the Bill, it is an offence to distribute or show indecent photographs; and under Clause 1(1)(c) it is an offence to have indecent photographs in one's possession with a view to their being distributed or shown by others. There is provided in Clause 1(4), just over the page, a statutory defence to anybody who is charged under either of those two subsections; namely, that that person had a legitimate reason for distributing or showing the photographs, or for having them in their possession. There is, however, no statutory defence provided under the Bill to any offence which is alleged under Clause 1(1)(a)—the taking, or the permitting to be taken, of any indecent photograph of a child. The purpose of this Amendment would be to provide a person charged under Clause 1(1)(a) with a similar defence; namely, it would be a defence for such a person to prove that he had a legitimate reason for taking the photographs or for permitting them to be taken.

All I have in mind on this matter is that there appear to be certain categories of people who may, with entirely legitimate reasons, take or permit to be taken photographs of children which may in fact be regarded as indecent. During the Committee stage there were mentioned, for example, police officers who have the unpleasant task of taking close-up photographs of children's private parts after an allegation of some sexual offence, for example, or medical experts who may wish to take photographs for the purposes of including those photographs in genuine medical textbooks dealing with particular conditions. I have had the duty of looking at such photographs from time to time. I can assure your Lordships that some of them are extremely unpleasant. Some of them undoubtedly might be regarded as indecent, and undoubtedly might fetch sums of money if they were traded in on the pavements of Soho. It seems a little unfair that a person who has such a genuine, legitimate reason for taking or permitting such photographs to be taken should find himself without any defence at all under this Bill, when it is an Act, except, of course, that he would have to rely on the benevolence of the Director of Public Prosecutions, who might obviously in such circumstances say that he would not wish to consent to a prosecution.

I have been in correspondence with the noble Lord, Lord Harris of Greenwich, on this matter. What he says, if I may quote his letter about this particular matter, is simply this: In so far as the police investigation of crime or medical research require, for example, explicit photographs of the genitalia of children, we regard it as preferable to rely on their being regarded as lying outside the definition of the offence"; coupled, of course, with the requirement of the consent of the Director of Public Prosecutions. I find it difficult to understand the observation, we regard it as preferable to rely on their being regarded as lying outside the definition of the offence", because if they are in fact indecent photographs they will be covered by this Bill in its present terms.

May I say at once that one of the reasons why I would not seek to press this matter further than to draw attention to it today is that I suspect that there will be very few prosecutions brought under this clause at all when the Bill becomes law, and it may very well be that there will never be a prosecution in which the issue arises, which I have indicated to your Lordships is nevertheless one that might arise. But it would appear that if we are putting legislation on the Statute Book it might perhaps be desirable that we should put it on the Statute Book in its best possible form. In those circumstances, and for those very limited reasons, I beg to move this Amendment.

Lord HOUGHTON of SOWERBY

My Lords, the noble Lord, Lord Wigoder, addressed himself to the Government on this Amendment. I have been very puzzled of late to know whose Bill this is. I thought this was a Private Member's Bill. It certainly came as a Private Member's Bill from another place, and it is being sponsored by the noble Baroness, Lady Faithfull; who, if I may say so with great respect, seems to have acted as a kind of midwife to this Bill and left its care mostly to my noble friend the Minister of State. I should have thought that, being a Private Member's Bill, we listen to the advice of the Government but we do not let it swarm over the whole proceedings and take charge of the Bill. So I think that here we have an Amendment which the House is entitled to consider on its merits; and I rather regret that the noble Lord who has just spoken always seems to precede what he has to say by assuring the House that they will not be troubled with a Division. Why should the House not be troubled with a Division if there is something upon which strong feelings exist?

I support this Amendment because it strengthens the position of a person who may have a legitimate reason when faced with a charge under Clause 1(1)(a). I am afraid that it had escaped me that the debate on legitimate reasons which we have had twice already related to a charge under Clause 1(1)(b) or (c), which, as the noble Lord pointed out, was to do with showing or distributing, and not with taking, the photograph of which complaint is made. I think that a Bill as draconian as this, which exposes persons to the caprice, to the prejudices and to the emotions of a jury, or, if I may say so with respect, of a judge (and, after all, judges are quite human, at least when you meet them off the bench, and I assume they are when they are on it) should provide that this defence is available to a person so charged.

I know that those who claim to be the initiators of this Bill are shrill in their objections to having any legitimate reason as a defence in the Bill at all. On May 18th—the day of the Committee stage of this Bill, a letter appeared in The Times newspaper under the name of Mrs. Mary Whitehouse. She was criticising the Home Office Amendment to provide a legitimate reason, as is now in the Bill. She said: It is our contention, as initiators of the campaign"— mark the words!— against child pornography that clause (a) should be removed from the Bill"— and this is paragraph (a) of the Amendment proposed by the Government— since it would present defence counsel with what might best be described as the statutory loophole. The letter went on later to say: …if the defence clause to which I have referred is allowed to stand then the Protection of Children Bill will have lost its teeth and the British people who virtually unanimously back the campaign to outlaw child pornography will feel themselves betrayed. More importantly, they are unlikely to forget that the Government did not dutifully—or adequately—protect its children. My Lords, that portentious warning is given in the name of the "initiators" of this Bill and of the campaign against child pornography. This is the kind of thing that we are up against. My noble friend Lord Longford, himself, the other day opposed the inclusion of the legitimate reason as a defence in the Bill. He wanted to substitute words to the effect that it should be only in the course of duties under the law. After a notable speech by the noble and learned, Lord Scarman, my noble friend Lord Longford withdrew his Amendment, so that the legitimate reason is in the Bill as it applies to Clause 1(b) and (c); and the noble Lord, Lord Wigoder, in moving his Amendment wishes to provide a similar defence for a charge under Clause 1(a). I think that this is right and proper. I think that if there is to be no opportunity for an accused person to offer what he may feel is a legitimate reason (and which he may try to prove to the satisfaction of the court is a legitimate reason) then serious injustice may be done.

I have already indicated that, in Scotland, photographs have been the subject of charges on the grounds of being lewd and libidinous—which means vulgar, vile and detestable—and which it is extraordinarily difficult, I think, for a person of normal emotional balance to regard as indecent. If there is to be no legitimate reason listened to in a court from a person who may be charged with taking such a photograph, I think that it will be a grave weakness of this Bill.

I hope sincerely that my noble friend will not seek to occupy the position of a Government spokesman, adopting a Government point of view on this Bill. We can listen to what advice he may give; but I think that the House is entitled to reach its own conclusion on a matter of this kind. It is a simple question of justice, and another place will have the opportunity of considering the changed form and, as the noble Lord pointed out a few moments ago, it will be refreshing to see another place giving detailed consideration to the Bill, because they have given none so far.

Baroness FAITHFULL

My Lords, I should like to take up the first point made by the noble Lord, Lord Houghton. If I am to be described as a midwife, then I am proud. I only hope that I am not a shrill one. This Bill was a Private Member's Bill; it is a Private Member's Bill; but there has been agreement between the noble Lord, Lord Harris, and myself, and I should hope that the House would have approved of a method of co-operation between the Government Front Bench and the Opposition Front Bench.

3.54 p.m.

Lord GARDINER

My Lords, I should like to support this Amendment. With some experience of law reform, I think that there is good law reform and bad law reform. Good law reform takes place when a body like the Law Commission consider a particular subject and what, if any, changes should be made. They get out a working paper of their proposals and then, for a considerable period of time, there is a great deal of consultation between them and everybody who might be affected by the proposed changes in the law. It is only then that they come forward with their report and proposals for amending legislation. Bad law reform takes place when there is some article in a newspaper, say, the News of the World, or some scare, as a result of which there is a demand for instantaneous legislation—and instantaneous legislation is almost invariably bad.

I approach this Bill on the footing of the speech made by my noble friend Lord Harris at Second Reading, when he explained to us, first, that the Home Office had consulted with the Director of Public Prosecutions and the police who, with great respect, are in a much better position to know than my noble friend Lord Longford or Mrs. Whitehouse, that there was no evidence whatever that there had been any current increase in pornographic photographs of children. And, secondly, that if there were, then, with one small exception, clearly stated by the noble Lord, Lord Wigoder, on Second Reading, the police had ample power to deal with them. There was really only one small exception which needed to be covered. I should have thought that some defence for (a) was equally relevant to (b) or (c).

This has really been a most well intentioned campaign arising out of ill-informed newspaper articles. The Law Commission themselves had provided legislation for what they thought ought to be done in this sort of field, of pornographic films, et cetera. There has not been Government time to deal with that. The Government, on the other hand, have referred the whole question of obscenity to a Committee. It seems to me rather odd, when this Committee is still sitting, that we should be faced with this demand for instant legislation. For those reasons I would support this Amendment.

Lord REDESDALE

My Lords, I should like to say from these Benches that there has been nothing said at this stage that is new and that was not said at the Committee stage. At that time, I felt that the Minister put forward a very good argument and I should certainly advise my noble friends on these Benches not to accept this Amendment.

I should also like to say this to the noble Lord, Lord Houghton of Sowerby. Without exception, I think, on every Amendment to which he has spoken, he has introduced a somewhat snide attack on my noble friend Lady Faithfull. I felt that that was rather unfair. I admire the noble Lord for his courage in standing up for something which I think is unpopular and for earning what could be the title, "the toast of the pornographers" in supporting them. I know that he does it from his own personal convictions of freedom, and I admire him for it; but I do not believe in what he says. I do not think that anything new has been said and I do not think that we should support this Amendment.

4 p.m.

The Lord Bishop of LEICESTER

My Lords, I should like to say a word about this. The noble Lord, Lord Wigoder, introduced this Amendment in extremely moderate tones, and others have taken up the theme in a rather more emotional way, using the opportunity of the Amendment to voice again their general dislike of the Bill itself. They are entirely entitled to that line of policy if they so choose; but it is a mistake to go into such things as the originators of the campaign, Press articles and matters of that kind. We are concerned with the Bill which has been laid before the House—that and none other—and the Amendments that are being proposed to it.

I cannot think that any great harm would be done if the Amendment were introduced; but I hope that the noble Lord, Lord Wigoder, will not think that we are in any way convinced by the arguments that he used, which seem to me to be extremely far-fetched. First, he has to say all the time that we are talking about photographs that might be judged to be indecent. I suppose from the point of view of law one has to safeguard every conceivable situation; but if one really thinks that somebody is going to pry into the inner laboratory photographs of a surgeon or a physician, or into the records of a police officer who is concerned after an inquest or something of that kind, and bring a charge that the photographs involved are indecent, he must have a very lively imagination. I am inclined to vote against the Amendment, not because of the Amendment itself but because of the spirit in which it is being supported, but not by the noble Lord who moved it.

Baroness GAITSKELL

I should like strongly to support this Amendment of the noble Lord, Lord Wigoder. I am not a lawyer but the Bill has great dangers in various areas. This Amendment puts a stop to some of them.

Lord BEAUMONT of WHITLEY

My Lords, I want to say a word in support of the Amendment. We shall listen with great interest to what the noble Lord, Lord Harris of Greenwich, has to say. But we cannot too often say that it is tremendously important that whatever safeguards there are in the way of approval by the DPP, it would be wrong that we should pass a Bill in a form which means that totally innocent people are guilty of breaking the law whether or not they are prosecuted. That is a statement of principle which is very nearly unarguable. It applies whether or not people rummage about in files.

I remain absolutely aghast at the argument of the right reverend Prelate, who said that he was inclined to vote against the Amendment, not on the Amendment itself but on the spirit in which it is supported. This Bill is likely to be on the Statute Book for a long time. During that period people may or may not be prosecuted. I tend to the view of my noble friend that not many of them will be prosecuted. Nevertheless, it will be there as a criminal statute. It will apply to people long after the right reverend Prelate and I are dead and gone, and long after everyone has forgotten whether or not the noble Lord, Lord Houghton of Sowerby, made a splendid speech or a bad speech.

We are concerned with what goes on the Statute Book. This Amendment must improve the Bill and no serious argument has yet been produced against it. That is why I hope that the Amendment can be accepted or, if not, that your Lordships will carry it.

4.5 p.m.

Lord HARRIS of GREENWICH

My Lords, if I may deal briefly with what my noble friend Lord Houghton of Sowerby said when he appealed to me only to give the House advice, I am not quite sure what else I can give other than advice. It is foolish for me to pretend that I can drive through a Home Office view on this matter in the teeth of fierce opposition from every quarter of the House. I can only tell him what our judgment is on this matter; that is, that this Amendment would not improve the Bill. The House, as he said, must reach its own conclusion. I agree with the noble Lord, Lord Wigoder, that the number of prosecutions involved in this limited area of the Bill might be fairly small. I would not disagree with that.

Nevertheless, we have to look at the problem which has been identified in this Bill before coming to a conclusion on it. Before addressing myself to the terms of this Amendment, should like to deal with the point made by my noble and learned friend Lord Gardiner when he said that good law reform to some substantial degree came from the Law Commission. I agree. But a great deal does not; it comes regularly before both Houses of Parliament. I agree with the implication of his remark that hurried legislation can often be very bad legislation. That is certainly true of the issue we were discussing only a short time ago, the 1911 Official Secrets Act. There have been a series of problems which have arisen as a result of the speed with which that legislation was pushed through Parliament.

We can hardly say that about this Bill. We have given the most meticulous care to discussing every aspect of this legislation. These Amendments will go back for discussion in another place, perfectly properly, so that they may come to a conclusion on the matter. We have discharged our responsibilities so far as this particular Amendment is concerned in the appropriate fashion.

If I may return to the language of the Amendment which has been proposed by the noble Lord, Lord Wigoder. I dealt during Committee with our reasons for drafting the defence so that it applied only to offences of distributing or showing indecent photographs of children and of possessing such photographs for those purposes; but I welcome the opportunity of saying a little more about our attitude towards allowing the defence to those charged with the offence of taking indecent photographs of children.

We have to recognise—it is self-evident—that what we are essentially concerned with in these offences is child pornography. There have been arguments based on the need to exempt certain kinds of photographs, such as those which parents may take of their unclothed children—quite reasonably, we have devoted a great deal of attention to that—or which may be taken for medical or scientific purposes or by the police in the wake of sexual offences committed against children. Our view is that the test of indecency already exists to separate photographs which are offensive from those which are innocent or which have been taken with a clinical rather than a prurient approach. I quoted during the Committee stage judicial authority for the proposition that the simple nakedness of children is not indecent, and I do not believe that ordinary parents are going to be in the least vulnerable in respect of pictures they take of their children on the beach or in the garden without clothes. I do not believe that that is a real problem. Nor do I think that a responsible medical journal is likely to print photographs with the kind of ingredients additional to simple nakedness which a court is likely to find in their context—and I do not believe that the concept of indecency can be divorced from the context—are indecent.

Arguments have also been put forward in relation to the photograph which accidentally turns out to be indecent, but this case can be overstressed. I have already made clear, as I did in a fair degree of detail in Committee, that photographs of naked children are by themselves unlikely to be indecent, and I do not think we need worry about the case where a naked child intrudes on a photographed beach scene. It seems right otherwise to place responsibility on the photographer for what he photographs; but in the case of a genuinely unintentional indecent photograph, I should have thought it perfectly appropriate to rely on the discretion of the Director of Public Prosecutions in giving his consent to a prosecution.

The purpose of the defence in the Bill is not to remove liability in respect of photographs which are unobjectionable—because we think that is done already by the test of indecency—but to allow necessary and desirable uses of photographs which are clearly objectionable. The nature of those uses has been discussed during earlier stages of the Bill but, briefly, we are thinking in terms of use by the police, the courts, the Home Office and indeed the research worker. The question which the Amendment moved by the noble Lord, Lord Wigoder, prompts is whether, in addition to certain people being allowed to make use of photographs already in existence, they should be allowed to use children for the purpose of taking indecent photographs. That would surely be quite outside the intention of the Bill. To allow limited uses of photographs which come to light is entirely a different matter from permitting children to be photographed indecently, and I think we should avoid giving the impression, by passing this Amendment, that the indecent photography of children should ever be a lawful activity.

The Government's view continues to be that it is right to provide certain defences to those in possession of indecent photographs of children in circumstances we described at some length during previous stages of the Bill. Our view also is that it would be inappropriate for the same defences to be open to those who take those photographs. In the circumstances, I very much hope that the noble Lord, Lord Wigoder, will not press this Amendment.

Lord WIGODER

My Lords, this Amendment was intended as an extremely modest suggestion to deal with an eventuality that I recognised was likely to be largely a hypothetical one. I had no intention of prompting the issue to be joined between those who believe this Bill happens to be a tremendous step forward against a grave social evil, and those of your Lordships who believe it to be a retrogressive measure. I myself do not fall into either camp. I believe this is a useful and sensible little measure which may perform some modest purpose.

Having said that, I am bound to say that I find the answer given by the noble Lord, Lord Harris of Greenwich, not entirely convincing as regards the point that I, at least, sought to raise on this Amendment. I find it difficult to see why, for example, police officers should be put in the position where they are technically committing an offence: that a police officer, who might take a photograph of a grossly indecent act involving a child for use as evidence in a case—and these days there are very often cases where videotape recordings are made of offences actually being committed—would find himself without any defence under the Act.

Having said all that, I am myself not minded to regard this matter as of such importance as to seek to press it to a Division. I hope that those who are sponsoring the Bill, together with the Government, will consider very carefully when the Bill goes back to the other place the observations made by your Lordships during our debates. I would ask leave of your Lordships to withdraw the Amendment.

The LORD CHANCELLOR

Is it your Lordships' pleasure that the Amendment be withdrawn?

Lord HOUGHTON of SOWERBY

Object !

The LORD CHANCELLOR

The question is that Amendment No. 1 be agreed to.

On Question, Amendment negatived.

4.14 p.m.

Lord HOUGHTON of SOWERBY moved Amendment No. 2:

Page 2, line 13, leave out subsection (6) and insert— ("(6) Offences under this Act shall be included in sections 17 and 22 of the Extradition Act 1870 and sections 16 and 17 of the Fugitive Offenders Act 1967 (application to Channel Islands, Isle of Man and United Kingdom dependencies).").

The noble Lord said: My Lords, I suppose this is where I am deserted by friends of the libertarian society, where people can behave reasonably without being harassed by repressive legislation. This Amendment, which I beg to move, seeks to relieve the authorities from chasing round the world for people they cannot now get back. We cannot get Mr. Biggs back from South America; we cannot get back a certain gentleman from Malta—and look how long it is taking to get Mr. Tarling back to Singapore! Extradition is a long, painful and expensive business, in which nations may suffer humiliation at the hands of others.

In the case of murder, you know there is a crime; you know there is somebody who has committed a crime. You have a strong suspicion that a certain person can be asked to answer a charge; so one seeks, if he has left the country, to get him back. A train robber has robbed somebody; there is no question or doubt about it. He has stolen a lot of money. But when you come to a person charged with taking or distributing indecent photographs you are in an entirely different field of criminal law.

The noble and learned Lord, Lord Scarman, said in the course of the Report stage that indecency is what decent people think to be indecent. That is the charge upon which extradition proceedings presumably would rest. I do not know whether or not we want to become the laughing-stock of the world, but I cannot believe that we want to spend any of the resources of the nation in fruitless attempts to get people back from other countries on the kind of charge that might be made under the Bill, and therefore my Amendment restricts proceedings for extradition to the Channel Islands, the Isle of Man and United Kingdom Dependencies. That seems to me to be quite enough. After all, the kind of crime for which we might seek to get an accused person back may not be a crime in the country to which he has gone and they will not understand what we are doing.

I know, of course, that these matters become subject to the judgment of authorities, but I see no reason at all why one should pass a Bill, which clearly has flaws and weaknesses in it, in the hope that somebody else will make common sense of it in the course of its administration. I think, therefore that we ought to be reasonable in restricting the area of attempts to recover people who are chargeable under the Bill. I beg to move.

Lord HARRIS of GREENWICH

My Lords, before I turn to my noble friend's Amendment, it may be helpful if I explain what Clause 1(6) does. It makes offences under this Bill extraditable under the Extradition Act 1870 and the Fugitive Offenders Act 1967. This is done by adding the offences to the Schedule to each Act which sets out the list of offences for which extradition may be granted under that Act. The second part of subsection (6) of Clause 1 ensures, first, that the offences are extraditable in the Channel Islands and the Isle of Man by extending Section 22 of the 1870 Act and Section 16 of the 1967 Act to the subsection. Provision is also made for making the offences extraditable in United Kingdom Dependencies by extending Section 17 of the 1870 Act and Section 17 of the 1967 Act to the subsection. Subsection (2) of Clause 8, which extends subsection (6) of Clause 1 to Scotland and Northern Ireland, ensures that the offences are also made extraditable throughout the United Kingdom.

It is right that these offences should be made extraditable, for they are serious offences; but I should perhaps remind your Lordships that extradition is based on the principle of reciprocity. This means that we shall only be able to seek the extradition of a person accused or convicted of one of these offences from a State with which not only do we have extradition arrangements, but where the same acts are also criminal offences. That precisely meets the point that my noble friend Lord Houghton raised a few moments ago. As I have made clear, the principle of reciprocity is absolutely essential to extradition arrangements.

Turning now to the precise language of my noble friend's Amendment, it has the effect of removing the core of subsection (6) of Clause 1, which makes offences extraditable, and substituting for it a provision which I am afraid has no effect at all. To add the offences under the Bill to Sections 17 and 22 of the 1870 Act, and to Sections 16 and 17 of the 1967 Act, achieves nothing, for those sections simply provide for the extension of the relevant Act to the islands or the Dependencies. As I have explained, the offences are set out in the Schedules to the two Acts, and it is to these Schedules that offences under this Bill should be added. In the light of what I have said, I hope that my noble friend will not press this Amendment, because its passage would add nothing at all. On the central question which he raised about general extradition arrangements, I also hope that I have said something which will satisfy him on one of his main anxieties.

Lord HOUGHTON of SOWERBY

My Lords, I know that these Home Office briefs put as many obstacles as possible in the way of trying to apply a fairly common sense and reasonable principle. But, if I may say so, the job of Ministers, sometimes, is to brush aside briefs of that kind and look objectively at what it is proposed to do. Presumably, if we had no Bill such as this, there could be no extradition on matters arising under this Bill. Therefore. I cannot see that there would be any reciprocity between a Government who might have different or more repressive laws than ourselves, and this country which might decide in its wisdom not to have them. So that reciprocity is scarcely an argument here, when we are creating a new crime in this country which makes no difference at all to whether similar acts are criminal offences in other countries.

This is the kind of baffling problem that laymen, such as myself and other noble Lords, have when proposals of this kind have not been thoroughly analysed by people competent to look at them from a legal point of view, bearing in mind what is the object of the Bill. Therefore, I do not feel willing to withdraw anything. If the House likes to reject the Amendment it can do so, but I am not in the mood to surrender at any stage on this Bill.

On Question, Amendment negatived.

Clause 3 [Offences by corporations]:

4.23 p.m.

Lord HOUGHTON of SOWERBY moved Amendment No. 3: Page 3, line 13, leave out ("neglect") and insert ("wilful negligence").

The noble Lord said: My Lords, this Amendment refers to words used in Clause 3 of the Bill relating to offences by corporations. Here there may be legal arguments and questions about the use of words, but when one looks in a common sense way at the meaning of the words in the Bill it seems to me that some qualification should be made on the use of the word "neglect". The Bill states, at line 13 on page 3, …or was attributable to any neglect on the part of, any director, manager, secretary or other officer of the body". Neglect can be accidental, it can be due to lack of proper attention, it can be due to pressure of work or it can be due to being distracted at a crucial moment in the handling of certain matters. Therefore, I want to provide that if any charge is to be made on the neglect of an officer of a corporate body—and that is what we arc talking about—we should understand that it is a form of culpable neglect.

Most of the revenue laws refer to "wilful default" and if the word "neglect" is used it is in connection with wilful default. But here the Bill refers to, …the consent or connivance of, or was attributable to any neglect". I do not like the words "any neglect", and therefore I propose to insert the words "wilful negligence". Surely, in a matter of this kind, if a person is to be charged, there should be some evil in his mind at the particular time; or, if there was no evil in his mind, there should be some culpable indifference to what was happening, either on his own act or on the act of someone else. I am trying to lessen what I think are the absurdities of this Bill. I believe that the whole Bill is a nonsense, as I have said before, and I want to take out of it some of the most objectionable features. This may be a small point, but it could in certain circumstances be important. My Lords, I beg to move.

Lord MONSON

My Lords, it seems to me that the noble Lord, Lord Houghton, has made out a good case for this Amendment, as indeed he did for one or two Amendments at earlier stages of this Bill. Therefore, I should like to support him in this Amendment.

Lord HARRIS of GREENWICH

My Lords, I have an ugly suspicion that I shall not satisfy my noble friend Lord Houghton, who said on the last occasion I am sure in the most amiable of spirits, that it is the duty of Home Office Ministers to brush aside their briefs and make what I think he described as a common sense decision, or something of that kind. He said that it was incumbent upon Ministers to do that. I should be slightly surprised if my noble friend, in his very distinguished periods in office as a Minister, took a similar view, because if he had done so we should have on the Statute Book a whole series of provisions of a kind which was embodied in the last Amendment, and which would have absolutely no statutory effect whatever.

As regards the Amendment, I have to say that Clause 3 and this provision is common to a great deal of our Statute Law. It is a provision which we in this House approve in new legislation several times a year, and which has been in use for very many years indeed. But that is certainly no reason why we should not, from time to time, examine more closely what it is that we are doing, and my noble friend Lord Houghton has raised the kind of issue which it is right to look at with some degree of care.

The purpose of the clause is to place some personal liability on those who are responsible for the conduct of companies. The principle is well established and gives rise to no controversy; in the context of the present Bill, not to include such a provision might lead to the situation where a person trading in child pornography was able to hide behind the facade of a limited company. So, although the company he owned could be fined, the evidence linking the individual with the offence was insufficient to warrant his being charged as a principal and being liable to be imprisoned.

The Amendment which has been moved by my noble friend substitutes the test of wilful negligence for that of neglect. I think it would be helpful if I said a little more about what will constitute an offence under the existing Bill. This is not a case where we are seeking to say that it will be an offence if a particular act is neglected to be done. That is not the point at issue. We are dealing with a case where an offence under the Bill has been committed by a company and where the commission of the offence was due to the act or default of an officer of that company. This does not mean that every officer of a company is expected so to act as to ensure that no offence is ever committed by the company; rather, the prosecution has to prove that an individual neglected what were properly his duties as an officer of the company and that, as a result of that neglect, an offence under the Act was committed.

Given the kind of offences which are created by the Bill, it does not seem unreasonable that the responsible officers of a company should be required to ensure that such offences are not committed. If the law places such a duty on them, then again it does not seem unreasonable to say to them that they will incur personal liability if they neglect it. To make the test one of wilful negligence instead tilts the balance in favour of the accused person in what I think is an undesirable way. I doubt whether it is right to allow a director to admit that his company sold child pornography because he neglected to prevent it, but to plead nevertheless that his negligence was not wilful.

I made it clear at the beginning of what I have said that Clause 3 is in the form of the standard provision of offences by corporations. The standard form penalises officers to whose "neglect" an offence was attributable and, for the reasons I have already given, I think it would be wrong to depart from the standard form in the present Bill.

Baroness GAITSKELL

My Lords, may I ask my noble friend the Minister whether I heard him say "the offences created under this Bill"? This seems to me to be a very astonishing sentence.

Lord HARRIS of GREENWICH

My Lords, in other words, the offences which are created when the Bill is on the Statute Book.

Lord HOUGHTON of SOWERBY

My Lords, I do not believe that this country should be governed entirely by precedent or standard form. The duplication of standard forms into laws generally may ignore the particular nature of the offences with which Bills are dealing. My noble friend—I still call him that—

Several noble Lords

Hear, hear!

Lord HOUGHTON of SOWERBY

—explained the meaning of the words "any neglect". But why cannot neglect of duty, or default, be included here? It seems to me that in the context of this Bill the use of the standard form gives the impression that the Bill is more vicious than it is—and it is rather bad, anyway. In dealing with an offence of this kind—of a particular, peculiar and complex nature—I believe that one should spell out a little more intelligently and helpfully what one means. The English language is not so poor in its flexibility and its alternative use of words that we cannot define more clearly that "any neglect" does not mean "any neglect", but that it means some kinds of neglect—some neglect which has culpability in it through neglect of duty, which can be serious, or default in fulfilling a particular obligation.

I am not a lawyer, but I think I can see the sense of what I am driving at here. However, it is common form. Nobody thinks again; somebody stuck it there a long time ago; probably it relates to company law; certainly it does not relate to income tax. And so we go on and on. Surely, the day will come when this kind of procedure will be received with the impatience with which I receive it now. I am usually long ahead of my time. I believe that one day Parliament will not be prepared to put up with this method of legislation. It will want to impose upon our legislative language and system the clear intentions of what the community wishes to do.

I am not prepared, therefore, to withdraw the Amendment, because I do not accept all the arguments which my noble friend uses. If any further thought is to be given to this matter, let it be given in another place, but I certainly do not believe that these words should be left in the Bill.

On Question, Amendment negatived.

Clause 9 [Short title, extent and commencement]:

Lord HARRIS of GREENWICH moved Amendment No. 4: Page 6, line 6, at beginning insert ("Section 8 of this Act shall come into force forthwith, but otherwise").

The noble Lord said: My Lords, this Amendment is designed to save time in applying the provisions of the Bill in Northern Ireland. As the Bill is presently drafted, its commencement is delayed for one month after Royal Assent, but the effect of applying that rule to Clause 8 is that no steps can be taken during that month to make an Order in Council under the procedure there laid down. We therefore propose by this Amendment bringing Clause 8 into force immediately the Bill is passed so that it should be possible without delay to put arrangements in hand for these provisions to be applied in Northern Ireland, so that they can come into force in Northern Ireland as soon as possible after they have been brought into effect in England and Wales. I beg to move.

On Question, Amendment agreed to.

4.38 p.m.

Baroness FAITHFULL

My Lords, I beg to move that the Bill do now pass.

Moved, That the Bill do now pass.—(Baroness Faithfull.)

Lord HOUGHTON of SOWERBY

My Lords, I oppose the Motion. Since I expressed criticisms of this Bill during its Second Reading some weeks ago and more recently at the Report stage, I have not received a single letter of disapproval. Although my words, which were severe, were widely broadcast during the radio reporting of the proceedings of this House and have received wide publicity in the Press, not a single letter has come my way from anybody expressing disapproval of the stand I have taken on the Bill. On the contrary; I have received many letters supporting what I am doing.

What I cannot understand is why people should admire what is believed to be my courage. I thought that this House was the House of courage. I thought that this House was that part of Parliament in which we could all speak our minds and utter the truth, as we see it. We are fortunate, in a sense, in not having to trim what we have to say, in not needing to have regard to constituency or sectional opinion. We all know—I do, from 25 years' experience in the House of Commons—what effect strong bodies of local opinion, very often religious and intransigent and some of them malicious, can have upon a Member of Parliament. Here we are free from those contraints. Therefore, I do not believe that to make a stand on this or any other Bill is a matter of courage.

What surprises me is that so few noble Lords have stood up to express a point of view similar to my own. This really astonishes me because, before I came to this House, I thought that this House showed a degree of progressive thought and action which was the envy of many of us in the House of Commons. But a regression seems to have set in and I believe that the proceedings on this Bill are a disgrace to Parliament—literally a disgrace to Parliament. I do not think that this is the way to introduce new crimes with severe penalties into our criminal code.

A noble Lord

Nonsense!

Lord HOUGHTON of SOWERBY

I will not go over the ground that has been gone over before about the way in which this Bill was dealt with in another place and the condition in which it came from another place to your Lordships' House. I believe that behind this Bill there has been a campaign of emotional indignation; people's fears have been aroused, exaggerated statements have been made, tendentious propaganda has been disseminated. Yet it goes on.

I looked at the Young Observer last Sunday and I saw the heading Keep Kids from Porn. It was written by a certain Patricia Hallmey about this Bill and it says: Mr. Cyril Townsend, MP, has recently sponsored a Private Member's Bill to clamp down on child pornography. I was astounded to hear that between the ages of 14 and 16 a child is not officially protected as there arc many loopholes in the present law. According to Mr. Townsend's legal advisers you are not regarded as a child in these two years but as a young person and Mr. Townsend told me about the case of John, a 15 year old boy who was lured into posing for indecent photographs and later blackmailed by the photographer, who threatened to show them to his headmaster. When his parents found out they were very upset. Was the photographer prosecuted? No, he escaped through one of the loopholes of the law. I hope that when this Bill is considered in another place Mr. Cyril Townsend will explain to the House of Commons exactly what this case was. It seems to me that, if a young person is going to be blackmailed by a photographer under the threat of showing a photograph to the headmaster, it would be difficult to know what loopholes in the law exist to escape from the consequences of the act of blackmail. But this seems to relate to the central point of the speeches made in another place by the Minister of State and in your Lordships' House by my noble friend, on the Second Reading of the Bill in the two Houses, when they both referred to the substantial change which could be made to cover the one gap in the existing law by an amendment of the Indecency with Children Act of 1960. My noble friend referred to this and so did the Minister of State in another place.

Is it not astonishing that, to begin with, Government spokesmen, both in another place and in your Lordships,' House, expressed the view that this Bill was not necessary. I shall not go over the grounds of the arguments used by my noble friend in order to satisfy this House that this Bill was not really necessary. He expressed to us the view that existing legislation was adequate to cope with the type of offence that this Bill proposed to deal with, except in the one respect of between ages 14 and 16. Yet the Government have connived for political reasons in foisting this Bill on to Parliament, because I believe they are afraid of the campaign that would be waged against them if the Bill were not passed and they could be accused of having failed to protect the nation's children.

What is being put across in this situation is nothing short of disgraceful. But there we are. I am not reconciled to the passing of this Bill at all. I think it will be a retrograde step and I sincerely hope that we shall get something more rational and more generally acceptable in this whole difficult field when we get the report of the Williams Committee. There is no doubt that the whole law on indecency and obscenity is in a mess, but it is in a mess because of the difficulties of definition. Attempts are made to define what we mean by the use of certain words, and "indecency" is not defined in this Bill any more than "obscenity" is defined in the obscenity laws. It is bound to be a mess and therefore it is bound to be left to the judgment of juries and courts as to what is indecent and what is obscene. We know that there have been some quite surprising results from attempts to get convictions under existing law, and I believe that we may encounter the same problems again.

That is why, in general, I am against laws which try to define what cannot be defined and which are largely a matter of good taste and good sense and an appreciation of the true values of life. That really is where we ought to be doing our work. I believe it can be done: not by repression, not by turning photographers into criminals, not by turning people into criminals if they pass a photograph from one person to another. I believe it will be necessary for some of us to consider whether we should challenge this law to see what indecency amounts to under its obscure provisions.

I have in my hands, as I had before, photographs which probably some noble Lords would think are indecent and which others would think are beautiful. But that is a difference in approach. Some people's minds are like cesspools and they cannot see anything beautiful about some aspects of human behaviour and human form. I know it is no good going on because the minds of most of your Lordships are made up. In those circumstances, I content myself with registering once again my implacable opposition to this Bill.

Lord WIGODER

My Lords, I do not want to re-open the merits of this Bill at this stage, let alone the merits of a large number of other Acts of Parliament. What I should like to do from these Benches is to convey our congratulations to the noble Baroness, Lady Faithfull, for undertaking the passage of this Bill in your Lordships' House and, if I may say so, for introducing it at Second Reading in such sensible and practical terms as to remove most, if not all, of the acrimony from your Lordships' discussions.

Perhaps I may also thank the noble Lord, Lord Harris of Greenwich, for the fact that he has given the most careful consideration in correspondence and in discussion to a number of suggested Amendments and improvements to this Bill. I would hazard the guess that the Bill will reach the Statute Book, and I think it may well be that the measure of its success will be the rarity with which it is used.

4.49 p.m.

Baroness GAITSKELL

My Lords, as my noble friend has challenged his noble friends and I am a friend of his I should like to say a few brief words to him. I do not go with him the whole way, but I do go halfway with him. He may rightly accuse me of cowardice in this matter. I do this for two reasons. One is that if one votes against the Bill, that is so easily misinterpreted. This is something which I do not usually take into account when I am speaking about this kind of Bill. The reason why I will not go along with my noble friend the whole way is because this Bill will perhaps have a modicum of effect towards catching and curbing some pornographers. For that reason, if there is a vote on this Bill I personally will abstain, though I do not like the Bill. I think in some ways it is a dangerous Bill. I think many of the arguments have been exaggerated, and very few figures have been produced about the effects of child pornography. I commend noble Lords to read again a letter printed in The Times newspaper, written by Professor Ivor Mills, Professor of Investigatory Medicine at Cambridge, who had all the arguments, and confounded all the arguments of the other side.

Lord SPENS

My Lords, I realise that one is not allowed to raise a point of order in this House—

A noble Lord

Of course you are!

Lord SPENS

I thank the noble Lord. As a matter of procedure, I wonder whether this Bill has yet received a Third Reading. I came into the Chamber rather late, admittedly, but I was here while Amendments Nos. 3 and 4 were being discussed; and after Amendment No. 4 was agreed the noble Baroness opposite moved. That the Bill do now pass. I do not believe that the Bill has yet received the Third Reading.

4.53 p.m.

Lord HARRIS of GREENWICH

My Lords, I think it has received a Third Reading, and that is why the noble Baroness moved her Motion. Having said that, I think it would be right for me to join with the noble Lord, Lord Wigoder, in congratulating the noble Baroness, Lady Faithfull, who has been responsible for the Bill in this House. It is always a difficult operation in itself to put through a Bill as complex as this, and I should like to associate myself and the Government with what the noble Lord said. At the same time, I would thank my noble friend Lord Houghton of Sowerby, who has asked a series of questions; he has made his position on the matter absolutely clear. Nevertheless, in legislation of this sort, when one is amending criminal law, it is absolutely right that there should be full debate. We have had full debate, and I think that is to some extent due to the Amendments put down by my noble friend.

Lord MONSON

My Lords, as one who has taken part, albeit a very small part, in our deliberations on the Bill, and who, like the noble Lord, Lord Houghton of Sowerby, is very concerned about safeguarding the liberties of the individual, I feel it appropriate to say a few words. My general conclusions about the Bill and about the facts which prompted it lie somewhere between those of the noble Baroness, Lady Faithfull, and those of the noble Lord, Lord Houghton of Sowerby. I cannot agree with the noble Lord that the evils which the Bill seeks to remedy are illusory or insignificant, or that existing legislation is in every circumstance adequate to deal with them. However, I have not been persuaded that these evils are so great and so widespread as to justify legislation being pushed through in a haste which amounts almost to panic. In my experience, such as it is, of Parliament, legislation which is hastily rushed through—that is to say, without adequate time for discussion and, almost as important, adequate time for reflection, between the various stages of the Bill and between the time the Bill leaves one House and reaches another—more often than not turns out to be defective to some extent, frequently in a fairly disastrous manner.

Only the other day the London Evening Standard, which your Lordships will know is a responsible and reputable newspaper, published a charming photograph of a shirtsleeved policeman holding a small naked child by the hand somewhere near the Serpentine in Hyde Park, on one of the very few warm days we have had this summer. In its caption to the photograph, the Standard expressed the fear that this might be the very last occasion on which it could publish such a photograph because this Bill, if it became law, might make it risky to do so. Let us hope that these fears are unfounded and that your Lordships and the Home Office between them have got the Bill right, because, after all, it has been almost entirely rewritten since reaching this House. If it has not been got right, and if it transpires in two or three years' time that individual liberties are menaced in some unforeseen way by some provision of the Bill, the fault will not lie with the noble Baroness, Lady Faithfull (who I know to have been most scrupulous and meticulous, and to have done her very best), nor will it lie with the Home Office, despite their having legal expertise at their fingertips, because even experts need time. The fault will lie with the Government and the Opposition, or perhaps Oppositions, all of whom seem to be falling over themselves to be seen—and "seen" is the operative word—to be assisting to get the Bill on to the Statute Book before the impending General Election. Consideration of short-term Party political advantage, particularly when combined with populist emotionalism, rarely forms a good basis fir sensible and well thought-out legislation.

Baroness FAITHFULL

My Lords, this is a small Bill dealing with one point which may hurt perhaps a few children, but I would submit that a Bill is worth while if it prevents one child being hurt. I must assure your Lordships that in my experience as a social worker children have been hurt. Therefore, I think this Bill is worthy of consideration by your Lordships' House. Having said that, I also believe, with the noble Lord, Lord Houghton, that it is right that the individuals' rights should be safeguarded, but I do not think that is incompatible with compassion or incompatible with setting limits on what can be done by certain people to hurt a few children for gain.

I should like also to thank all Members of your Lordships' House, and, if I may join with the noble Lord, Lord Harris of Greenwich, I should like to thank Lord Houghton for his participation. I would hope that it will be considered that your Lordships' House has taken this Bill seriously, has given it time and has given it thought. I should like to thank the noble Lord, Lord Wigoder, and other noble Lords who have taken part, but in particular Lord Harris of Greenwich, who has done so much work, has co-operated and has carried through this Bill in a very large measure.

The DEPUTY SPEAKER (Lord Alport)

The Question is that this Bill do now pass. As many as are of that opinion will say "Content"; to the contrary, "Not-Content". I think that the "Contents" have it. Clear the Bar.

Tellers for the Not-Contents have not been appointed; pursuant to Standing Order No. 50, a Division, therefore, cannot take place and I declare that the "Contents" have it.

Bill passed, and returned to the Commons.