HL Deb 11 July 1994 vol 556 cc1580-632

Consideration of amendments on Report resumed.

Lord Archer of Sandwell moved Amendment No. 125:

After Clause 82, insert the following new clause:

( "Sexual offences against children outside United Kingdom

  1. .—(1) Any sexual offence committed in any jurisdiction outside the United Kingdom, including the aiding, abetting, counselling or procurement of the commission of such an offence, shall be triable and punishable as if it had been so committed in the United Kingdom if—
    1. (a) the act in question is punishable according to the law of the jurisdiction where it occurred; and
    2. .(b) the act in question is punishable according to the law of the relevant jurisdiction in the United Kingdom; and
    3. (c) the act in question is committed against a child; and
    4. (d) the perpetrator of the act in question is a citizen of the United Kingdom or ordinarily resident in the United Kingdom.
  2. (2) For the purposes of this section. "a child" shall be defined as any human being below the age of 18 years.
  3. (3) In this section, "sexual offence" has the meaning given by section 31(1) of the Criminal Justice Act 1991.
  4. (4) Nothing in this section shall affect the legal principle of double jeopardy.").

The noble and learned Lord said: My Lords, this proposal was debated in Committee. I venture to return to it for two reasons. First, several noble Lords who were not able to be present on the earlier occasion were kind enough to indicate to me their concern on the subject and have encouraged me to raise the matter again. Secondly, I tried to explore some of the matters which, as the noble and learned Lord the Lord Advocate then explained, were in the mind of the Government. I hope that I shall be forgiven, if not positively commended, if I do not repeat this evening everything that I said on the earlier occasion.

The facts of such a foul trade and the sufferings of the children involved are now well known to your Lordships. Following our last debate, I was fortunate to form part of a delegation which discussed the subject with the Minister of State, Mr. Maclean. I believe that we were successful in crystallising what is really in issue between us. As I understand it, it is not disputed by the Government that in a number of cities, principally in Asia, there is a tourist industry patronised by paedophiles from the West. For my part, I would not dispute the fact that the industry is not run exclusively for Western tourists. Of course, there are also local paedophiles. I shall say only that a substantial proportion of those children suffer as a result of people who travel from countries in the West, including this country, and return there afterwards. I suspect—indeed, I shall put it more strongly—I am sure that the Government share our concern in that respect.

I hope that I do not misrepresent the Government in adding that, as I understand it, they do not now seem to place great weight on some of the arguments which they ventilated in the past. In the former debate, the noble and learned Lord the Lord Advocate appeared to suggest that it would be a mistake for countries in the West to attempt to prevent such practices because that would remove the incentive for the countries where the offences take place to address the problem themselves.

If that argument was ever intended seriously, I believe that the Government now accept that it is precisely those in the governments and in the non-governmental organisations in countries like Thailand, Sri Lanka and the Philippines who are most troubled by such traffic and who would be most anxious to deal with the matter locally. They are most insistent that, because of the substantial financial interests involved and the corruption in certain sections of the police and other agencies, they need the help and support of countries in the West. In recognising that, as I understand they do, the Government have provided the answer to the second argument which previously they advanced; that since the authorities in countries where offences take place can apply for extradition we should leave those offences to be dealt with in that way.

Leaving aside the problem with the Philippines, where this country has no extradition arrangements, we do not receive applications for extradition. I ventured to ask the Minister of State how many applications for extradition have been received from countries involved with this kind of offence. Understandably, he was not able to specify figures without notice although he was fair enough to indicate that he did not believe that the figures would transpire to be strikingly high. Perhaps the noble and learned Lord is now in a position to answer that question, although I will understand if he cannot.

I am grateful to the Minister of State for that discussion. I believe that what is now between us is reduced to a single issue. The Government accept that these practices exist. They accept that in consequence children are condemned to be exploited and, in a tragic number of cases, to die of disease, or if not, to die simply of exhaustion. The Government accept, as I understand it, that all the international agencies concerned with the matter, and all the non-governmental organisations which were referred to in our former debate, recommend the acceptance of extra-territorial jurisdiction. They accept that unless action is taken in the West, the problem is unlikely to go away because the countries where the offences take place are not able to deal with them for the reasons that I have mentioned. They accept that this step has already been taken by Sweden, Germany, France and Norway, and that the Australian federal legislature has accepted the principle and is now simply deliberating the details.

The one issue which remains outstanding is that the Government do not believe that it will prove possible to obtain the evidence which will enable prosecutions to be mounted in this country. As I understand it, that is the sole issue which remains between us. I hope I may be forgiven if I confine the remainder of what I have to say to that one question.

In our earlier debate, reference was made to the possibility of this country stationing officials in the cities where these practices are known to exist. That would not entail any serious call on resources. We are concerned at most with some half dozen cities. Of course, they would need the consent of governments locally. They would have no police powers in those jurisdictions. They would need to work with the local enforcement authorities, and they, of course, are not always above corruption. But they would almost certainly have the support of the most senior figures in government there. Corruption, of course, is much more difficult to operate when those on the spot are officials from western countries whose function it is to initiate action. This is a method of operating which this country uses in relation to the obtaining of evidence relating to the international drugs traffic. We have seen a number of prosecutions brought to a successful conclusion on the basis of evidence obtained in that way.

Again, in our earlier debate the noble and learned Lord, Lord Wilberforce—he asked me to explain that he had to leave us at that stage—pointed out that a number of non-governmental organisations have agents with a high degree of expertise working in those cities. They could provide a reliable source of information and evidence. I am sure that the noble and learned Lord would not be surprised to learn that other countries who have legislated for extra-territorial jurisdiction have not been wholly unmindful of the problem which the Government now urge. Since our earlier debate I have been able to undertake some exploration.

One example which was quoted by the noble and learned Lord in our earlier debate is that of Germany, which has similar legislation on the statute book. We were told that proceedings had been brought there, all of which had failed. It transpired that there were, in fact, three cases. Of course, not every prosecution will succeed in any jurisdiction which provides a fair trial. That: was a very small sample and it may be that in any event no significant conclusions could have been drawn from it. However, I ventured to ask the reasons why the prosecutions had failed. The Home Office was not able to give that information. Indeed, it did not seem to be clear from whence the information had come. The Coalition on Child Prostitution and Tourism made inquiries in Germany and it was unable to trace information about any prosecutions there. The German Embassy in London had no knowledge of the subject. It now appears, as I understand it, that the information on the Home Office files came from someone in the British Embassy in Thailand who was not quite clear where he had heard the information but who thought that he recollected hearing it from someone in the German Embassy in Thailand. Unless the noble and learned Lord can shed further light on the matter today there does not appear to be any information from Germany on which your Lordships would wish to place much significance.

The Australian House of Representatives, when considering equivalent legislation, was concerned with precisely this problem. It referred the Bill to its Standing Committee on Legal and Constitutional Affairs. The committee made a number of recommendations, seeking to rectify defects which I do not think are principally part of the proposals before your Lordships. For example, it recommended the removal of a provision that the evidence of a child must be by video link and instead suggested leaving that possibility to the discretion of the court. It has completed its deliberations and in its tabling statement said: The Committee has been concerned to ensure that a Bill which has almost universal political support for its fundamental objective is workable and effective".

The committee further stated: The Committee believes that certain clauses can be successfully redrafted to ensure the Bill is effective and enforceable without abandoning the safeguards that have been traditional elements of the criminal law".

The prosecutions which were anticipated in Norway and in Sweden are now proceeding. In the Swedish case, evidence is being taken in Thailand. That practice is, of course, available to the criminal courts here under Section 23 of the Criminal Justice Act 1988. Of course, evidence in cases of child abuse always presents a difficulty. It is not to be expected that there will be a large number of prosecutions, nor that all those which take place will necessarily be successful. I do not believe that it will require a large number of prosecutions to send a message that this is not an offence which can be practised with impunity.

I do not believe that the difficulties are of the order which the Government suggest. I believe that the possibility of proceedings would have a powerful impact on this industry. In particular, I believe that tour operators would be discouraged from arranging these tours because they would know that there will be those who will be assiduous in bringing them to justice.

Historically, this country has an enviable record in the fight against slavery. Indeed, offences in connection with the slave trade are among those which, if committed by a British subject, may be prosecuted in this country. It would be a tragedy if with that record in respect of adults we were to refuse our help in protecting children. I beg to move.

8.30 p.m.

Lord Blyth

My Lords, I do not often speak in this House, but I speak with a certain knowledge, but not of the Far East. I should like to know what are the possibilities for blackmail in this instance. It is easy to make an accusation against somebody. I could see this developing into a nice little industry.

I support the idea in principle but I would have problems with the age mentioned. In many parts of the world sexual activity begins at a fairly young age and that is accepted. I have no quarrel with the noble Lord in his wish to protect children. Equally, I feel that such a provision would be open to abuse. I do not know what other noble Lords think about that.

Lord Elton

My Lords, it would be strange if nobody were to comment on the manner of the proposal rather than the content. It is unusual for an amendment to be presented, defeated and re-presented in exactly the same terms in successive stages of a Bill. I for one would not want this occasion to pass without saying that it should not be regarded as a precedent. I hope that the numerous Peers who advised the noble and learned Lord, Lord Archer, to do that are here to support him.

Having said that, if it transpires from the Government's answer that the situation has materially changed, there may be an argument in favour of what the noble and learned Lord is doing. I do not wish to present myself as being hostile to his proposition, but I am hostile to the method of asking the House to address the same question twice in successive stages. That is explicitly out of order at Third Reading. It is not out of order at this stage. Therefore, I hope that I shall not be thought curmudgeonly in asking your Lordships to regard it with a little anxiety.

Lord Archer of Sandwell

My Lords, before the noble Lord sits down perhaps he should know that I took careful advice on the matter. I was told that not only was this technically in order but it is regarded as a perfectly proper practice and not necessarily a practice to be discouraged. It depends upon all the circumstances. I was told that in the present circumstances there was no reason to discourage it.

Lord Elton

My Lords, the absence of resonant "hear, hears" when I made my feeble protest suggests that this is an occasion when it could not be discouraged.

The Lord Advocate (Lord Rodger of Earlsferry)

My Lords, for my part I did not feel that it was a matter for adverse comment that the noble and learned Lord, Lord Archer, had raised the matter again. It is a matter upon which I should have thought all Members of the House had profound feelings. We have indeed considered it and voted on it.

As I indicated on the previous occasion, our position is not in any sense one of triumphalism, nor are we at odds with the aim which the noble and learned Lord seeks to achieve. The only area where we part company with the noble and learned Lord is as to whether this is the way in which that aim is best achieved. It is in no happy sense that I repeat that we are not satisfied with the method chosen by the noble and learned Lord. I accept that he speaks on behalf of a large number of organisations which have considered the matter carefully. Nonetheless, we believe that while this has the appearance of a solution it is not an actual solution.

Leaving aside what is the best remedy, nonetheless, as I am sure the noble and learned Lord will accept, this is a problem which is best tackled locally if that is possible. I say that because, besides anything else, according to our best estimates in certain areas and in Thailand in particular the problem is one of child prostitution in which 70 per cent. of the customers of the child prostitutes are local rather than from overseas. We accept that that leaves 30 per cent. from countries which we broadly call the West. Nonetheless, the fact remains that the trade has a great deal of local support. If it is to be stamped out, as I am sure all noble Lords would wish, action must be taken locally.

On the previous occasion we were told the arguments in general. As the House will forgive the noble and learned Lord, Lord Archer, for not going over all the arguments, I am sure that noble Lords will forgive me if I do not go over all the points that were made on that occasion.

It is not altogether clear whether the possibility of prosecutions in this country would give rise to the possibility of blackmail, as my noble friend Lord Blyth suggested. However, I return with no sense of delight to the point that we are not satisfied that prosecutions in this country would work. I do not have figures for the number of extraditions or prosecutions in countries which have accepted jurisdiction. Nonetheless, I can say that our information on the position in Germany came from the German ambassador to Thailand. At a meeting of various Western ambassadors, Thai authorities and others in Bangkok to discuss this problem, the German ambassador indicated that there had been three cases (which I accept is not a large statistical sample but the noble and learned Lord will accept that there will not be a great many cases). In those cases the prosecutions had failed. The reason for that failure had been the lack of evidence from Thailand. We believe that that indicates there is justification for our fear that even if we introduced this provision as a theoretical possibility, in practice it would not prove possible to mount prosecutions in which there was a likelihood of success. I do not need to say to the noble and learned Lord that the likelihood of success is one of the factors which has to be borne in mind in deciding whether to mount a prosecution.

As I said on the previous occasion, we are willing to look at the position and to consider whether experience from elsewhere shows that we are right in the attitude that we have adopted. For the reasons that I have given, at present we are not satisfied that this is the correct way forward. We feel that concentrating on the local situation is better.

The noble and learned Lord, Lord Archer, referred to the position in Australia. The position in Australia is particularly significant because the Australian legal system is more like ours than the others to which he referred. The noble and learned Lord referred to the fact that at present a proposal is going through Parliament in Australia to introduce legislation on broadly similar lines. As he fairly admitted, certain problems are being considered. If experience indicates that that legislation works, we are quite willing to learn from that. We shall keep the position under close surveillance.

However, at present we are not satisfied that the amendment is the correct way forward. We believe that such measures as we indicated on a previous occasion, albeit not the most heroic, are nonetheless the most effective way forward. For that reason, I regret that I am not able to accept the amendment.

Lord Archer of Sandwell

My Lords, the debate has been substantially briefer than that at Committee stage. I was interested in the comments of the noble Lord, Lord Blyth. I would go to the stake with him to ensure that any prosecutions resulted in fair trials. Of course we have to be careful that no injustice results from such legislation. I do not believe that is an issue between us. The countries which have legislated in this respect have had that matter much in mind.

As to what was said by the noble and learned Lord the Lord Advocate, I accept that this trade does not exist entirely on tourism from the West. I believe that a substantial part does. There are those locally who believe that something could be done to put an end to this foul business if they were supported by governments in the West. The noble and learned Lord appeared to suggest that perhaps the issue could be dealt with—I do not believe he said "satisfactorily"—more satisfactorily locally. But we all know that it is not being dealt with for the reasons that have been ventilated in this series of debates. Senior officials in the governments of the countries concerned would like to have our support. But I agree that the issue between us is whether it would be possible to obtain and present the evidence which would enable prosecutions to be launched successfully.

I have the misfortune to disagree with the noble and learned Lord. However, I accept that he and the Government have directed their minds to the question. I do not believe that it is an appropriate moment again to test the opinion of the House. I hope that we can remain in touch. As the noble and learned Lord says, within a fairly short time there will be further evidence which we can all study. On that basis, and for those reasons, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.45 p.m.

Lord Birkett moved Amendment 125A:

After Clause 82, insert the following new clause:

("Criteria for forfeiting exempted status

. After subsection (2) (c) of section 2 of the Video Recordings Act 1984, leave out from ("or is designed") to end of the section and insert—

("(d) Illegal use of drugs;

or is likely to any significant extent to stimulate or encourage anything falling within paragraph (a) or, in the case of criminal behaviour or anything falling within paragraph (b) or (d), is likely to any extent to do so; or is likely, whatever the video work depicts, to cause harm to children or young persons or, through their behaviour, to society.").").

The noble Lord said: My Lords, I have put forward these amendments because there is a curious and rather alarming anomaly in the operation of the Video Recordings Act. When your Lordships were last in Committee upon this section of the Bill, I was, alas, in Zurich on musical duties and could not be present. However, I have read Hansard carefully from cover to cover on that subject. The debate centred around the amendments proposed by the noble Earl, Lord Ferrers, and indeed carried by your Lordships. Those are amendments which I entirely support, and, as vice-president of the British Board of Film Classification shall have to have much regard to in the future. However, the debate centred upon the nature of the certificates issued by the British Board of Film Classification.

The anomaly to which I refer is the large number of videos which are exempt from being classified. The Video Recordings Act states that, a video work is for the purposes of this Act an exempted work if, taken as a whole—(a) it is designed to inform, educate or instruct; (b) it is concerned with sport, religion or music; or (c) it is a video game".

Your Lordships may consider those sensible exclusions because it would be vastly counter-productive for the producers of videos and for the British Board of Film Classification if it were required to certificate the miles of footage which exist on instructions on how to play every known game in sport, on music and on perfectly legitimate education work. Those should be exempt. However, the provision in the Act states that the provision is forfeit only if a work to any significant extent depicts, (a) human sexual activity or acts of force or restraint associated with such activity; (b) mutilation or torture of, or other acts of gross violence towards, animals or humans; and (c) human genital organs or human urinary or excretory functions".

Noble Lords may consider that those are perfectly good reasons why a video should forfeit its exemption.

The problem is that at present there are in existence instructional videos—I cite two examples—which are entirely exempt because they do not contain any of the three factors that I have just read to your Lordships. One is called "Deadly Explosives". The video will instruct one on how to concentrate explosives to blow a hole through armour plating using an empty wine bottle and three wooden stakes; making a hand-held napalm bomb from a lemonade container; and tips on how to blow apart an office colleague with a desk top bomb designed as a toy.

Another example is a martial arts video called "Black Medicine, Vital Targets, Maximum Punishment". The most notable martial arts advisers in this country have said that it is a do-it-yourself cocktail of death. The methods could maim or kill and are extremely dangerous. It cannot be sensible that such videos, instructional though they may claim to be, should circulate freely with an exemption from any necessity to be classified.

I have therefore produced an amendment which, I hope, copes with these issues in three ways. First, it inserts a new section after the three that I have already read which would forfeit exemption. Paragraph (d) refers to the illegal use of drugs. Technically at present one could make an instructional video on how to shoot up heroin or how to make crack cocaine which is entirely exempt from submission to the British Board of Film Classification. I believe that that reference is self-evident.

Secondly, the word "likely" occurs twice in the main paragraph of the amendment, which states, or is likely to any significant extent to stimulate or encourage anything falling within paragraph (a)".

The paragraph later continues, is likely to any extent to do so".

The original Act contains the word "designed". The difference is considerable. The phrase "is likely to" is concerned with the effect of a video. The phrase "is designed" is concerned with the intention of the maker of the video. I hope that your Lordships, and in particular noble and learned Lords, will agree with me that establishing intent is often extremely difficult and nearly always impossible to prove. I believe that we should be concerned with the effect of the video and not with the intentions of its maker. That is the reason why I have altered the word "design" to "likely".

The third and probably the most significant part of the amendment contains the words, or is likely, whatever the video work depicts, to cause harm to children or young persons or, through their behaviour, to society".

It will not be lost on your Lordships that I have used the exact words of the noble Earl's amendment with reference to the issues which the British Board of Film Classification or any other designated body must consider when granting certificates. It seems an entirely sensible form of words and to bear repetition in this amendment.

So on those three points I think that we could easily clear up what I regard as a rather monstrous loophole. Let me emphasise to your Lordships that this is not intended to bring in another great wodge of video material for us to classify. It is only to prevent the cynical exploitation of the Video Recordings Act by cynical and exploitative video makers.

I should also explain Amendment No. 125B to which I am expected to speak. This is a totally different and rather innocent matter. It refers to a section of the Video Recordings Act 1984 about the "U" certificate—the "universally acceptable" films. I have added "or young children" after the words: particular suitability of the work for viewing by children".

That is for the simple reason that there is a certificate called "Uc", which at the moment is described as especially suitable for viewing by children. It is intended to be especially suitable for viewing by young children; in fact, toddlers. It is meant to be a help to mothers in sorting through the immense amount of "U" certificates who may not easily distinguish what is good for toddlers. It works the other way round, too, because any parents with a bright 11 year-old who in innocence brings home a work described as especially suitable for children could be dismayed to find, as would the 11 year-old, that it was a "sing along with mother" nursery rhyme video.

The whole point of "Uc" is to help mothers with toddlers. Unless we can put the words "young children" on it, our helpfulness is rather set at nought. I hope that your Lordships will agree that it is an entirely sensible amendment. The main drift of the proposal is contained in Amendment No. 125A and I hope that noble Lords and the Government will agree that it is a sensible and helpful provision to stop a really dreadful trade. I beg to move.

Lord Merlyn-Rees

My Lords, I support the clear and succinct explanation of the two amendments put forward by the noble Lord, Lord Birkett. I do so because of the clarity with which he expressed his proposal and because I have received representations from the NSPCC. It explains in one short paragraph that the new clause is intended to ensure that certain videos at present exempted under the Video Recordings Act are made subject to classification.

The NSPCC made available to me and, I am sure, to the noble Lord, Lord Birkett, with his background in the British Board of Film Classification, a description of what goes on. It states that, from a cramped one-bedroom flat on the suburban lip of north Birmingham, Europe is being instructed in the use of C4 explosives; how to kill with a single blow; and how to pick locks with the finesse of a cat burglar. It mentions a deactivated AK47 Russian assault rifle, and so on. I shall go no further on that because the noble Lord is right and I hope that the Government will look at the amendments sympathetically.

I am also chairman of the Video Standards Council, which informs me that it has not been consulted on the matter. It raises one issue, which I hope is not the case. The suggestion is that there is a problem under the two amendments that current affairs videos showing what goes on in Bosnia and Rwanda will have to be classified on the grounds that current affairs could affect young children. I hope that that is not the case and that the Minister will reply positively to the two amendments and that that aspect will be looked at.

For example, I was advised that the Second World War film made by Jeremy Isaacs some years ago—some noble Lords may remember that it was first class— might be affected by the amendments. I hope not, but I strongly support the noble Lord, Lord Birkett.

Lord Birkett

My Lords, before the noble Lord sits down, perhaps he will allow me to reassure him that of course my amendment is in no way intended to catch current affairs programmes such as he mentioned. Indeed, it would be an intolerable burden for us if that weight of material were to fall under this amendment. However, although the word "documentary" is usually used in connection with the entirely proper making of current affairs films, there are occasional exploitation videos which simply use the bloodiest and most unpleasant incidents of modern life—

Earl Ferrers

My Lords, I wonder whether the noble Lord, Lord Birkett, is in error. The noble Lord, Lord Merlyn-Rees, had sat down and the noble Lord, Lord Birkett, seems to be making a second speech when he should only make one.

Lord Birkett

My Lords, I acknowledge my error. Obviously the noble Lord had sat down but I think I have said enough to reassure him.

Lord McIntosh of Haringey

No, my Lords, I am afraid not. What the noble Lord, Lord Birkett, said in response to my noble friend was that the amendment is intended not to cover current affairs. Looking at the wording and referring back to the Video Recordings Act —of which I remember every word with painful clarity, after 11 years!—it seems to me that the amendment would refer to current affairs. It moves away from the intention which we were discussing before the break to the issue of what is likely and the content of the recording.

What worries me about Amendment No. 125A is, first, the moving away from the intention and, secondly, the application on a broad scale to all videos of the new criterion of whether it can cause harm to children or young persons. Surely, it should not be our intention in classifying videos that all videos should be classified on the basis of what could happen to young people. There must be a different standard for adults from young people. With Amendment No. 125B I have no quarrel at all.

Earl Ferrers

My Lords, I sympathise with the aims behind the two amendments of the noble Lord, Lord Birkett. They are, on the one hand, to protect children from unsuitable or harmful material which may be contained in some videos which are currently exempt from classification and, on the other hand, to enable the British Board of Film Classification effectively to draw attention to those videos which are particularly suitable for young children.

It would certainly be wrong if a factual video were exempt from all controls regardless of its contents. One need only think of the various sex education videos which have become popular in recent years. Those kinds or videos are clearly suitable for an adult audience only and they should not be available to children without restrictions.

The noble Lord, Lord Birkett, reminded us of what the 1984 Act says about exemptions and the exclusion of exemptions. The criteria for excluding exemptions are in some ways similar to the criteria which the British Board of Film Classification will, under Clause 84, have to use in making its classification decisions. However, there is an important difference between them. Unlike the classification criteria, the exemption criteria are not simply a guide to the exercise of the British Board of Film Classification's discretion. The exemption criteria are intended to determine on an objective basis, for the purposes of the criminal law, whether a particular video is in fact exempt from controls or whether it ought to have been submitted for classification.

If an unclassified video is not exempt, then those who are supplying it or who are possessing it for supply are guilty of an offence and, under Clause 83, they will be liable to two years' imprisonment and an unlimited fine if they are convicted in the Crown Court or to a £20,000 fine and six months' imprisonment if they are convicted in a magistrates' court.

It is, therefore, important that those who produce or supply videos should be able to tell clearly whether or not a particular video is exempt and it is important that they should not be liable to criminal penalties simply on the basis that in someone's subjective opinion a video was unsuitable for exemption and ought to have been classified.

The existing exemption criteria relate, therefore, to what are essentially matters of fact. If a video depicts sexual activity or torture or genitalia to a significant extent, there will not be much doubt about the matter. The depiction of illegal drug use probably falls into that category as well. It is rather more difficult, though, when we come to the question of whether a video work is likely to stimulate or encourage the commission of crime, or whether it is likely to cause harm to children and young people. Those are subjects about which there will often be room for debate. That does not matter when these criteria are used in the classification criteria. The purpose of the classification criteria is to lay down questions which the British Board of Film Classification must consider before it reaches its decisions, and about which it is expected to exercise its discretion. But it matters much more in the criminal law context, where the question is not how a particular video should be classified, but whether a person is guilty of supplying an unclassified video work which, as a matter of law, was not exempt.

On the other hand, I am conscious that there are now video works available—educational videos which show people how to make explosives, or pop videos which may portray drug use, for example—which I for one would certainly not want children to see and yet which may be exempt under our present controls.

Bearing in mind the fact that the Video Recordings Act 1984 provides a defence for those who can show that they supplied unclassified videos in good faith, believing on reasonable grounds that they were exempt, on the whole 1 think that it would be right to strengthen the law along the lines which the noble Lord, Lord Birkett, suggests, if that is possible.

There are, however, concerns about the drafting of the noble Lord's amendments, particularly the first, which is rather complex and is also, it seems to me, at least potentially ambiguous. For example, there is concern as to whether the reference to "criminal behaviour" refers just to criminal sexual behaviour or to any criminal behaviour, which it obviously ought to do. I think that it may also be possible to draft amended exemption criteria in a more felicitous way.

If the noble Lord is prepared to withdraw his amendments I will undertake to consider whether there is a more satisfactory way of trying to achieve his objectives. If there is, I will try to bring back some suitable amendment at Third Reading.

9 p.m.

Lord Birkett

My Lords, I am very much obliged to the noble Earl for his consideration of the matter. I recognise that the words that I have used are in two quite different contexts: first, in the context of the noble Earl's original amendment which applies to the British Board of Film Classification; and here, obviously, they would apply to the courts when testing whether an exemption was justified or not. I see that distinction. I understand the difficulties that the noble Earl has put forward, and indeed those that were put forward by the noble Lord, Lord McIntosh. To the noble Lord, Lord McIntosh, I can say that in my draft—however it comes back at Third Reading—the word "harm" is the important one. It would take quite a lot, I imagine, to persuade a court that harm was involved. So the average run of documentaries, which is not intended to be caught by such an amendment, would be all right. But I leave that to the draftsmen whom the noble Earl will invoke. I am much obliged to him, and I shall look forward to the Third Reading debate. I beg leave now to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Birkett had given notice of his intention to move Amendment No. 125B:

After Clause 82, insert the following new clause:

("Classification of videos: young children

. In subsection (2) (a) of section 7 of the Video Recordings Act 1984, after the words ("particular suitability of the work for viewing by children") insert the words ("or young children").").

The noble Lord said: My Lords, I spoke to Amendment No. 125B. I do not know whether the noble Earl would like to take that amendment away and bring it back at Third Reading, or whether he is inclined to accept it. Either way, I should be entirely happy.

Earl Ferrers

My Lords, I was only about to say that, as I thought that Amendment No. 125B was included with the last amendment, I shall certainly consider it as well.

[Amendment No. 125B not moved.]

Lord Elton moved Amendment No. 126:

After Clause 84, insert the following new clause:

("Video Recordings: Review of classification

. After section 4 of the Video Recordings Act 1984 there shall be inserted the following section:—

"Review of classification

4B.—(1) At any time within a period of six months from a specified date any member of the public may refer to a Member of the House of Commons any video work in respect of which a classification certificate has been issued and give reasons why, in the opinion of that person, either—

  1. (a) no classification certificate should continue in force in respect of that video work; or
  2. (b) a classification should be issued of a description different from that of an existing certificate.

(2) A Member of the House of Commons to whom a video work has been referred under subsection (1) above may at any time within a period of nine months from the specified date request the designated authority to review that video work.

(3) Within twelve months from the specified date them designated authority shall, subject to subsection (4) below, make a determination as to (he suitability of the video work in question (in this section called a 'new determination') as if no previous determination had been made in respect of it.

(4) Where a new determination would not result in the issue of a classification certificate of the same description as that of an existing certificate, the latter certificate shall continue in force for a period of three months following the date of the new determination, and shall then cease to have effect.

(5) In this section—

specified date" means such date as the Secretary of State may by order appoint.

suitability" has the same meaning as it has for the purposes of section 4A of this Act.

(6) The power to make an order under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Lord said: My Lords, in Committee my noble friend did a great service in bringing forward a group of amendments of which the first was Amendment No. 142C. The effect of the group was to raise considerably the penalties for breaches of the legislation controlling video recordings and to raise the criteria against which the board makes its considerations when granting or refusing certificates.

In introducing that group of amendments my noble friend referred to the effect of violent videos on the behaviour of children, who are impressionable, and also to their effect as regards providing models of bad behaviour for adults. He referred to the judgment of Mr. Justice Morland which also suggested that exposure to unsuitable videos might have accounted, at least in part, for the behaviour of the two boys, Thompson and Venables, who murdered James Bulger.

The video which may have prompted that murder is one of the horses that bolted some time ago from the stable. It is ironical that the coming into effect of the resulting legislation will have no effect on that video and others like it. In the course of the debate on that group of amendments I raised the question of retrospective application for certificates with my noble friend, and said that I believed that the public would expect to be protected from the effects of "Child's Play 3" after our work today, since that is what precipitated the amendments in the first place. My noble friend's reference to that suggestion in his closing speech was that his right honourable friend had considerable sympathy with that point of view. He said that he had considered the matter very carefully and took the view that a system involving retrospection simply could not be made to work very well.

I am not sure that noble Lords should be content with that view. This is a grave matter. There is a very large amount of material already in circulation which is certainly not acceptable under the new criteria and which causes a great deal of anxiety to members of the public, and indeed to Members of both Houses.

The Care Trust is an organisation that has given careful thought to this particular issue. It has come forward with a drafting amendment which I have seen and tabled, and which I put before your Lordships now. It is an approach to the problem which I understand is under consideration by the Select Committee on Home Affairs in another place. The indications are that the committee is favourably impressed by it, although we shall not know for certain until its report is published the day after tomorrow.

The difficulty is to discover a mechanism by which it may be possible to select from the enormous number of videos now in proper circulation those which deserve to be reviewed and to ensure that there is not a flood of irrelevant material put before the board. I understand that the board itself is content to face such work if it is in reasonable quantity.

The model that suggested itself is quite a good one. It is the model of the Parliamentary Commissioner for Administration, otherwise known as the ombudsman, to whom the route is through Members of Parliament. It is suggested that the numbers should be limited by that being the only route whereby a proposal for reclassification or declassification can be made, and made only within a limited period of time. Amendment No. 126 sets that out in detail.

The proposal is that there should be a date by which, during a period of 18 months, that process could be completed and that any video whose certificate was removed or changed would, after a further period, be in the classification or be unclassified as the board may have decided; that during that interval the industry could re-label or withdraw a video from the shelves; and that thereafter the penalties described in the Bill should apply to the improper sale of that kind of material, as it would have done had it been given the new classification or refused classification from the beginning.

I commend the amendment to your Lordships. I feel that it would be absurd to go to the lengths of providing for the protection of young people and others from the kind of material that my noble friend described in Committee and to allow to escape scot-free the material which caused us to do that because it was so awful. I beg to move.

Lord McIntosh of Haringey

My Lords, no doubt this is a beautifully drafted amendment but it fills me with horror. The noble Baroness, Lady Gardner of Parkes, and I were members of the film viewing board on the Greater London Council. The noble Lord, Lord Birkett, as the director of the arts and recreation, was the chief officer (I am not sure whether or not it was in his time) responsible for these matters.

Members of the other place presumably would have to watch such videos. Otherwise they could hardly pass on to the British Board of Film Classification the observations of a constituent or anybody else. There is no restriction on who it is because any member of the public can ask any Member of the other place to require a reclassification by the British Board of Film Classification. The mind boggles at the implications of the amendment. It would be totally irresponsible for Members of another place to pass on such a view from any member of the public without having himself viewed the video. In the interests of comity between the two Houses, I suggest that the amendment should be rejected.

Lord Ashbourne

My Lords, I put my name to the amendment and I am grateful to the House for permitting me to say a few words in support of my noble friend. At Second Reading of the Bill I said that I had always had a particular concern about the impact of the media, especially on children. I believe that a diet of violent material can encourage children to imitate violence or participate early in criminal activity. Therefore I was delighted to see that the Government have tackled the issue of stricter classification of videos.

However, it perplexes me that the Government seem happy to allow videos such as "Child's Play 3" to continue to circulate unimpeded. I believe that there are many members of the public who expect videos such as "Child's Play 3" to be removed from the shelves of video outlets once this legislation comes into force. They will be shocked and confused if they find that those videos are still there. That is why I totally support the amendment moved by my noble friend Lord Elton.

I am sure that your Lordships will agree that for the Government to take such strong action on videos—I welcome such action—suggests to the public that there are in existence works which are having a serious negative effect on our society and especially on our children. If such works do not exist, why have we acted? If such works are currently on sale in the high street and available for hire from local video shops, why do the Government propose to let them continue to circulate without their classification even being reviewed when they propose to restrict similar new material? It would be neither practical nor profitable to view every single video classified. But it seems paradoxical and somewhat irresponsible not to tackle the worst of the material already commercially available. Clearly we cannot have any impact on those videos already in the home; but we can stop more being purchased or hired and remind parents of the dangers of some of those works.

Perhaps I can remind your Lordships that I proposed this matter over 10 years ago when I made my maiden speech on the Video Recordings Bill (as it was) later to become the Video Recordings Act 1984. I quote myself rarely in your Lordships' House because normally I do not feel that I am worth quoting. But on this occasion I shall make an exception because it is not often that I have had the savvy to be able to look with amazing accuracy more than 10 years ahead. Your Lordships may like to consider that point and see whether the Government have similar vision. I asked, "What are the shortcomings?"—referring to the Video Recordings Bill. I continued, First, inadequate controls. The Bill provides a category system to regulate the supply of video material but it fails to provide any teeth after the initial point of supply. Indeed, after sale or hire any material may be viewed by or exhibited to persons of any age with impunity. The claim that the Bill provides effective protection for children from corrupting video material is regrettably not true".—[Official Report, 2/4/84; col. 525.] A time limited, selective, retrospective scheme seems to be the most efficient way of reviewing the videos that have caused such public anxiety. I urge your Lordships to support Amendment No. 126.

9.15 p.m.

Lord Birkett

My Lords, I regard with the greatest suspicion any amendment designed to make retrospec-tion in the matter effective. Before I start on the main amendment it is worth saying something in relation to "Child's Play 3". That is a video frequently referred to. I take it from the fact that it was referred to by the noble Lords, Lord Elton and Lord Ashbourne, that they have both seen it. If not, then their references are probably a little irresponsible.

I have seen the video; I have taken the greatest care to see it. Let me say at once that the connection the film is supposed to have with the James Bulger case is absolutely not shown to be true. That is a connection provided by the press and not by the police who took some evidence on the matter. In the Committee stage of the Bill the noble Earl, Lord Ferrers, referred to the police reports on three different cases and three different films that were involved. There is no evidence that there was any connection.

I can well understand the anxiety in relation to the film. Although I hold no brief for it, it is quite a scary film. But it is in no way an example to anybody. It is a film about a mechanical doll which is inhabited by the malevolent spirit of some creature from the past, and it creates mayhem. It is a working model, a little doll. I shall not bore your Lordships with the plot in detail. The action takes place in an American military academy. The malevolent little doll changes blank ammunition to live ammunition with the results that your Lordships can predict. I doubt that it can be used as an example of a really evil film which should be removed from the shelves. Its reputation was entirely misplaced through the press.

However, one film is obviously not the point of the amendment. Nevertheless, with around 30,000 videos not merely on the shelves and available for hire but in many cases bought and in the libraries of people at home, any attempt at a retrospective re-examination of certificates, even if it is channelled by Members of another place, seems to me to be unworkable and I cannot welcome it.

Lord Merlyn-Rees

My Lords, the case against the new clause was made clearly by the noble Lord, Lord Birkett. That also would be the view of the Video Standards Council, not only in relation to the overall aspect of retrospection, but also the point that has just been made that should any cassette be reclassified, those existing copies in private homes would be retrospective-ly illegal. The whole concept is misconceived and I hope that the Government will not accept it.

One point about which I feel I have a right to say something as it is not so long since I was there, is the idea that Members of Parliament should play a part in the matter; that the House of Commons should play a part. Of all the things that I have missed in the past two years, apart from the joy of being here, my work as a Member of Parliament ranks highly. My loyalty was of course to the political party which I first joined in 1937. But my loyalty was to my constituency, not just to the constituency party once a month, but to the doctors, teachers and people I met in the clubs and churches. The job of a Member of Parliament is a real one. The independence of Members of Parliament arises out of that.

I was once asked to advise the Israeli Government. They always wanted to change their one-constituency proportional representation system whereby you were elected by all the electors in the area and there is no constituency representation. They would dearly love to get out of that situation. I understand it. A Member of Parliament does not have a loyalty to his constituency, but the right, in the best relationship, to use his own judgment.

How does a Member of Parliament use his judgment about a video that comes along? He has to look at it. He says, "No", I am not prepared to do this. There are many different views down the other end of the corridor".

I learnt one thing in Northern Ireland. I found that, with seven Assembly members for each constituency under proportional representation, on an issue they all wrote to the Secretary of State. When that ended I found, through the system in Northern Ireland, that Catholics would not write to a Protestant Member of Parliament. Very foolishly, I said that if the person had written from outside the constituency, they had to write to the Member who legally represented them. I soon found that was not tenable. On both sides they all agreed that Catholic Members would take from Catholics from whatever part of the Province and Protestant Members would take from Protestants from any part of the Province. There is not the same constituency representation as there is here. I only offer that example to show that it is not a straightforward situation.

This new clause is flawed basically because the noble Lord does not understand the nature of a Member of Parliament. To ask a Member of Parliament to carry out this task is misconceived and for that reason alone I hope that the Government will reject it.

Earl Ferrers

My Lords, I was grateful to my noble friend Lord Elton for explaining his amendment and how it would apply the new classification criteria retrospectively to selected videos. I know that many people will share my noble friend's anxieties. Indeed, my right honourable friend the Home Secretary has already written to my noble friend expressing his own instinctive sympathy with the idea that we should now enable the British Board of Film Classification to look again at some of the works which have already been classified in order to try to apply the new classification criteria to them.

However, as my right honourable friend also explained, he has concluded that a system of retrospection—even of partial retrospection—could not be made to work in practice, and that it would tend to undermine the classification system. My noble friend's amendment prescribes a mechanism by which works might be selected for review. Members of the public would have a period of six months, from a date to be specified by order, during which they could refer works to Members of another place. That has received scant shrift from the noble Lord, Lord Merlyn-Rees. According to my noble friend Lord Elton, they would then have a further three months in which to decide whether themselves to refer the video works in question back to the British Board of Film Classification for reconsideration.

The British Board of Film Classification would have to reconsider all the works which were referred back to it within 12 months of the original specified date. If a work were reclassified, or if it were refused classification, the old classification would stand for a transitional period of three months.

This procedure would deal with some of the problems which are posed by a system of retrospection. It would mean that the British Board of Film Classification did not have to review each of the 25,000 or so works which it has already classified. The noble Lord, Lord Birkett, said that there were 30,000. Whether the figure is 25,000 or 30,000, there are several of them. It would allow retrospection only for a limited period, and it would place some limit on the numbers of works to be re-examined by using Members of Parliament as a sort of filtering mechanism. Of course, we have no idea how many works would be referred back, so there could still be a very considerable burden on the British Board of Film Classification.

I have some doubts also about the proposal to involve Members of Parliament directly in the censorship process in that way. The noble Lord, Lord Merlyn-Rees, considered that they would be wholly inappropriate and I can understand the reasons why. My noble friend will be a brave fellow if he follows that hare down that route.

However, while the amendment provides a mechan-ism for dealing with some of the practical aspects of re-examining classified works, it seems to me that it does not address the fundamental difficulties, which are the uncertainty which retrospection would introduce into the classification system and the impossibility, in practice, of removing from circulation copies of a work which has been reclassified or which has been technically withdrawn.

Once a video work has been classified and once copies are in circulation there is, in practice, no way of recalling them. The most which could be done would be to withdraw copies from the shelves of the larger and more responsible shops and to prevent unauthorised new copies from reaching the market. Copies which are already in people's homes would stay there, while copies which were circulating in private hands or through small corner shops, car boot sales and so forth would continue to circulate.

In the vast majority of cases it would not be possible successfully to prosecute those who are supplying copies of a withdrawn, reclassified or re-cut work, because they would rightly say that they were supplying a work which had every appearance of being a legally classified work and which had indeed been legally classified; and that they had therefore supplied it in good faith, having no reason to suppose that the classification had been withdrawn. This would be a complete defence to any prosecution. Selective retrospection would in fact mean that no one could be sure from day to day whether a given work still retained its legal classification, or whether it had been the subject of a complaint and was being reconsidered.

The period of three months during which the old classification would still be valid under the amendment might at best defer the problem for three months, but it could also add to the confusion as it would mean that the same work could simultaneously be supplied under two different legal classifications. Once it was decided that a work should be reclassified, the amendment allows for it to continue to be sold for three months. This would mean that the same work could legally be sold under two different categories: the old one, which would be considered wrong, and the new one. This would reduce the entire classification system to chaos, making past BBFC classifications unreliable as a guide to the actual legal status of the videos concerned.

As a total aside, I well remember some 25 years ago the terrible hoo-ha about Lady Chatterley's Lover. It was supposed to be a most improper book and I wondered what on earth it contained, so I looked around and found a copy. I am bound to say that I read it from cover to cover and could not see what was wrong with it. I thought that that was a testimony to my broad-mindedness. It was only when I had read it that I looked at the front cover and saw that it was the expurgated version. I was enthused to find the unexpurgated version and to discover what it was that had been left out. That shows that there are complications when there are two versions of the same thing—

Lord McIntosh of Haringey

My Lords, the Minister must finish the story, please.

Earl Ferrers

; My Lords, I shall finish it. I never got the unexpurgated version and so, in my naivety, I am still at a loss to know what all the fuss was about.

The only point of that little story was to show that there are complications when two versions of the same thing are in circulation at one time. Much of the impetus behind the calls for a retrospective application of the new classification criteria is prompted by the concerns about the video to which the noble Lord, Lord Birkett, and my noble friend Lord Elton referred. The noble Lord asked penetratingly who had seen Child's Play 3 —he did not receive an answer. I have not seen it, so the noble Lord, Lord Birkett, has the advantage of me on that. That video has been cited in the press as having contributed to the horrific murder of James Bulger. As I explained when we last debated this part of the Bill, the police found no evidence that that video was in any way responsible for that terrible crime, or that either of the two murderers had ever seen it. Many of the reports of alleged similarities between the murder and the video bore little or no relation to its actual contents. There is no guarantee that if it were re-examined it would be banned. It is already in the 18 category which is the highest ordinary classification awarded to videos.

It is notorious that hard cases make bad law. We should not be justified in undermining the classification system and incurring all the other difficulties that I have tried to describe just to try to ban one video, especially when there can be no guarantee that the video concerned would be banned and, if it were banned, that we could guarantee that it would be removed from circulation.

My noble friend might say that he was not putting forward the amendment because of one terrible video. I am sure that that is the reason, but for all the reasons that I have given I believe that it would not be appropriate to include the amendment in the Bill, although I have great sympathy with my noble friend's anxieties which stimulated him to put down the amendment. I believe that it would be impossible to go down the retrospection route.

9.30 p.m.

Lord Elton

My Lords, I am much obliged to my noble friend and to those noble Lords who have taken part in this short debate. I hasten to say that the amendment is not an attack upon a particular video work. I readily confess that I have not seen 'Child's Play 3". I have seen many worse things shown to me by the Metropolitan Police, but I have not seen that one. It is the whole category of violent and unsuitable material upon which I believe that it is the function of the board and not your Lordships' House to make a decision.

I see that my position is inconsistent, because in the amendment I am inviting Members of another place to perform that function. The noble Lord, Lord Merlyn-Rees, rightly took me to task for allocating a disagreeable and burdensome duty to Members which, he said, could be foisted on them by people from another constituency. He pointed out that there were circumstances in which that was a good thing, and the noble Lord, Lord McIntosh, equally pointed out that it could be from another constituency, and that that could be a bad thing.

The one thing that the amendment has done is to boggle the mind of the noble Lord, Lord McIntosh, more successfully than any amendment that I have yet moved. We boggled him onto the Treasury Bench here, then onto the Cross Benches, briefly out of the Chamber, and then back to his place. I regard that as a significant achievement. More seriously, I turn to what my noble friend said. He said that the amendment was unacceptable because it was uncertain in its effects; it was incomplete; it was ineffective; and it would lead to a period of confusion.

Those are serious charges. In no way do I hold this up as a model amendment, beautifully, as the noble Lord, Lord McIntosh, said, though it may have been drafted. I hold it up merely to encourage my noble friend and his right honourable friend not to let go entirely of the idea of some retrospective control, however limited, until the report of the Select Committee of another place is available in two days' time. By withdrawing the amendment now, I shall maintain the opportunity for the Government, or others, to put down on Third Reading an amendment which is in tune with whatever that committee may recommend. I am grateful to your Lordships, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Gisborough moved Amendment No. 126A:

After Clause 84, insert the following new clause:

("Offence of supplying sexually explicit still images on computer disc

  1. . —(1) Any person who supplies to a child under the age of 16 data stored on a computer disc, or by other electronic means, which contains a sexually explicit image which is not a moving image shall be guilty of an offence.
  2. (2) Any person who supplies; in the course of a trade or business a computer disc, or data stored by other electronic means, which—
    1. (a) contains a sexually explicit image which is not a moving image, and
    2. (b) is not indelibly and legibly marked with the words "contains sexually explicit material", and
    3. (c) does not incorporate an effective form of copy protection,
  3. (3) An image is sexually explicit for the purposes of this section if it depicts—
    1. (a) human sexual activity or acts of force or restraint associated with such activity;
    2. (b) human genital organs or human urinary or excretory functions;
  4. (4) A person guilty of an offence under this section shall be liable—
    1. (a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both,
    2. (b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding £20,000 or both.").

The noble Lord said: My Lords, there is no doubt that new technologies which have the power to enrich our lives have also a darker side. The incredible access they give us to art, music, information and communication has also the potential to bring pornography into our very homes. New technology increases the number of ways in which pornography can be produced. Digitised images can be created by linking a video camera to a computer or even by merely playing a video tape. Modems enable images to be sent through telephone lines, even across national boundaries, and bulletin boards and electronic libraries can provide a vast source of pornographic images. Existing sex magazines can easily be scanned, creating digitised copies. Indeed, one magazine has already released a compilation on CD ROM, a medium similar to the normal compact disc.

While those increases in the source of pornography are of immense anxiety, there is another equally worrying feature of the technologies. I refer to the potential for a tremendous increase in the distribution of material, with our children particularly vulnerable because of their close association with computers. Perhaps grudgingly, we accept that youngsters obtain access to adult magazines—the so-called "top shelf pornography. However, several factors limit the extent of that. Retailers are usually most responsible and rarely do they knowlingly supply such magazines to youngsters. The nature of such magazines is obvious to see and few youngsters would risk taking one to school. Parents are likely to discover a magazine kept at home, thereby enabling them to exercise some degree of control.

However, computer discs have few such constraints; they are small, cheap and innocuous and parents are unlikely to know how to unlock their secrets. In addition, they can be easily copied and distributed to friends who can then continue the process. Collecting pornographic pictures on disc could easily become a modern-day equivalent of cigarette card collections as images are swapped among school friends.

Top-shelf porn is unlikely to be obscene in a legal sense and the proposed amendment to the Video Recordings Act, while most welcome in enhancing the protection of children, will not apply to still pictures. There is currently no control over the supplying of digitalised top-shelf magazine pictures to youngsters. My amendment seeks to create a sanction for any adult who supplies a sexually-explicit image to a youngster primarily because of the distribution cascade which could be created. That should restrict the access of youngsters, in particular in the short term, while modems and scanners are outside their likely budgets.

There is precedence for specific protection in relation to another medium of particular interest to children; that is, comics. Statute prohibits the sale of comics containing scenes of an objectionable nature if they are likely to be read by children. In addition, specific protection is given to children in relation to the sale of videos. As a result, amendments are proposed to the Video Recordings Act in relation to computer games; that is, to a series of digitalised images. I believe that the same protection is necessary in relation to computer discs and my amendment seeks to achieve that.

The amendment also seeks to support parental control by making the contents of discs much more apparent. There is no doubt that parental awareness of such issues is crucially important in tackling the problem. The amendment should result in a raised awareness of the problem and a greater ability to supervise youngsters whose parents lack the technical knowledge to access discs directly. The schoolyard scenario is not merely likely but inevitable. While I believe that the threat is so overwhelming and that we cannot prevent it materialising, we can, and indeed we must, create an environment where access is reduced and parental control can exercise some restraint on distribution. I beg to move.

Lord Elton

My Lords, I support my noble friend most strongly. Perhaps I may remind your Lordships that we are seeing only the beginning of a considerable revolution in the transmission of information. It will move very fast and the next Bill into which such a measure can be inserted is a long way away. It would be a great pity if we did not take such steps as we can at this early stage.

I speak with hesitation because I realise that the children most at risk from this material are likely to be far more computer literate than I shall ever be. I hope that this House will control material so as to protect them. That is something as regards which we can have an ambition but no certainty. My noble friend Lord Gisborough has seen and is trying to stem a great danger. I hope that my noble friend Lord Ferrers and the Government will try to find a proper way—perhaps this way or perhaps another—of stemming it.

Earl Ferrers

My Lords, I am grateful to my noble friend Lord Gisborough for explaining his anxiety about the possible exposure of children to unsuitable material on computer discs. I am sure that we share that anxiety. Many of your Lordships will have seen the recent surveys estimating that an alarming proportion of schools have problems with the circulation of computer pornography, and that alarming numbers of pupils have seen such material.

However, I am not convinced that my noble friend has set about this problem in the right way. In the first place, it is not the case that the law does not apply to computer discs; it does. Discs which contain moving images constitute video recordings and they are therefore subject to the controls in the Video Recordings Act 1984, which this Bill considerably strengthens. One of the changes made by the Bill will be to extend the definition of a video work to cover moving images which are stored electronically on devices other than discs or tapes, thereby ensuring that the law keeps pace with improving technology. Discs which contain still images are subject to the same controls as books, magazines and other publications—principally the Obscene Publications Act 1959—and are subject also to the Protection of Children Act 1978, which makes it an offence to publish or distribute child pornography.

The Bill also strengthens our controls on obscenity, and particularly on computer pornography by making clear that transmissions between computers are covered by the Obscene Publications Act; by extending the law to cover child pornography, which is manufactured by computer; by making it an imprisonable offence merely to possess child pornography; by increasing the penalties for obscenity offences in Scotland; and by making obscenity and child pornography offences in England and Wales serious arrestable offences.

As your Lordships will recall, Section 2 of the Obscene Publications Act makes it an offence to publish, or possess for publication for gain, any article which, taken as a whole, has a tendency to deprave and corrupt those likely to read, see or hear the matter contained or embodied in it. Because the potential audience is an important part of the offence, a sexually explicit image which might be harmful to children under the age of 16 and what is likely to be seen by them, may be caught by the Act even though the same article would be unlikely to deprave and corrupt adults.

In addition to the criminal offence, Section 3 of the Obscene Publications Act provides a forfeiture procedure under which articles which are believed to be obscene and which are kept for publication for gain may be seized by the police under a magistrates' warrant and brought before the magistrates for forfeiture. Figures on forfeiture are not kept centrally, but from inquiries which have been made of the Metropolitan Police and the Greater Manchester Police, I understand that in 1993 those two forces alone seized 2,619 computer discs.

It is quite clear, then, that computer discs are not outside the law, but there may of course be practical problems in catching those who break the law. That is especially so in cases when those who are circulating the material are schoolboys who are, as my noble friend said, swapping computer discs in the same way as some of your Lordships may have swapped conkers or cigarette cards.

However, I cannot see that my noble friend's amendment gets round that practical problem of enforcement. What it does is to prohibit the supply to children under 16 of sexually explicit still images either on computer disc or supplied by some other electronic means. It also prohibits the commercial supply of such material to adults, unless various requirements are complied with. Of course, what is sexually explicit is not necessarily obscene; what is sexually explicit is, at the same time, narrower than what is obscene, as something can be sexually explicit without being obscene; indeed, it sometimes can be obscene without being sexually explicit.

My noble friend Lord Gisborough has taken the components of his definition of what is sexually explicit from the Video Recordings Act 1984 but, of course, that Act does not ban sexually explicit material. It merely requires it to be classified. The Video Recordings Act 1984 therefore applies to any depiction of human sexual activity or human genitalia. I do not think mat it is necessarily always wrong to provide those under the age of 16 with material which falls into that category. For example, that may be necessary in sex education lessons. Many schools now use computers as teaching aids in various subjects. I believe that it would be odd to provide that it was an offence for them to use illustrations on a computer disk which would have been perfectly legal in a textbook.

We need to consider the difference which is made by the fact that the Video Recordings Act 1984 is concerned with moving images, while my noble friend's amendment is concerned with still images. Moving images of human sexual activity or genitalia will obviously in most cases be film footage of real people. Why people should volunteer to be filmed in that way puts the imagination into overdrive—but they do, and it is clearly right that we should require the results to be classified and if necessary censored.

Still images of sexual activity or genitalia may be photographic images of real people, but they may not. My noble friend's definition is by no means limited to that. As far as I can see, his definition would catch all those paintings of "Leda and the Swan" or "The Rape of Lucrecia", which show sexual activity, and all the other works of art, from Michelangelo's statue of David and his paintings in the Sistine Chapel onwards, which happen to show human genitalia —provided, of course, that the image was on a computer disc or stored by other electronic means. I cannot see why computer discs should be especially singled out for censorship in that way.

I am also concerned by the fact that my noble friend's amendment provides no defence for those who supply computer discs innocently, not knowing the nature of their contents. Also, it is not apparent from looking at a computer disc what it contains. It would seem to be quite possible for someone in all ignorance to pass the wrong disc to a child —perhaps a disc which has been tampered with by someone else. In those cases it would be unjust to convict that person of an offence.

Finally, I notice that it would be an offence under the amendment to supply computer discs which contain still sexually explicit images to adults on a commercial basis, unless the discs were: indelibly marked with a warning and incorporated an effective form of copy protection. I am not an expert on the subject. However, I am not sure that there is really any effective form of copy protection. If there were, I am sure that manufacturers would be only too glad to use it, rather than asking for further protection under copyright legislation. Therefore, the amendment might result in an absolute ban on the provision of sexually explicit computer material which, as I explained, might go a long way further than I imagine my noble friend intended.

I am afraid that I have given a rather lengthy answer to my noble friend's problem. I understand what he is seeking to achieve, but I hope that he will realise why I find it difficult to support his amendment.

9.45 p.m.

Lord Gisborough

My Lords, I am most grateful to my noble friend the Minister for that long explanation which will be most interesting to read in Hansard. I shall, perhaps, return to the matter on Third Reading if I can find a way to get around the traps to which he referred. My noble friend mentioned child pornography. However, it is pornography being supplied to children rather than actual child pornography. I do not think that my noble friend properly covered the question of the marking of discs; in other words, that discs containing pornography should be marked so that at least their contents are known.

Similarly, I do not believe that my noble friend appreciated the fact that such pornography can be passed over by telephone in a fraction of a second from the most unpleasant sources around the world. At any rate, I am most grateful for my noble friend's explanation. I shall take the matter away and reconsider it. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 87 [Amendment of Sexual Offences Act 1956]:

Lord Ponsonby moved Amendment No.l26B:

Leave out Clause 87.

The noble Lord said: My Lords, in moving the above amendment, I shall speak also to Amendments Nos. 137A, 186A to 186D, 197A, 206A and 209B. The amendments are counterparts of those that I tabled in Committee. They have exactly the same intention as the former amendments, but I have had the benefit of some consultation with the Minister's office. As a result, the amendments have been much improved. Perhaps I might take this opportunity to thank the noble Earl for his help. I say that without any prejudice to the comments he may wish to make with regard to these amendments.

The amendments make any case of non-consensual buggery, whether of a woman or of a man, rape. That is the definition which the amendments encompass. I believe this to be an extremely important reform of the law. Before explaining why, I would like to make one thing clear. These are not amendments principally concerned with homosexual sex, nor do they relate directly to the debates we have had about the age of consent. I say that because I believe it is important to be clear that rape is a crime of violence and has nothing to do with what the law on consensual sex should be. It can be committed by a man against a woman or against another man; and the publicly acknowledged sexuality of the perpetrator has no bearing at all on the crime, or on the seriousness with which it should be treated. I believe it is a matter of fact that a substantial number of those who commit rape against another man are in fact heterosexuals.

The original definition of rape was embodied in Section 1 of the Sexual Offences Act 1956 and covered only vaginal intercourse with a woman. This was then amended by the Sexual Offences (Amendment) Act 1976 which most notably gave better protection to the victim because, of course, part of the horror of rape is that victims suffer greatly after the event and the trial itself can exacerbate their suffering.

The amendment relating to marital rape, tabled by the noble Lord, Lord Lester of Herne Hill, at the Committee stage of this Bill, which was accepted by your Lordships, re-enacted the definition of rape in Section 1 of the Sexual Offences Act 1956 in the light of the 1976 Act, but also so as to include rape within marriage. The proposal is to substitute a proposed new Section 1 of the 1956 Act which is why the amendment involves leaving out Clause 87, which was the noble Lord's amendment. My amendment includes all the salient matters in his amendment; therefore, I am not asking your Lordships to go against your earlier decision in Committee. I understand that the noble Lord, Lord Lester, is supportive of my amendments.

The guts of my proposal are simply expressed in my Amendment No. 137A. The proposed new section states: It is an offence for a man to rape a woman or another man. A man commits rape if (a) he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it; and (b) at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it.

The tests in paragraph (b) have been applied by the courts for some years and are well understood, although there have of course been some notorious cases. I suggest that they may be inevitable with crimes of this nature. I seek to extend those tests to other acts of non-consensual intercourse. The maximum penalty for all definitions of rape, whatever the gender of the victim, will therefore be life imprisonment. All the other amendments are consequential on Amendment No. 137A. I beg to move.

Baroness Mallalieu

My Lords, I support these amendments not only for the reasons given by the noble Lord, Lord Ponsonby, but in addition to support Amendment No. 137A which covers an aspect of the law in this area which was the subject of an amendment I tabled in Committee. At that time I sought to extend to the male complainant in a trial involving sexual complaint the same protection which the law currently affords to a woman complainant.

Under the current law in a rape case the complainant may not be cross-examined about her previous sexual history without leave of the judge. That leave in practice is given but when it is clear that the questions to be asked are relevant and necessary to the defence. In effect, that restriction bars questioning of that type which is intended either simply to discredit the witness or to render the witness more readily willing to agree to questioning. Under the present law that restriction only applies to a woman in limited cases of sexual offence involving rape.

The amendment which the noble Lord, Lord Ponsonby, is advancing tonight alters the definition of rape and would therefore extend that protection to male complainants in these circumstances. By extending that definition it consequentially extends that protection now afforded only to women and therefore renders unnecessary the tabling of my earlier amendment tonight. I hope, for that reason and the others that have been advanced, that the Minister will accept the amendments.

Earl Ferrers

My Lords, I undertook, in Committee, to reflect upon the case which the noble Lord, Lord Ponsonby, put then for a re-definition of the offence of rape. I sensed that there was a good deal of support for his amendments. In particular, it is strange that the penalty for non-consensual buggery of a man should be less than that for the rape of a woman. But the benefits of the noble Lord's proposal would extend beyond that; in particular, by giving both male and female victims of non-consensual buggery protection from cross-examination about their sexual history.

I pointed out in Committee that the Government's advice from learned committees which had examined the question in the past had been that the current definition of rape matched a public understanding of what the offence entailed. That is clearly a matter of opinion. The public's understanding may well have changed. Certainly, there has been substantial press coverage of an offence which appears now to be universally called "male rape"—that is, the non-consensual buggery of one man by another man. Other countries have different definitions of rape. It would probably always have surprised many people that non-consensual buggery of a woman was not "rape" in law.

From time to time the Court of Appeal has had to consider the offence of non-consensual buggery in relation both to male and to female victims. It is quite clear that the court has regarded non-consensual buggery of a woman as being at least as serious as rape. It is also clear that, on occasion, the maximum penalty of 10 years for non-consensual buggery of a man has inhibited the court.

I also said in Committee that the Government would not have chosen this Bill as a vehicle for sexual offences law reform. That remains the case as a statement of our preference, but I have some sympathy also with the view that the opportunities to improve the law in this area are few and far between. We should not let the best be the enemy of the good, and we might wait a considerable time to receive a Bill which is devoted entirely to this area of the law. In short, the Government would like to improve the lot of both the male and the female victims of these terrible crimes. On reflection, we see the force of the argument that it is worth doing what can be done quickly.

We have contemplated whether we ought simply to increase the penalty for non-consensual buggery of a male. However, that would confer a maximum penalty of life imprisonment on an offence which only requires, as a matter of fact, an absence of consent. Rape, quite properly, requires that the defendant knew that the victim did not consent but nevertheless went ahead anyway, or was reckless as to whether the victim consented. In any event, we are confident that the noble Lord, Lord Ponsonby, is not pre-empting public opinion in suggesting that rape should be re-defined in this way. It may be that, in fact, he is just giving us the opportunity to catch up with it.

The current law does a disservice to the victims of these very serious crimes. The noble Lord, Lord Ponsonby, has offered us a way of putting that right without diverting this Bill from its principal concerns. I am grateful to him and to the noble Baroness, Lady Mallalieu, for the trouble that they have taken. I am content to accept the amendments.

Lord Ponsonby of Shulbrede

My Lords, I can only say how grateful I am to the noble Earl for his words. He seems to have considered all aspects of my argument. I am very pleased that he has accepted my amendments.

I have one question for the noble Earl. Perhaps he will let me know his intentions for Scotland and Northern Ireland. The noble Earl has said that he is willing to accept my amendment. I commend the amendment to the House.

On Question, amendment agreed to.

10 p.m.

Clause 91 [Contracted out parts of prisons, etc.]:

The Minister of State, Scottish Office (Lord Fraser of Carmyllie) moved Amendment No. 127:

Page 78, line 5, leave out from ("the") to ("by") in line 6 and insert ("provision or running (or the provision and running) by him, or (if the contract so provides) for the running").

The noble and learned Lord said: My Lords, Amendment No. 127 makes explicit the power of the Secretary of State to enter into contracts not only for the running of a prison, but also for the provision of a prison, or for both the provision and its running. This will ensure that plans can be made for the design, construction, management and finance of new prisons.

Amendment No. 129, similar to that introduced in respect of secure training centres, is designed to ensure that after land is leased to a contractor for construction and management of a new prison, possession of the land may be regained where appropriate. This will enable the land, and any buildings on it, to be recovered at the expiry of the contract. That amendment also sets aside provisions concerning restrictions on forfeiture and covenants against assignment, and covers any agricultural land which may be used for prison purposes.

Amendments Nos. 128, 130 and 131 are consequen-tial to Amendments Nos. 127 and 129.

Amendments Nos. 131A to 131G make similar provisions in respect of Scotland.

Amendments Nos. 131B, 131D and 131E are consequential to Amendment No. 131A. Amendments Nos. 131F and 131G are consequential to Amendment No. 131E. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendments Nos. 128 to 130:

Page 78, line 7, leave out from second ("prison") to ("shall") in line 9 and insert:

("(1A) While a contract under this section for the running of a prison or part of a prison is in force—

(a) the prison or part").

Page 78, line 16, at end insert:

Page 78, line 19, leave out ("as respects which such a contract") and insert ("for the running of which a contract under this section").

On Question, amendments agreed to.

Clause 96 [Minor and consequential amendments]:

Lord Fraser of Carmyllie moved Amendment No. 131:

Page 81, line 7, leave out from beginning to ("there") in line 8 and insert:

("(b) in the definitions of "contracted out prison" and contractor", for the words "section 84(2)" there shall be substituted the words "section 84( )";

(bb) after those definitions").

On Question, amendment agreed to.

Clause 101 [Contracting out of prisons]:

Lord Fraser of Carmyllie moved Amendments Nos. 131A to 131D:

Page 84, line 26, leave out from first ("the") to second ("by") and insert ("provision or running (or the provision and running) by him, or (if the contract so provides) for the running").

Page 84, line 27, leave out from ("Scotland,") to ("shall") in line 30 and insert:

("(1A) While a contract under this section for the running of a prison or part of a prison is in force—

(a) the prison or part").

Page 84, line 38, at end insert:

Page 84, line 40, leave out ("as respects which such a contract") and insert ("for the running of which a contract under this section").

On Question, amendments agreed to.

Clause 108 [Provision of new prisons]:

Lord Fraser of Carmyllie moved Amendments Nos. 131E to 131G:

Page 88, line 44, leave out subsection (1).

Page 89, line 8, leave out ("Subsections (1) and (2)") and insert ("Section 101(1) and subsection (2)").

Page 89, line 21, leave out from second ("in") to end of line 24 and insert:

("(a) any prison provided under a contract entered into under section 101(1) above;

(b) any prison declared to be such under subsection (2) above and not vested in the Secretary of State; or

(c) any heritable or moveable property belonging to any prison mentioned in paragraph (a) or (b) above, to be vested in the Secretary of State.").

On Question, amendments agreed to.

Clause 121 [Service in England and Wales and Northern Ireland]:

Baroness Turner of Camden moved Amendment No. 132:

Page 95, line 28, at end insert:

("(3A) For the purposes of this section, subsections (2) and (3) of section 146 of the Employment Protection (Consolidation) Act 1978 shall not be taken to include reference to any member of the prison service as defined in subsection (3) of this section").

The noble Baroness said: My Lords, this group of amendments is concerned with terms and conditions of employment for prison officers. Amendment No. 132 ensures that rights conferred by the Employment Protection (Consolidation) Act apply to prison officers.

Currently under Section 146 of that Act, those who are in the police service, or who hold powers and privileges of a constable, are excluded from Parts II, III and V and Sections 8, 9, 53 and 86 of that Act. Those sections among other things confer the right to return after maternity leave and the arrangements for maternity leave. They also include provisions for the failure of an employer to allow a woman to return to work after maternity leave to be treated as dismissal.

I understand that the Prison Officers' Association has had cases where the prison department has brought forward maternity leave to 11 weeks before the expected week of childbirth without informing the employee until the sixth week. Where a person is only eligible for 14 weeks' maternity leave, such a practice could leave that person with only three weeks' maternity leave after the child is born or even less if the birth were late. The authority for that action comes from paragraph 179 of the staff handbook of the Home Office which states, If you are still absent on sick leave at the start of the 1lth week before your expected date of confinement, your maternity leave will be brought forward".

This would appear to be contrary to the provisions of the Employment Protection (Consolidation) Act. But, of course, if prison officers are regarded as constables, the rights conferred by that Act do not apply to them. That, therefore, seems to be rather inequitable. Moreover, there is a whole range of employment rights contained in Parts II, III, V and VII which are ruled out for people in the police service. That is defined as:

  1. "(a) as a member of any constabulary maintained by virtue of any enactment, or
  2. (b) in any capacity by virtue of which a person has the powers or privileges of a constable".

This issue was recently brought sharply to the attention of everyone, including the Prison Officers' Association, as a result of the court action and resultant decision which relied heavily on prison officers being regarded as having the powers and privileges of constables.

It seems to me that this affected not only their right to belong to a union and to take industrial action but also the rights of other employees enshrined in the legislation to which I have just referred. I am not at all sure that this was ever the intention. The simple amendment that I propose would put that right and I invite the Minister to accept it.

I would say that we are plainly most concerned about the whole issue of maternity rights, but there are other employment rights involved as well. I would very much like to hear from the Minister that he is either prepared to accept the amendment or he can in some way or another assure me that there is no need for the amendment because those rights are covered anyway elsewhere. I beg to move.

Lord Rodger of Earlsferry

My Lords, the noble Baroness mentioned the recent court case where the status of prison officers was in issue. That case highlighted their role as constables. The effect of the case on their role as constables is that it was held that they were not given the protection of the employment legislation. That was within a particular context.

However, the whole purpose of Clause 121(1) is that the relevant employment legislation as defined in subsection (2) shall have effect as if an individual who was a member of the prison service and acted in a capacity as a constable were not to be regarded as being in the police service for the purposes of any provisions of that legislation. That is because the exemption from that legislation is an exemption of those who are in the police service. In other words, if you are in the police service you are not covered.

Clause 121(1) states that the legislation is to have effect as if the person is to be regarded as not being in the police service. In other words, that person is to be taken out of the exempt category. It follows that in that situation the person will have the protection of the relevant employment legislation. It is because that person is therefore put back into the general category of people who are regarded as being within the employment legislation that Clause 122 goes on to provide—and this is an area where I fully appreciate that the noble Baroness may disagree with the policy behind it but nonetheless it does provide—for matters relating to inducing such officers to withhold services and commit an act in breach of discipline.

The whole purpose of Clause 121, particularly subsection (1), is to give prison officers in England and Wales rights under the employment legislation. I say "England and Wales" because, as the noble Baroness will be aware, in Scotland since such people do not have the rights and privileges of constables, they are not taken out of the employment legislation. So Clause 121 does not give rights to officers in Scotland but it does to those in England and Wales. I therefore feel, with the greatest possible respect, that the amendment is unnecessary and that what the noble Baroness seeks to achieve is in effect achieved by the provisions of Clause 121(1).

Baroness Turner of Camden

My Lords, I thank the Minister for that explanation. It will go on to the record and will, I am sure, have the effect of setting at rest a number of the fears that have been expressed to me by the Prison Officers' Association. Certainly the assurance that the general purpose of Clause 121 is to ensure that people in the prison service receive the full coverage of the employment rights in the appropriate legislation is very welcome indeed. It was not my intention this evening to do other than to seek the views of the Government in relation to both the court action that had been taken and the position of prison officers in relation to the sections of the Employment Protection (Consolidation) Act 1978. However, having received those assurances, for which I thank the Minister, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Turner of Camden moved Amendment No. 133:

Leave out Clause 122.

The noble Baroness said: My Lords, we now come to a matter that is rather more substantial. Noble Lords will be aware that in Committee we sought to make concessions to the view of the Government, who are opposed to possible collective industrial action by prison officers. In Committee we sought an amendment which would have adhered to the Government's view except in so far as, where health and safety issues were involved, prison officers should be able to have recourse to the ultimate sanction of the withdrawal of labour. The Government, however, refused to budge an inch over this issue. I have therefore tabled an amendment today to register our opposition to the dilution, as we see it, of the fundamental right of prison officers collectively to take industrial action.

That right, as noble Lords will be aware, is enshrined in many international conventions and declarations to which the Government are a signatory. I shall not go over them again. We went over them in some detail in Committee. Clause 122 effectively reduces to nil the right of prison officers to employ that sanction collectively. It is an ultimate sanction. We are not talking here about people who are normally extremely militant. Many of them were formerly in the Armed Forces, where discipline is almost a way of life. Industrial action of any kind is not undertaken lightly. But the nature of the Prison Service is such that when there is any kind of industrial action it immediately attracts media attention.

Nor are we dealing here with normal working conditions. If we look at the state of the prison system at present we can see why it is important for prison officers to retain their right to this ultimate sanction. The prison population has risen sharply in the past few years. Sixteen months ago the prison population was around 40,000. It is now nearly 49,000. In the first four months of this year the population of prisons in England and Wales went up by 3,500, an average increase of 300 a week. The remand population has gone up by nearly 50 per cent. in the past 15 months. The number of juvenile offenders in custody has increased markedly. Fine defaulters given gaol sentences have doubled in the past 18 months. The population increase leads to knock-on effects that make prisoners much more difficult to handle and more volatile. There is a shortage of suitable accommodation. Prisoners are kept in prisons a long way from families and that increases tension.

Moreover, between 1981 and 1991 the number of prisoners serving between five and 10 years increased by 300 per cent. During the same period the proportion of prisoners serving a sentence of life imprisonment increased by 76 per cent., and those convicted of violence against the person by 21 per cent. The supply of accommodation has not kept pace. Prisoners are being kept in accommodation that is not secure enough for their needs. That is reflected in the increase in assaults in prisons. The Government's own figures show that between May 1990 and May 1992 assaults on prison staff increased by 56 per cent. Last year alone they increased by 33 per cent. Last year, on average, one prison officer in eight was assaulted by a prisoner.

There have been 13,000 drug finds in the past five years. Drugs are another cause of prisoner violence. The opportunities for violence against staff and prisoners and for bullying and drug taking have also increased. It is a laudable objective to keep prisoners out of cells but the reality is that there are no more resources to keep prisoners busy for the extra time that they are out of their cells. The additional boredom combined with increased access to other prisoners leads to gangland cultures and no-go areas within prisons as there are not enough staff to run those parts of the prison.

Prison officers and staff have to deal with those conditions. The removal of the right to take industrial action and the right to negotiate pay and conditions will lead to a breakdown of morale and discipline within the prison service, as the only safety valve for prison officers to highlight dangerous and degrading con-ditions will disappear. It will lead to more wildcat strikes by individuals who, by not acting collectively —that is the point—will not break the law. The Bill only makes it illegal to induce a prison officer to contravene Clause 122. In other words, there is a direct prohibition on collective union action and that will make managing the prison more difficult.

Lord Justice Woolf acknowledged that poor industrial relations lead to poor staff-prisoner relation-ships. Therefore it is necessary that industrial relations are normalised in so far as they reasonably can be. That will not be done by removing rights which exist for other employees in other situations. As I said in Committee, prison officers do a necessary job, which many of us would not relish doing. Since they act on our behalf, it is up to us through Parliament to see that their conditions are normalised so far as possible. That is what the amendment seeks to do. I beg to move.

10.15 p.m.

Lord Rodger of Earlsferry

; My Lords, as I explained when I spoke to the previous amendment, the purpose of Clause 121 is to improve the position of prison officers in England and Wales. The present position, as has been held by the courts, is that prison officers do not have the right to strike or indeed any of the other rights under employment legislation. Clause 121 improves their position.

The three clauses—Clauses 121 to 123—have to be seen in some sense as a unit. They are designed to give an overall, coherent policy to improve the position of prison officers in England and Wales by giving them protection which they do not have. Nonetheless they make clear that prison officers do not have the right to strike and that if a person contravenes the subsection by inducing a prison officer to withhold his services or commit a breach of discipline, he falls within the provisions of Clause 122.

The purpose of that clause is to make sure that prison officers do not withdraw their services. Therefore they are in a position analogous to those in the police and the army, who are in a similar position. That is because of the importance of the kind of services which are rendered by members of those services. We recognise that.

The noble Baroness referred to various problems in relation to prisons and prison populations. That only underlines the importance of the work done by prison officers, which we fully acknowledge. It is also all the clearer that, if they were permitted to withdraw their services, it could lead to acute and indeed grave positions. There was a burst of industrial action in 1986 and at that time there were serious disturbances among inmates, including disturbances leading in one prison to destruction of property valued at millions of pounds. We are therefore dealing with a different and specific kind of situation. We believe that in that situation the provisions of Clause 122 are fully justified. They are balanced by the provisions of Clause 123 which provides for the Secretary of State to make regulation providing for the establishment, maintenance and operation of procedures for determining rates of pay and so forth relating to prison officers. For that reason we see all the clauses as being interrelated; as forming an important package which will put employment for prison officers on a proper footing. For those reasons I resist the amendment of the noble Baroness.

Baroness Turner of Camden

My Lords, I am sorry to learn from the Minister that the Government are not prepared to move on the issue. It will be recalled—in fact, I mentioned it in my opening remarks —that we attempted to meet the Government's position to some degree by limiting the industrial action that we proposed to matters concerned with the health and safety of prison officers. But the Minister at that stage was not prepared to accept it. For that reason I came back at Report stage with an attempt to put on record at least our view that prison officers were entitled to the same rights as other employees; that is, the ultimate sanction if need be to withdraw labour. As I indicated earlier, these are not people who are normally militant. However, they are occasionally put under great pressure, as I am sure your Lordships will appreciate. Therefore, to have a situation in which at least it is known that the ultimate sanction is available is much more of a safety valve than perhaps it would be in other situations.

I note that the Minister believes that there is a coherent whole in the clauses. I shall say something about that when speaking to the next amendment. He said also that it is not felt that with this kind of service it is appropriate that there should be a right of collective action. I am sure that the prison officers will not see it that way and I can only hope that when the clauses are in operation they work effectively. Perhaps they will if there is a real attempt to deal with overcrowding and with some of the conditions in prisons that are responsible for the kinds of tension to which I referred in my opening remarks. I have some doubt about that, but there is no point in attempting to divide the House at this time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 123 [Pay and related conditions]:

Baroness Turner of Camden moved Amendment No. 134:

Page 97, line 12, at end insert:

("(1A) Procedures established under subsection (1) above shall include the establishment of a Prison Service Arbitration Board, which shall make binding decisions on matters falling within paragraphs (a) and (b) of subsection (1) above in the event of a failure to agree between representatives of persons working in the prison service and the Secretary of State on those matters.").

The noble Baroness said: My Lords, in moving Amendment No. 134 I shall speak also to Amendment No. 135 with which it is grouped, although they are not all that similar. We discussed the right of prison officers to take industrial action. Not surprisingly I was unable to change the Government's mind. However, Amendment No. 134 seeks to introduce a system of arbitration for the pay and conditions negotiations established under the clause. It attempts to provide some recompense for the loss of the right of industrial action.

The Government say that Clause 123 is designed in part to compensate for the removal of the right to collective industrial action by recognising that the bargaining power of the employees' representatives has been greatly reduced. But as the clause now stands it gives the Secretary of State virtually complete power in determining the establishment of any pay and conditions procedures. The Bill only provides that the unions are consulted. That implies a more passive role than if the Bill had required negotiation with the representatives of those working in the prison service.

The Bill seeks to replace a system of negotiation with one of consultation. But of course the Secretary of State does not have to take any notice of the advice he receives in the consultation process. Negotiation, however, gives the employee representatives a more active role. It is vital that the views of the employees —in this case prison officers—are taken seriously. This Bill does not do that.

The pressure from the private sector that has been introduced by the Home Secretary will possibly tempt him to try to drive down the wages of prison staff. An independent arbitration system would provide some restraint. The Edmund-Davies Report into the police pay and negotiating machinery recognised that point when it examined the question of pay in relation to the police and not having the right of industrial action. The Committee said: In common with all those who submitted evidence for our consideration, this Committee is satisfied that the absence of the right to strike is a serious deprivation for any worker. It is essential that the police should not suffer in pay because they are deprived of the right to strike, and it should be put beyond doubt that they are being paid fairly".

If that is true for the police it is surely true also for the prison staff. It is a dangerous occupation. Prisoners are among the most dangerous people in our society. For the sake of the safety of the rest of us, they are locked up and prison staff appointed to ensure that that is so. The safety of prison staff is constantly at risk. My earlier amendment opposed the removal of the right to collective action because, among other things, the threat to prison staff has increased. This clause in no way replaces the loss, nor does it provide real compensation for it. That is why I am proposing in this amendment an independent form of arbitration. Without such a provision the Secretary of State would have absolute power in regard to wages and conditions.

The Bill does not even guarantee a form of machinery that would allow negotiations at a later stage. We believe that there is considerable merit in having am independent body to which either side can refer a matter in dispute. That body can listen to the representations made by the organisations involved. Both the unions and the prison department could present their case. All sides would believe that they were getting a fair hearing. The result of the arbitration would receive much greater acceptance on all sides.

The experience of arbitration in pay and conditions negotiations in other sectors has been positive. Arbitration is a well-established system that has been used for the police since it was introduced by the Police Act 1964. Why have the Government not sought to include similar provisions in this Bill fot prison staff? The use of arbitration within the police pay and negotiations system has worked for 30 years and was confirmed by this Government more recently in Section 2 of the Police Negotiating Board Act. These measures are enshrined in primary legislation.

I myself have some experience of arbitration although not for the police service. I was for many years a member of the Central Arbitration Committee (CAC). I believe that arbitration as a system has a great deal of merit. In my experience the parties concerned invariably accept with a very good grace the decisions which are reached. I am sure that on the CAC we were often instrumental in defusing some difficult situations.

Prison officers are already feeling disoriented and upset by this Bill. They are worried about what the future may hold for them. If the Government were to accept this amendment —perhaps not this wording but at least in principle—it would do a great deal to allay the fears that have been expressed.

I turn now to Amendment No. 135 with which Amendment No. 134 is grouped. Amendment No. 135 is a small amendment. Again, it is introduced to try to allay the fears and suspicions of prison staff as represented by the Prison Officers' Association. The clause in the Bill as it stands reads, Before making any regulations … the Secretary of Suite shall consult with such organisations appearing to him"—

I emphasise that— to be representative of persons working in the prison service and with such other persons as he thinks fit".

I do not quarrel with the latter part of the clause. Plainly, he should, consult with … such other persons as he thinks fit".

But the words "appearing to him" in the part of the clause referring to, organisations … representative of persons working in the prison service

made me in particular feel slightly suspicious. Organisations are either representative of people working in the prison service or they are not.

The clause as it stands would appear to give the Secretary of State the right to consult organisations that appeared to him to be representative. But supposing that he had a row with the Prison Officers' Association and supposing that another organisation was formed -perhaps a breakaway; such things have happened -could he then decide to consult only the breakaway and not the main organisation on the grounds that it appeared to him that the breakaway was more "representative"? I am not saying that that would happen immediately or even with the present Secretary of State. I do not think that it would. But we are creating legislation here that may be on the statute book for a long time. It seems to me that it would be more appropriate simply to say in the Bill, "The Secretary of State shall consult with organisations representative of persons working in the prison service". That is clearer and it is unequivocal. Everybody knows what it means. I beg to move.

10.30 p.m.

Lord Harris of Greenwich

My Lords, I agree with much of what the noble Baroness, Lady Turner, has just said. I have spoken in this House on many occasions in the past 10 years on the subject of industrial relations in the Prison Service. The one point on which I differ from the noble Baroness is her account of what industrial relations in the Prison Service were really like. Frankly, they were appalling. That was indicated in the report of Sir John May, and the report of Lord Justice Woolf indicated that there had been a further deterioration. I am not trying to apportion blame here; I am merely stating a fact. At a lecture that I was invited to give at the prison service staff college, I said that I did not believe that that situation could continue because no government would accept it in the long term. We have therefore reached the sad situation that we are debating today.

Having said that, the point on which I wholly agree with the noble Baroness is that it is essential to have some form of independent arbitration system. There is an analogy with the police—largely because it is unlawful for a police officer to take industrial action, as will now be the case for a prison officer. However, the police are essentially a local government service whereas we are now talking about people who are directly employed by the Crown. Nevertheless, although it will be unlawful for a prison officer to take industrial action, I very much hope that the Government recognise that there is a real danger of a festering sense of injustice developing if the Government misuse the power that they now possess. You cannot possibly run a sensible, civilised prison service unless that is recognised.

As I have argued privately in the past, it is highly desirable to have some form of independent tribunal making judgments or recommendations on prison service pay. I do not think that we can have the very unattractive combination of absolute power for Ministers with the same Ministers determining the pay and conditions of their staff. There has to be an independent system. I very much hope that the Minister will say that the Government's mind is still open on this issue.

Lord Rodger of Earlsferry

My Lords, as the noble Baroness said, the second of these two amendments is perhaps relatively minor by comparison. Its purpose is to state that it it is ultimately for the Secretary of State to consult people who appear to him, in his judgment, to be representative of persons working in the Prison Service. If that judgment were reached on grounds which were perverse—using the word in its broad sense and not giving it its full legal context—it could nowadays be subject to judicial review. Therefore there is not, as there may have been a decade or more ago, a fear that that could be used in an uncontrolled way. It means that he has to make a judgment and consult the people who appear to him to be representative of the prison service. Provided that that is a genuine judgment, that is all right.

The other point of course goes wider. The amendment seeks, in one sense, to pre-empt in part the result of the very process of consultation for which the clause makes provision. The clause provides that, 'The Secretary of State may by regulations provide for the establishment … of procedures". Subsection (4) states what the regulations may provide.

Subsection (2) provides that before making the regulations the Secretary of State is to consult. There would be no sense in having a consultation process if the outcome of that consultation process and the process of considering the procedures were pre-determined. Therefore I reject the idea that a procedure of the kind envisaged here is one at which the consultation process and the Secretary of State's consideration would inevitably arrive.

It is of course appropriate for the Secretary of State, having consulted, to consider what should be the appropriate mechanisms. Your Lordships will appre-ciate that the provision will cover different kinds of people who are officers within the meaning of the provision. It does not necessarily follow that the mechanism will be the same for all the kinds of people concerned. Some grades may prefer one mechanism and others another.

As I say, we cannot predict what will be the outcome of the procedure. I observe merely that, contrary to what I think was indicated by the noble Baroness, although there is an arbitration system for the police there is no system of binding arbitration, which is what the amendment would provide. Some people criticise the system in the case of the police because it does not provide for binding arbitration. The amendment would go further than what is available for the police at the moment. I accept that it is important that the procedures arrived at here are ones which command a good measure of consent. We hope obviously that to a large extent they can be arrived at by agreement. The whole point of the clause is that it envisages a process of consultation before the appropriate procedures are put in place. We cannot accept that that should be pre-empted in the way envisaged by the amendment.

Baroness Turner of Camden

My Lords, before the noble and learned Lord sits down, will he confirm that the Government's mind is not closed on the subject of arbitration, and that they are willing to consider a form of arbitration should that emerge as a result of the consultation process?

Lord Rodger of Earlsferry

My Lords, as I have said, it would be wrong for the Secretary of State to have made up his mind about what would be appropriate even before the legislation is enacted. All I say is that what the noble Baroness was suggesting was a form of arbitration which went further than is the position for the police at the moment. I cannot go any further than that.

Lord Harris of Greenwich

My Lords, the noble and learned Lord has not answered the question. Whatever may in law be right or wrong, we all know perfectly well that the Secretary of State has of course decided how he will approach the legislation. Having served in the Home Office, I am well aware of how Ministers respond. What the noble Baroness asked was whether the Government had decided finally not to accept any form of independent arbitration. I should be extremely grateful if we could have an answer to that question.

Lord Rodger of Earlsferry

My Lords, I adhere to the position that it would be wrong to anticipate Parliament's view on these matters. I am sure that that would have been wrong even in the noble Lord's time at the Home Office. However, we have not finalised a view and it follows that we have not ruled out a form of arbitration. That is one of the possibilities which will enter the final outcome of any consultation. At the end of the day, the consultation takes place and then the Secretary of State makes up his mind.

Baroness Turner of Camden

My Lords, I note what the Minister said and I am grateful for his final comments. At least prison officers will be aware that their request for an independent form of assessment of wages and conditions will be taken seriously by the Government.

In response to Amendment No. 135, the Minister indicated that a perverse decision by the Secretary of State as to the organisations which he did or did not consult would be open to judicial review. Of course, I am aware of that. However, it is a somewhat lengthy process and a rather expensive one. I believe that it would have been more sensible to have accepted my amendments and included a clause providing that the Secretary of State shall consult organisations which are representative of people working in the prison service.

I note the views that have been expressed tonight. I am grateful for the acceptance that independent arbitration has not been ruled out and that there will be consultation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 135 not moved.]

Clause 131 [Execution of warrants]:

Lord Fraser of Carmyllie moved Amendment No. 135A:

Page 103, leave out lines 33 to 45 and insert: ("( ) A person arrested in pursuance of a warrant shall be taken, as soon as reasonably practicable, to any place to which he is committed by, or may be conveyed under, the warrant.").

The noble and learned Lord said: My Lords, I shall speak also to Amendments Nos. 135B, 136 and 137. These are technical amendments. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 135B:

Page 104, line 17, leave out ("of detention and return of sentence") and insert ("to imprison (or to apprehend and imprison)").

On Question, amendment agreed to.

Clause 136 [Aid of one police force by another]:

Lord Fraser of Carmyllie moved Amendments Nos. 136 and 137:

Page 110, line 15, leave out ("demands") and insert ("demand").

Page 110, line 25, leave out ("demands") and insert ("demand").

On Question, amendments agreed to.

Lord Ponsonby of Shulbrede moved Amendment No. 137A:

After Clause 136, insert the following new clause:

("Sexual offences: rape Rape of women and men

. For section 1 of the Sexual Offences Act 1956 (rape of a woman) there shall be substituted the following section—

"Rape of woman or man.

1.—(1) It is an offence for a man to rape a woman or another man.

(2) A man commits rape if—

  1. (a) he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it; and
  2. (b) at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it

(3) A man also commits rape if he induces a married woman to have sexual intercourse with him by impersonating her husband.

(4) Subsection (2) applies for the purpose of any enactment." ").

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 126B. I beg to move.

On Question, amendment agreed to.

Lord Ponsonby of Shulbrede moved Amendment No. 137B:

After Clause 136, insert the following new clause:

("Sexual offences: revised penalties

Sexual offences: revised penalties

  1. .—(1) The following paragraphs of the Second Schedule to the Sexual Offences Act 1956 (which prescribe the punishments for offences of buggery and of indecency between men) shall be amended as follows.
  2. (2) In paragraph 3—
    1. (a) in sub-paragraph (a) (buggery), for the entry in the third column there shall be substituted "If with a person under the age of sixteen or with an animal, life; otherwise two years."; and
    2. (b) in sub-paragraph (b) (attempted buggery), for the entry in the third column there shall be substituted "If with a person under the age of sixteen or with an animal, life; otherwise two years.".
  3. (3) In paragraph 16—
    1. (a) in sub-paragraph (a) (indecency between men), for the entry in the third column there shall be substituted 'Two years."; and
    2. (b) in sub-paragraph (b) (attempted procurement of commission by a man of an act of gross indecency with another man), for the entry in the third column there shall be substituted 'Two years.".").

The noble Lord said: My Lords, Amendment No. 193A is consequential on this amendment. My second sequence of amendments is broadly consequential on the amendments in respect of rape, which we discussed earlier. The purpose is to tidy up the law relating to penalties where buggery would remain an offence but would not be rape.

This sequence of amendments also relates to Amendment No. 137C in the name of my noble friend Lady Mallalieu, on heterosexual buggery. If that amendment is agreed to by your Lordships there will need to be a penalty for those instances of heterosexual buggery which remain an offence. At the same time, I seek in these amendments to reform the scale of penalties for gross indecency and to bring them into line.

I do not wish to weary your Lordships by going through a complex situation in too much detail. However, I am afraid that some detail is unavoidable. First, I deal with the law as it is. These amendments do not seek to change that. They do not seek to change any penalty involving sex with either a boy or a girl under the age of 16. That age is the most significant watershed in relation to the offences. Buggery with someone under that age carries a sentence of life imprisonment. I remind your Lordships of the offence of indecent assault which carries a maximum of 10 years where unwelcome sexual advances short of rape have been made on either a woman or a man or where a boy or a girl under 16 cannot in law have been held to have consented to the act in question.

However, the offence of unlawful sexual intercourse with a girl aged between 13 and 16 carries a maximum sentence of two years. All that being so, my amendments deal in practice with instances of consensual sex in one of two classes of case: either— and this is clearly the most serious case—where one or both of the parties are under age but over 16; or else, where the sex takes place in unlawful circumstances. That would most notably be in public. Therefore, in the latter case, we are dealing as much with a public decency offence as with a sexual offence.

At present, consensual gross indecency or buggery between a man over 21 and a young man under 21 but over 16 carries a penalty of five years. Where both men are under 21, the penalty is two years. Where both men are over 21, the penalty is also two years.

My approach is simple. I seek merely to impose a penalty of two years across the board. That would apply in the case of consensual buggery with a girl aged between 16 and 18, if my noble friend's amendment is accepted. I suggest to your Lordships that that is not much of a change. I considered making the five year penalty apply where there is consensual sex between someone over 18 and someone under 18 but that would have the curious effect of actually increasing the present penalty in the case of some homosexual men, where someone between the ages of 18 and 21 has sex with someone aged 16 or 17. My standard has been the penalty for unlawful sexual intercourse with a girl aged between 13 and 16. I cannot see that a higher penalty should apply to an older age group. I beg to move.

10.45 p.m.

Lord Kilmarnock

My Lords, I feel that the noble Lord, Lord Ponsonby of Shulbrede, has steered us extremely lucidly through this labyrinth, as he did in Committee. Again, as on the previous amendment in relation to male rape, he has all the arguments on his side.

I understand that some help has been given with drafting the amendment. I hope that the Government will look upon it with the same munificence with which they regarded the noble Lord's previous amendments.

Earl Ferrers

My Lords, in Committee I said that we should hesitate to do away altogether with the current five-year maximum penalty for consensual homosexual acts between an older and a younger man; for example, where the younger man was still under the new age of consent. However, I do not dispute that the change in the age of consent for homosexuals makes desirable some change in the penalties.

I believe that we should consider circumstances in which the consent of the younger person may, in some sense, be tainted. For example, I am thinking of a case in which an older man may abuse a position of authority to obtain sexual favours from an adolescent in his care. That can be especially dangerous and wicked in a residential setting where a disadvantaged or inadequate young man may find himself to be the prey of an older man who has sought employment there only to indulge his sexual preferences.

In those circumstances, it may be impossible to prove an absence of consent but Parliament has decided in the course of the Bill that young men of 16 and 17 years of age need a special protection from homosexual advances. Thankfully, that sort of thing does not happen very often in those circumstances; but a maximum penalty of two years may not be sufficient where it does happen.

Therefore, I should be hesitant to accept the amendment but I should like to consider the matter further before Third Reading in the hope that it may be possible to produce another proposal for your Lordships to consider. I hope on that basis the noble Lord will agree to withdraw the amendment, at least for the time being.

Lord Kilmarnock

My Lords, I have a question to put to the Minister before he sits down and before the noble Lord, Lord Ponsonby, responds. In the light of his final remarks, will the noble Earl consider looking at some of the continental arrangements whereby the sort of undesirable consequences about which he talked are taken care of by a differential age where people are in a position of special responsibility or trust vis-a-vis a younger person?

Earl Ferrers

My Lords, I am not too familiar with what happens on the Continent; indeed, I am not all that familiar with what happens here in that respect. However, I shall certainly see that the point is considered along with the main substance of the noble Lord's amendment.

Lord Ponsonby of Shulbrede

My Lords, I am sure that the noble Earl will forgive me if I say that I am slightly surprised by his response. He will know that I received the greatest co-operation from his office in the drafting of the amendments. However, I believe that I understand the noble Earl's anxiety. There may be a small number of cases where a young man under 18 but over 16 may be inveigled into having a sexual relationship with an older man by undue influence, but where neither rape nor indecent assault can be charged because the younger man could be held to have consented. As I understand it, that is the Minister's argument. Indeed, he mentioned the instance of young men who are held in care. It seems to me that there should be a substantial penalty in that respect.

However, by and large, we are dealing with a category of offences which are public order offences —that is, offences that are serious but which are not the terrible breach of trust suggested by the Minister. It is the peculiar structure of the law on homosexual acts which lumps those in with the cases of under-age sex across age barriers.

To see the real problem, I believe that we need to look at the actual offences. I have with me some figures regarding convictions for gross indecency which have been taken from Home Office replies to Questions. In the years 1990–92, there were 577 convictions for gross indecency, 154 of which involved a male over 21 with a male under 21. However, there were only eight sentences of immediate custody for them, six of which related to a case of a man over 21 with a man under 21 —and one was himself under 21. But—and this is the significant point—only 12 of the those 154 offences related to age-of-consent offences as such; that is, where the act was in private.

In short, I suggest that this is overwhelmingly a public order offence. At the risk of giving a hostage to fortune, I see no real reason why a 16-year old should be treated more leniently in the context of public order than a 21-year old. I certainly see no instance where a maximum penalty of more than two years would be appropriate.

I hope that the noble Earl will be able to find a way of separating the very few hard cases to which he referred from the generality. I should be interested to hear of a case where a higher sentence than two years has in fact been imposed under the present law. I believe that that would prove that there is a real evil to remedy.

I repeat my earlier point. I cannot see why we have to protect young men of 16 and 17 by a higher penalty than the one with which we protect young girls of 13 to If the amendment tabled in the name of my noble friend Lady Mallalieu is passed, we will need to decide on a penalty for consensual buggery with a girl of 16 or I can see no need for a different penalty in that respect. I also see no need for a different penalty from that which applies in Scotland where I believe there is a two-year sentence across the board. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Mallalieu moved Amendment No. 137C:

After Clause 136, insert the following new clause:

("Sexual offences: male rape and buggery

Male rape and buggery

  1. (1) Section 12 of the Sexual Offences Act 1956 (offence of buggery) shall be amended as follows.
  2. (2) In subsection (1), after the words "another person" there shall be inserted the words "otherwise than in lawful circumstances".
  3. (3) After subsection (1), there shall be inserted the following subsections—
    1. (a) when more than two persons take part or are present; or
    2. (b) in a lavatory to which the public have or are permitted to have access, whether on payment or otherwise."").

The noble Baroness said: My Lords, in Committee I tabled an amendment to decriminalise buggery when it takes place between an adult man and an adult woman in private and when both consent. That amendment drew support from noble Lords on all sides of the Chamber for which I was most grateful Many others who did not speak in the debate have expressed their support to me in the interim period. On that occasion, the noble Earl said that he wished to consider what had been said, so I withdrew the amendment and said that I would return to the matter on Report.

The amendment which I move this evening looks rather different. I should explain that I have received the helpful advice of the noble Earl's office and of the parliamentary draftsman for which I am also grateful. But its effect is intended to be the same as the original. I hope the House will permit me briefly to explain the provisions and the effect of this amendment.

Under the law at present, anal sexual intercourse between an adult man and an adult woman conducted in private, even where both consent, is illegal. That this far from uncommon activity is a crime astonishes many members of the general public and further dumbfounds them when they learn, additionally, that the offence presently carries a maximum penalty of life imprison-ment. In most cases, of course, no one complains. No one outside the couple concerned knows so the law is not involved, but there are exceptions.

A complaint is sometimes made by a woman following the breakdown of a relationship or a marriage that she has been the victim of violence, or rape or sometimes buggery. It is in those circumstances that a trial sometimes follows at which the man admits buggery but claims that the woman consented. If he goes on to fight the case, the jury are told by the judge that they have no alternative but to find him guilty because consent is no defence. If he is found guilty, or pleads guilty to buggery, the question of whether or not the woman consented is for the judge alone to decide, not the jury. It is purely a question of mitigation.

Where the judge decides the woman did not consent, a sentence—as the noble Earl has already said in answer to one of the amendments of the noble Lord, Lord Ponsonby—of some years imprisonment is imposed, akin to a sentence in a rape case. But where the judge decides the woman consented, or may have consented, the Encyclopaedia of Sentencing, which supplies precedents to judges and contains the guideline cases to which judges must have regard, indicates that for consensual buggery between an adult man and an adult woman in private the appropriate sentence is an immediate custodial sentence of three months. From experience as a barrister I know that such sentences are indeed imposed.

A great deal has been said in this House during the passage of this Bill, and elsewhere too, about the need for equality between the sexes. It cannot, I believe, be right for a form of private sexual behaviour to which both parties consent to be legitimate when it takes place between two men but to attract an immediate prison sentence when it concerns a man and a woman. The idea of anal sexual intercourse is, I suspect, repugnant to many people, perhaps a majority, and if this amendment is accepted people who feel that way will no doubt continue to feel just the same. The health risks of this type of intercourse are well known and are likely to be a deterrent in themselves, and that too would not change. But I hope that the proposed change in the law would have a number of real benefits. It would remove a bar to those who may be in need of medical advice or treatment but who are afraid to seek it and thus admit to a serious criminal offence and risk the possible prosecution as a result. It would remove an almost wholly unenforceable, anachronistic and inequitable piece of legislation with draconian penalties from the overloaded statute book.

The reasons why Parliament failed to alter the law in this respect back in 1967 when similar activity for adult men was legalised are unclear. Embarrassment and unwillingness to accept that such behaviour can be consensual, distaste and even perhaps indifference, I suspect all played a part. So people have continued to be sent to prison for heterosexual consensual buggery for nearly 30 years after consensual homosexual buggery was legalised.

I hope that the Minister will feel, after reflection, that he can accept this amendment. For far too long the long arm of the law has been allowed to reach behind the bedroom door to wave the finger of disapproval at adult men and women engaged in private sexual activity of this kind and indeed to lock some of them up. It is about time that not only adult men but adult women too should be able to close the bedroom door firmly in the face of the law in these circumstances and tell it to mind its own business. I beg to move.

11 p.m.

Lord Harris of Greenwich

My Lords, the noble Baroness has made an unanswerable case. I hope very much that on the basis of what she said the Government will accept the amendment. It would be an absurdity to say that if two men become involved in activities of this sort it is not a crime but if a man and a woman indulge in precisely the same conduct it is a crime. I hope that the noble Earl will accept the amendment.

Earl Ferrers

My Lords, the noble Lord, Lord Harris of Greenwich, invariably invites me to accept an amendment. I do not always do so. I said in Committee that I would consider carefully the arguments put forward by the noble Baroness, Lady Mallalieu. Indeed, I have spent a good deal of my time since Committee considering her arguments on one matter or another with regard to the Bill.

I have already explained how our reluctance to see the Bill diverted into a sexual offences Bill has caused us to approach matters of this kind with some caution. However, there is no doubt that many people are surprised to discover that the law forbids any consensual heterosexual buggery, whatever the circumstances. I would not wish to suggest that this practice is common, although the noble Baroness says that it is a good deal more common than one might suspect. I have no idea, thank heavens, and no way of knowing whether it is a common practice. However, it seems obvious that this offence is unenforceable.

The Criminal Law Revision Committee called for a change in the law in 1984, and it has been a lack of opportunity to debate the issue rather than any objection of principle which has prevented Parliament doing anything about it earlier. This is a matter relating to the private sexual activity of consenting adults. Although the noble Lord, Lord Harris, says he hopes that the Government will accept the amendment, I should tell your Lordships that for that reason it is a matter which should be the subject of noble Lords' individual opinions. In the Government's view it is a matter which should be the subject of a free vote of your Lordships.

For my part, I believe that the noble Baroness, Lady Mallalieu, has tabled a sensible amendment to which I should be happy to give my approval.

Baroness Mallalieu

My Lords, I am most grateful both to the noble Earl and to the noble Lord, Lord Harris of Greenwich, for what they have said. I am also particularly grateful for the assistance that I have had with the amendment from the staff in the noble Earl's office. In the light of what has been said by those who have chosen to speak I urge the House to accept that this is a small but important amendment and a step in a sensible direction. I commend the amendment to the House.

On Question, amendment agreed to.

[Amendments Nos. 138 to 141 had been withdrawn from the Marshalled List.]

Earl Ferrers moved Amendment No. 142:

After Clause 137, insert the following new clause:

("The Parole Board

Incorporation of the Parole Board

. In section 32 of the Criminal Justice Act 1991 (which provides the constitution and basic functions of the Parole Board), for subsection (1), there shall be substituted the following subsection—

(1) The Parole Board shall be, by that name, a body corporate and as such shall be constituted in accordance with, and have the functions conferred by, this Part."").

The noble Earl said: My Lords, in moving Amendment No. 142 I shall speak also to Amendment No. 188. These amendments are intended to give the Parole Board full non-departmental public body status. Similar amendments tabled in Committee by my noble friend Lord Windlesham were agreed to in principle by the Government, and I offered to bring forward the appropriate amendments at Report stage. These are they.

Lord Belstead

My Lords, in the absence of my noble friend Lord Windlesham, who is unavoidably away from your Lordships' House this evening, I thank my noble friend the Minister for the positive response to his amendments at the previous stage of the Bill.

I declare an interest as chairman of the Parole Board. I am most grateful to the Government for their positive response to what, in effect, were probing amendments by my noble friend. The amendments which my noble friend Lord Ferrers proposes are in line with the additional responsibilities placed on the Parole Board by the Criminal Justice Act 1991.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 143:

After Clause 137, insert the following new clause:

Powers to recall prisoners released on licence

(". In section 50 of the Criminal Justice Act 1991 (power by order to transfer certain functions to the Parole Board) subsection (4) shall cease to have effect and, in subsection (1), for the words "(2) to (4)" there shall be substituted the words "(2) or (3)".

The noble Earl said: My Lords, I beg to move Amendment No. 143 and speak to Amendments Nos. 176, 203, 205 and 211.

These amendments make changes to the Criminal Justice Act 1991 concerning the recall to custody of those persons on parole. Similar amendments were tabled at the Committee stage by my noble friend Lord Windlesham which the Government agreed to in principle and I offered to table appropriate amendments at the Report stage. This we have now done.

Where offenders misbehave while on parole, there is a discretion to revoke their licence and to recall them to prison. Sometimes this can happen in an emergency and it is therefore essential, in order to protect the safety of the public, that the procedures should be straightforward.

Until recently, outside office hours, decisions to recall those on parole were taken by officials on behalf of the Home Secretary. But because of the construction of the Criminal Justice Act 1991, two systems of recall are now running in parallel: one by the Parole Board and the other by the Home Secretary.

This causes confusion to the police and probation service and, in an emergency, valuable time can be lost. This can jeopardise the safety of the public and therefore must be changed.

To simplify procedures, only one system of recall should operate and it has been agreed with the Parole Board that it should rest with the Home Secretary. But the board will continue to review decisions to recall those on parole. I beg to move.

Lord Belstead

My Lords, I thank the Minister for the amendment. It does not remove any power or responsibility from the Parole Board but puts the procedures for the recall of prisoners, in particular emergency recalls, on to a good footing.

I do not ask the noble Earl a question, but express the hope that when the commencement provisions are brought into effect by Clause 159 of the Bill, this government amendment —it is most welcome so far as concerns the Parole Board—will be brought into effect immediately.

On Question, amendment agreed to.

[Amendment No. 144 not moved.]

Lord McIntosh of Haringey moved Amendment No. 144A:

After Clause 137, insert the following new clause:

( "Body to investigate miscarriages of justice

(1) The Secretary of State shall within one month of the date of Royal Assent of this Act lay before both Houses of Parliament a report describing what plans he has to set up an independent body to investigate alleged miscarriages of criminal justice in England, Wales, Scotland and Northern Ireland and the timetable within which he proposes to do so.").

The noble Lord said: My Lords, at Second Reading of the Bill, I spoke in a spirit of congratulation to the Government about the consultation document which they issued in April of this year about the criminal cases review authority. It is well known that on these Benches we regret the extent to which the Bill—it had been heralded as a Bill to deal with miscarriages of justice —failed to deal with what to us was one of the central recommendations of the Runciman Royal Commission: that there should be established an independent criminal cases review authority. We had contemplated tabling amendments to the Bill to provide for the introduction of such an authority, if necessary on a non-statutory basis. We were disarmed by the consultation document, the White Paper published in April of this year. It seemed to us an excellent statement of the issues which the Runciman Royal Commission had brought forward and to cover the quite complicated issues. We recognise the difficulty of bringing forward legislation on matters such as those raised by the establishment of an independent criminal cases review authority. Our hopes were buoyed up by the thought that, the Government having published this White Paper, and having set a reasonable period—it was reasonably short and reasonably long—for consultation, they might proceed to legislation in the 1994-95 Session.

At the time I discussed the matter with the noble Viscount, Lord Runciman. He was so pleased with the White Paper—as I was—that he said he would not be submitting formal evidence to the Government about the White Paper because he felt the issues had been adequately canvassed. Imagine our disappointment, then, when we had press reports—and they are bound to be only press reports because no one will commit the Government to any particular item of legislation in the next Session—that the setting up of the criminal cases review authority, or rather legislation to provide for its setting up, could not be introduced in the Session of 1994–95; it would be delayed until the following Session.

It was not only we who felt this sense of disappointment. The Lord Chief Justice made a speech to the Lord Mayor's dinner for judges on Wednesday 6th July, last week. I do not need his authority to quote it because it is a public matter, but I have talked to him about it. He said: I have supported the Government's view that solving the practical problems and working out the details of these proposals"—

that is the Royal Commission's detailed package of recommendations— made it impossible for them to be included in the Criminal Justice Bill presently before Parliament. The same applies to the Commission's proposal of a new Review Authority to examine alleged miscarriages of justice. But I regard it as of the greatest importance that these provisions be enacted in the next session of Parliament. They should not be further postponed and I trust the Government will give them high priority in their programme for legislation".

We ask no more than that. The device of asking for a report from the Secretary of State within a month of Royal Assent is not intended as an amendment on which we would seek to divide the House. It is intended first to express our support for the Lord Chief Justice's view of how important it is that the criminal cases review authority should be included in legislation in the next Session.

Having consulted my honourable friends in another place, I am authorised to say to the Government, if it is any help to them in making final decisions about what legislation shall be brought forward, that provided, of course, that the legislation follows the thrust of the consultation document and subject to the fact that there are different options proposed in that consultation document—and we may not always agree about each of the options that the Government finally choose—it certainly is the Opposition's view that in both Houses we will give a fair wind to legislation to achieve that objective.

I hope that that will be helpful as a public statement of the position of the Labour Party in support of the criminal cases review authority which we consider to be central to the implementation of the report of the Royal Commission. We very much hope that time will be found for it in the Session of 1994–95. I beg to move.

Lord Harris of Greenwich

My Lords, I agree with everything that the noble Lord, Lord McIntosh said. I find it mildly surprising that we are having to say it at all. Just as the Lord Chief Justice indicated his concern in the matter only last week, it is right that we should register our concern today. After all, why was the recent Royal Commission set up? It was set up because of alleged miscarriages of justice, and it became clear that they were miscarriages of justice.

The recommendation of the Royal Commission was that such an authority should be set up. The Government have published their consultation paper and we welcome it. But it would, in my view, be quite deplorable were we not to have such a Bill introduced in the next Session of Parliament. I hope that the noble Earl will not say: "I cannot anticipate the contents of the Queen's Speech"—that favourite line which one has heard from different governments over many years. The fact is that there is now a serious expectation in Parliament that this legislation will receive priority. The amount of legislation put before this House at the beginning of a Session of Parliament tends to be rather limited in its scope. There was a substantial exception in the present Session, but normally the situation is that most significant Bills are introduced in the House of Commons rather than here. Given that fact, this seems to me to be just the sort of legislation that could be introduced in this House after the Queen's Speech. I very much hope that that will be done. The noble Earl should have no doubt, if in fact that is not done, that the Government will, in my view deservedly, come in for the most severe criticism.

11.15 p.m.

Earl Ferrers

My Lords, the amendment contem-plates a single review authority to examine alleged miscarriages throughout the United Kingdom and to refer appropriate cases to the court. I suggest that the amendment is unnecessary whichever jurisdiction one considers, although I realise that it is merely a device to enable us to discuss the subject matter.

Perhaps I may take first the position that the Government propose in England and Wales, where we have already made clear what we intend to do. My right honourable friend the Home Secretary announced last October that the Government had accepted the Royal Commission's recommendation that his powers to investigate alleged miscarriages of justice and to refer appropriate cases to the Court of Appeal should be removed and a new authority—a criminal cases review authority—which would be independent of both government and the courts should be set up to undertake those functions in his place.

A discussion paper setting out the Government's proposals in detail was issued last March. That paper invited comments on what was proposed. I know that many noble Lords have seen the paper; indeed, some noble Lords have responded to it either individually or through an organisation with which they are connected. We have received a lot of very helpful and constructive responses to the discussion paper. Those are currently being considered with a view to decisions being made on the final shape of the new arrangements.

I fully understand the desire that has been expressed this evening in this House and which has been expressed in another place, as well as those views that have been expressed outside Parliament, that the new authority should be set up as quickly as possible. However, what we envisage amounts to quite a major constitutional change. Whatever new arrangements are put in place, we must fully think them out and ensure that they are soundly based. They must command the confidence of those who look to the new authority for assistance. They must command the confidence of practitioners in this area of the criminal justice system; and they must command the confidence of the public. It is vital that we should get matters right. That is why we have not attempted to include provisions to establish the proposed authority in this Bill but have consulted instead on the detailed proposals.

I know that there have been some recent speculative press articles. But your Lordships will know—even though the noble Lord, Lord Harris, does not like me to remind him—that I cannot speculate on the content of the legislative programme for next Session. What I can say, though, is that the Government remain fully committed to setting up the proposed authority for England and Wales and that we hope to bring forward legislation to establish it as soon as practicable.

With regard to Scotland, although the remit of the Royal Commission did not extend to Scotland noble Lords will recall that my right honourable friend the Secretary of State for Scotland undertook to consider the implications of its recommendations for the Scottish criminal justice system. In a consultation paper of February this year the Secretary of State for Scotland sought views on options for change to the procedures and the jurisdiction for considering alleged miscarriages of justice. Those procedures are broadly the same as those which apply at present in England and Wales.

I understand that the consultation exercise did not produce any widespread support for any change to the present arrangements in Scotland, notwithstanding the Government's intention to establish a criminal cases review authority in England and Wales. As a result, my right honourable friend the Secretary of State for Scotland indicated in his White Paper, published on 27th June, that for the time being he will continue to exercise his powers to refer cases to the Appeal Court in Scotland in considering petitions which allege miscarriages of justice.

The Government do not rule out the possibility of change in this area in Scotland. The White Paper also announced that further consideration of the issues was required and that the Government intended to appoint an independent committee to look at them and the related issue of the consideration of appeals by the Appeal Court in Scotland in detail. An announcement will be made shortly on the membership and the remit of the committee. But we intend that it should include a member of the senior judiciary and others with knowledge and experience of the Scottish criminal justice law.

With regard to the position in Northern Ireland, many noble Lords will know that my right honourable friend the Secretary of State for Northern Ireland has also considered the implications of the Royal Commission's recommendations for the criminal justice system there. My right honourable friend issued at the beginning of June his own discussion paper Criminal Appeals and Arrangements for dealing with Alleged Miscarriages of Justice in Northern Ireland. The paper seeks public comments by 15th July. It canvasses a range of possible new arrangements for Northern Ireland. I understand that my right honourable friend intends to decide what future arrangements should be made in Northern Ireland in the light of the responses to the paper.

I hope that what I have said tonight will reassure noble Lords that we are firmly committed to establishing the new criminal cases review authority for England and Wales. But of course I cannot anticipate what will be in the Queen's Speech.

Lord McIntosh of Haringey

My Lords, I could not have expected the Minister to go further than he hats done so far as concerns England and Wales. I am disappointed—and it shows my ignorance, for which I am culpable—as to his responses for Scotland and Northern Ireland. I should have known of those consultation documents and that it was the position of the Secretaries of State concerned that there was not perhaps the same urgency as there is thought to be in England and Wales.

I am particularly disappointed in what I heard about the thinking of the Secretary of State for Scotland. As my amendment makes clear, it is important that similar bodies should be set up for the whole of the United Kingdom. In the end it would be an absurdity if the Home Office were to divest itself of this onerous and not always very well conducted task to an independent body, as has been accepted by the Home Secretary, only to find that the Secretary of State for Scotland retained the same powers.

I believe that the Minister understands very well what we are trying to do with the amendment. We did not expect a commitment. We are saying to the Minister, "Here he is. With admirable fortitude he has dealt with three heavily contested Bills this Session. Next Session, would he not like a Bill on which we are all working together with the same objective?" I hope that he will be tempted by that prospect. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Annaly

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.