§ 8.34 p.m.
The Earl of Halsbury
My Lords, I beg to move that this Bill be now read a second time.
The Bill is concerned with one issue only: how to define the word "obscenity", which reads across to no less than 10 other statutes, possibly more. The word "obscene" has its origins in Latin and literally means "off stage". It was applied, for instance, to the murder of Agamemnon by his wife Clytemnestra in Aeschylus, and to the blinding of Gloucester in Shakespeare's play "King Lear". It was thought that those acts were too violent for an audience to watch in any sort of detail. The word has slightly changed its meaning in modern times. It now stands for almost anything of a rather questionable character. I am concerned tonight with its definition in the Obscene Publications Acts 1959 and 1964, which give the word its latest and most obscure definition.
I preface my remarks by explaining how I became involved in this issue. The noble Baroness, Lady Cox, whom I am sorry not to see in her place, was approached by a working group seeking some kind of parliamentary status. Owing to her many activities she was unable to take that on, but she asked me to stand in for her on this occasion. The working group included some good names: Mr. Charles Colchester, the chief executive of Christian Action Research and Education (CARE), and the Reverend Dr. Clifford Hill for the Centre for Contemporary Ministry. Their names will recur from time to time. They were both known to me. However, I had to remember that I am a member of the all-party committee of both Houses, the Family and Child Protection Group. I therefore approached its chairman, Dame Jill Knight, MP, and asked if I might act for her in responding to the request by the noble Baroness, Lady Cox. She was agreeable.
I therefore set about providing what might be termed ammunition and rations for the working party: providing it with a secretariat, a room in which to meet and so on. In due course it came up with the report, Violence and Pornography in the Media, which was the subject of a press conference on 25th July. It was accepted on behalf of the all-party committee. I have placed several copies in the Library and given a number of copies to my friends. So much for the history of the matter.
During the course of its sittings, the working party attended an exposition by Superintendent Michael Hoskins of the Metropolitan Police service, I Area Clubs and Vice Unit. We were given a sighting of the sort of pornography we are talking about and for which we need to legislate. I was frankly horrified at the disgusting character of what we saw. I shall not offend your Lordships' imagination by describing it in poetic detail, but it convinced me of the need for a change in the law.
I accordingly sought words with the noble Baroness, Lady Blatch, who very kindly put me in touch with those at the Home Office who deal with the matter. I acquainted them with the fact that, unless the Government took some action, I should take action on 1594 my own. I said that they must include it in the Queen's Speech or I should introduce a Bill myself. In the debate on the loyal Address I told the House that since the matter was not included I should do the job myself. I have been working on it ever since.
The report of the working party showed, through an opinion poll, that the public is increasingly disturbed by the amount of violence and pornography on television. Only a week ago, after the Secretary of State for National Heritage talked to broadcasters about the portrayal of violence in the media, the Prime Minister raised the difficult question that faces all of us when in another place he said:There is a difficult balance to keep in ensuring that we have free and open media and that they maintain the standards that are appropriate for society generally and for children".That is what we are talking about tonight. I commend the noble Lord, Lord Chalfont, on his earlier debate today on the role of the media. I am concerned about the media and the need to maintain standards for society generally. I believe that the current law on obscenity fails to do that.
I come now to the crux of the matter: definitions. Those who study linguistics recognise various classes of definition. There are lexical definitions in which we explain words by means of other words, as in a dictionary. Obviously the process of defining words by means of other words cannot go on indefinitely, so we come to the next set of definitions which are known as "ostensive" definitions, from the Latin word ostendere, to show. "This is a walking stick". That is how we teach children their mother tongue. "That is a pussycat", and so on. There are other contextual methods of defining words, but the lexical and ostensive kinds are all that I shall refer to this evening.
The current law defines obscenity lexically by linking it to two other words: namely, "corruption" and "depravity". This is a gift to defence counsel. He only has to turn to the jury and say: "Well, members of the Jury, you have read the material. Do you feel corrupted and depraved by it? I am not asking whether you feel disgusted and revolted. That is another matter altogether. But does it make you feel you want to go on seeing more of it?" Without leaving the box, the jury say, "No, of course not. It is disgusting and revolting. But that is not the same as corrupting and depraving", so there is an acquittal.
In the course of a debate in January 1980, 16 years ago, I was persuaded by my very old and dear friend the late Lord Nugent of Guildford to take part in a debate. I suggested that we should try an ostensive definition of obscenity by listing all sexual activities and perversions thereof. The items on the list would be the definition of obscenity.
In drafting a Bill of this kind, one has to be careful not to fall foul of a principle of construction which goes by the name of a Latin tag: citatio unius exclusio alterius. If you cite one action you exclude another. If you include one named action, you exclude any others that are not in the list. For example, if, when referring to a list of animals, they are all members of one species, you can name the species and thereby cover all its 1595 members. But if, to give emphasis to one particular breed within the species you cite just one member, then you exclude all the others.
My preliminary drafts accordingly ran into the difficulty of citing all the sexual perversions there could possibly be and ran into difficulties with the length of the list. I could, of course, have quoted the index of Krafft-Ebbings' Psycopathologia Sexualis, but that is no way to draft a statute. So I ask your Lordships to agree to a small number of independent groups of sexual activity, without giving examples.
I turn to Clause 1(2) of my Bill which lists them:(a) human sexual activity or acts of force or restraint associated with such activity;(b) human genital organs or human urinary or excretory functions".I did not think those words up, they come from the Local Government (Miscellaneous Provisions) Act 1982 which permitted the setting up of sex shops and sex cinemas. So for the purpose of the Bill I am merely borrowing words from another Act. There can be nothing very wrong about that. The same local government Act specifies that a licence under the sex shop act is not a defence for any other offence for which a person might be prosecuted. By citing the words in the present Obscene Publications (Amendment) Act, I exclude all the products of all sex shops because they can no longer be used in a defence. So this is not invention by me, I am exploiting words in another Act.
Clause 1(2) of my Bill continues the list:(c) any act which would be a sexual offence if carried out in practice".That is most important. Noble Lords will find a list of sexual offences in another statute, the criminal proceedings Act 1991, in which the words "sexual offences" are included. Again, I am using another Act of Parliament to define obscenity in the context of this Bill. Lastly, Clause 1(2) lists:(d) mutilation or torture of, or other acts of gross violence towards, humans or animals".Perhaps I may say a few words about "sexual activity". It would be for the jury to decide whether a particular act was a sexual activity. For example, with kissing, a cheek to cheek kissing between parents and children would obviously not be a sexual activity. With a prolonged open-mouthed kiss as a prelude to copulation, it would be for the jury to decide yes or no. I shall not try to put it into an Act of Parliament.
But deciding on whether an activity falls into the list is not the end of the matter. For the material to be deemed to be obscene, it must be portrayed,in a manner which a reasonable person would regard as grossly offensive".So the jury would have to consider that too. The words I have chosen for the test of obscenity are not arbitrary.
Turning to the qualification,In a manner which a reasonable person would regard as grossly offensive",I am sure that noble Lords will recognise that it is a piece of legal formalism which occurs in Act after Act. A student would know that the eminent Member of the 1596 other place, Mr. A. P. Herbert, wrote some highly amusing articles in Punch on the characteristics of the reasonable person. Of course, that must be left to the jury.
That concludes what I have to say about the Bill. I wish to thank all those who have supported and helped me in its drafting and who are here tonight. I beg to move.
Moved, That the Bill be now read a second time.—(The Earl of Halsbury.)
§ 8.47 p.m.
§ The Earl of Longford
My Lords, first I wish to offer strong support to the noble Earl, Lord Halsbury. It would be an impertinence to refer to the intellectual quality of the Bill, bearing in mind that the noble Earl has been for many years the chancellor of a famous university. I was going to say that he had been chancellor of a university longer than anyone alive. However, he tells me in all modesty that the Duke of Edinburgh surpasses him, which is hardly fair competition. In any ordinary sense he must be thought to hold the record for being chancellor of a university.
The noble Earl's great-grandfather was Lord Chancellor for longer than anyone else. The noble and learned Lord, Lord Hailsham, may have been Lord Chancellor for longer in this century, but the record overall still belongs to the noble Earl's great-grandfather. So he is just the kind of eminent man who ought to lead the renewed struggle against obscenity.
I know that the noble Earl agrees with me that there is one name which should never be forgotten in this connection: Mary Whitehouse, the Boadicea of the whole effort over the past 30 years. I spoke to her tonight. She has not been in good health lately; I am afraid that she is laid up at home. However, she is as indomitable as ever and wants a message to come to us that no more effective step could be taken to help to halt what she calls the moral decay and to find an effective law against pornography. I do not know that she has studied the details of the noble Earl's proposals, but she is with him, heart and soul.
I have a rather senile record in this field. In 1971 I opened the first debate on pornography in this House with words which still seem to me to sum up the matter. A diet of filth, I said, corrupts a nation. I set up a committee which included eminent people such as the noble Lord, Lord Coggan, who was then Archbishop of York but later became Archbishop of Canterbury, Malcolm Muggeridge, Peregrine Worsthorne, Kingsley Amis, Cliff Richard and all kinds of wonderful people. Some of us at least investigated and poked our noises into the most horrible places: the dirty shows in Soho, and worse. Some of us, including myself, went to Copenhagen and the centre of pornography. I at least walked out of two sex shows—the kind of shows to which the noble Earl referred in his speech. I remember that at the end of that period a taxi driver asked me, "Excuse me, sir, I can never remember your name. I know you are "Lord Porn" but have you got another name?" That was the kind of reputation I achieved in that period.
1597 In later years I am afraid that I come under the description referred to by Lloyd George who said that the best introduction to a speech he could remember was made by Senator Bryan of America:Some will say that I have run my course; some will say that I have not fought the fight; but no one can say that I have not kept the faith.In my humble way I can say that that is true, and I have the pleasure of being an acolyte of the noble Earl this evening.
In those days, it was quite difficult. Mary Whitehouse and I, for example, went to the Cambridge Union. A dead cat was lowered on top of Mary. She had a bad time in various parts of the world. She was, of course, indomitable as ever. Although, as I said, things are much better now, not so long ago her life was threatened. She was pinned down in her house under guard because of some terrible threats. So it has not been all fun and games for opponents of pornography.
It is much easier these days. In recent years Mary Whitehouse has won many debates at universities; I too have won several. On the whole, the enlightened young people of today are much more intelligent than they were 25 years ago, in particular young women. The feminists of today are anti-pornography. They see it as the horrifying exploitation of women. Today at university one can win a debate with only the support of young ladies.
There has been another big change over the years; namely, the emergence of violence. Violence is vastly more severe in this country today. Violent crime has much increased. When we produced our report in 1972, only one chapter was given to violence. Producing a similar volume today one would have to devote half of it to violence. That has turned many people against pornography who were quite ready to snigger at a bit of sexual licence.
On the other hand, as the noble Earl indicated and as, no doubt, others will mention at much greater length, technological developments have given pornographers a new opportunity of which they are making use. We have to try to cope with that. Mary Whitehouse agrees that new and much more stringent measures must be taken to cope with pornography. I agree entirely and I support the noble Earl.
It is, of course, difficult to know exactly what to do. It will always be difficult to find exactly the right course. It is perfectly true that it is very hard to prove before a jury—certainly a jury that is not biased in one's favour—that any particular piece of pornography can deprave or corrupt. Therefore, one has to find something else. The noble Earl selected certain aspects of pornography which can be tackled so long as they are found objectionable to a reasonable person. That will always remain a difficult area. What is a reasonable person?
I have brought with me to the House a newspaper which I am sure most noble Lords have never heard of. It is called the Sport. I should not like to ask for it in the Library; my motives might be misunderstood. There is, however, a daily paper on sale called the Sport. It is what I call a pornographic rag. It may well come under 1598 the particular classification indicated by the noble Earl Certainly, as a paper, I would regard it as highly objectionable. But all sorts of things are highly objectionable. I find much of the tabloid press—and some of the rest of the press too—highly objectionable. Much of it is very unpleasant. It is cruel and inaccurate about prominent people: the Royal Family, politicians of various parties and well-known prisoners. One can find many things objectionable and one cannot ban them all by law. However, the noble Earl has selected certain forms of activity which could be tackled in that way. I, for one, strongly support him.
§ 8.55 p.m.
§ The Lord Bishop of Bristol
My Lords, I thank the noble Earl for his introduction. The issues with which he is concerned in this Bill are shared by many people certainly within the Church of England. In the General Synod, which will meet in York in July this coming year, Mrs. Margaret Brown has a private member's Motion, which will certainly be debated, under the heading of "Sex, Violence and Blasphemy in the Media". I believe that other people share that growing concern.
The Board of Social Responsibility in the Church of England would agree with the Pornography and Violence Research Trust that there is a worrying level of violence and sadism as well as sexual pornography in videos, computer material and late night satellite television. That material is largely promoted by, as my brief says, greed—but to begin with I should like to use the word "profit" and allow the word "greed" to follow, for a video costing 97p to make sells for £12 or more. One can see there the profit levels. The Pornography and Violence Research Trust is also correct to argue that it is impossible to prove causal links between watching certain depictions and the commission of imitative acts. That simply cannot be proved. What can be discussed is that some elements of popular culture are heavily saturated with images of sadism and cruelty. Violence becomes acceptable. At the same time, it is easy to forget that it is fantasy. It is neither literature nor paintings nor drawings but acting by real people, who then extend the limits of what is acceptable into everyday life.
The strategy used by novelists—or even a painting by Turner—is that those acts are placed in a moral context. There is comment by the character involved, by the author or by the depiction of other characters showing emotion—for example, women searching for their dead and weeping on the battlefield of Waterloo, which is Turner's picture in the Tate. But a film depicting a violent rape ultimately enjoyed by a woman crosses the boundaries for it portrays it as something of an acceptable action, though it is one which I believe we would all want to condemn.
The main religious communities of our world—especially in this, our own country—of Islam, Judaism and Christianity would all agree that obscenity is defined by it being an assault upon human values. It is the deliberate attempt to distort human dignity and personality, which we believe are God-given gifts. For Christians, the value of relationship and reason 1599 constitute the image of God in humanity and the Christian tradition has always emphasised the importance of moral freedom if people are to grow toward maturity: moral freedom—growth toward maturity. However, there are times when that freedom needs to be restricted by legislation.
The crucial questions are how to control that and how to draw the line between artistic creativity and pornography. At the present time, the 1959 Act is in place. There are many—I include myself among them—who would argue that it is perhaps not sufficient. It defines obscenity as material which has a "tendency to deprave and corrupt" those likely to see, hear or read it.
That legislation is not used by the Crown Prosecution Service. We have checked that with a recently retired senior solicitor in the Metropolitan Police. It is believed to be too subjective and there are therefore declining numbers of prosecutions and an unwillingness to convict. However, despite the way I would wish to commend the issue, I wonder whether the proposed Bill takes us any further. The definition,Sexual activity … which a reasonable person would regard as grossly offensive",many believe to be a lawyer's paradise. Who defines what or who is reasonable or offensive? We are back where the problem really resides; that is, facing the issue of answering a subjective question.
It gives me great pain to say that. I believe, along with many other noble Lords in this House, that pornography is a serious matter. It corrupts nations and is not something of which we can be proud. Perhaps therefore we should try to find some other ways forward. One may be to encourage the Government to proscribe further late night television programmes beamed in from the Continent by satellite. I was surprised to discover that the 1990 Broadcasting Act, Sections 177 and 178, proscribes publication of pornography by satellite or Internet, but only where they originate in the United Kingdom. The receiving of satellite or computer pornography is not an offence, except for child pornography. If it can be an offence to publish child pornography, why cannot that provision be further extended, used and implemented? There are elements which the Government are able to initiate and take further which will help to deal with the problem. They may not solve it, but they may take the situation one stage further.
The second way forward is to define specifically certain actions as pornographic, and the noble Earl pointed out to us the difficulties of trying to do that. It will indeed be extremely tricky. It will require concrete illustrations of torture and sexual violence.
The third way forward is industry self-regulation. The noble Lord, Lord Chalfont, in the first debate we had this afternoon, indicated that within terms of the media that was perhaps the best way forward. Whether or not we can rely on that self-regulation is another matter. But if knives can be proscribed—with again the problems of definition—cannot the industry try to police itself better?
1600 Let me come to one of the problems we face in any legislation; that is, the balance between retaining creativity and artistic self-expression as a vital part of human activity and community life and deciding where the line is drawn in regard to pornography. There have been great artistic portrayals of violence, cruelty and sexual relationships—Goya's "Disasters of War"—Lawrence's novels and, on stage, as has been indicated already, the blinding of Gloucester in "King Lear". All elicit either pity, in the case of violence, or deep emotion in the case of sexuality. They appeal to our shared humanity. They enlarge our sympathy and show that what happened to those people may happen to others, including ourselves. We need that in order to be a civilised society, for it holds up a mirror to our own activities and our own perceptions of what is happening. Furthermore, the Holocaust shows the dangers of totalitarianism and censorship of the press. Trying to draw the line that does not destroy artistic self-expression and creativity and yet rightly deals with pornography and obscenity is still an issue to which we have not yet found an answer.
What do we commend? I regret to say that I do not believe the present Bill will do. We need a wider debate on these issues. In the short term, the Government could use the legislation that is already in place in such a way that we could limit the way in which pornography is disseminated, and the development of obscenity could at least be curbed. Perhaps I may give your Lordships an example.
Eutel satellite channels make pornography available to the United Kingdom viewers between the hours of 1 1pm and 3am. It is interesting to note the time—in the dark of the night. Three hard-core porn channels can be accessed on two Eutel satellites. Non-subscribers can receive 15 minutes unencrypted viewing. Sometimes the further material is also unencrypted. Two of the channels sell decoders and cards widely through shops and advertise them as well.
In the Convention for the Protection of Human Rights and Fundamental Freedoms Article 12(a) stipulates that television advertising shall not prejudice respect for human dignity; and Article 16 states that television advertising shall not cause moral or physical detriment to minors. Nowhere does it say that the advertising channel is exempt from commercial advertising and there are therefore already in place certain elements which will allow us to take steps if we are willing to apply the law as it already stands and the conventions to which we have committed ourselves.
There is no doubt that obscenity is a serious matter and one which we must address. I hope your Lordships are under no illusion that there is any acceptance, weak or otherwise, of the growing cancer of obscenity which is to be found in parts of the media, and certainly through satellites and the Internet. We do not believe that this Bill is the right way forward. We need a better way, but in the meantime we need to apply the law which is already in place.
§ 9.6 p.m.
§ Viscount Brentford
My Lords, I am grateful to the noble Earl, Lord Halsbury, for introducing this Bill. I am also grateful to the noble Earl, Lord Longford, for his reminder of the history behind this long-running subject; and the right reverend Prelate gave us a great deal to think about in all that he said. I go a long way with him on a number of points but not on everything.
Pornography is a subject which some people wish to encourage and others to discourage. My belief is that it should be discouraged. Psychotherapists suggest that it affects a number of people in four different ongoing stages. First, an individual may become addicted to pornography; secondly, the addiction may escalate so that the person needs harder material; thirdly, the individual becomes desensitised, which appears to mean that he can no longer tell the difference between what is right and what is wrong in his actions; and, finally, he needs to act out his fantasies—it is usually men—on real women, possibly passing over the barrier into criminal practice.
Perhaps I may illustrate this with the example of a certain Mr. Ted Bundy, an American serial killer, who admitted murdering more than two dozen women. He was put to death in America in January 1989. He explained how repeated exposure to pornographic and violent material led to desensitisation to the point where he could brutally murder women and children. He explained how he had started off using soft pornography as a young teenager, moved on to harder material, and then more extreme pornography until that could not satisfy his sexual desires. He then started to act out what he saw in pornography in real life and committed a serious sexual assault. In a final interview just before his execution he said:Listen, I'm no social scientist and I haven't done a survey … but I have lived in prison for a long time now. And I've met a lot of men who were motivated to commit violence just like me. And without exception every one of them was deeply involved in pornography—without question, without exception—deeply influenced and consumed by an addiction to pornography".The current test under the present law is, as several noble Lords have said, whether it tends to deprave and corrupt persons likely to read it. Over the years I have heard a number of people say that a smart defence lawyer will butter up the jury, tell them what mature and sensible people they are and then ask them, "Were you depraved and corrupted by what you have seen or what you have read? Of course you were not". It takes a very brave and bold juryman to say, "Yes, sir, I was depraved and corrupted by what I saw", because that will be seen as a sign of weakness. The test has not worked for years. Prosecutors are finding themselves in more and more difficult situations and prosecutions are becoming fewer.
I believe that the present law is bad and ineffective. Therefore, there are only two options left. One is to abolish it and the other is to change it. I am certain that the country does not want to see the Obscene Publications Act abolished. Therefore, the only option is to change it. The right reverend Prelate has asked for discussion. This has been discussed up and down the country for years. I fully agree that a change in the law is extremely difficult. What is the right course to adopt?
1602 The present Bill gives a twofold test, which is one way to tackle the problem. First, there is the content of the material and, secondly, whether it is grossly offensive to a reasonable man. I can certainly envisage quite a number of acts which fall foul of the content test but which the reasonable man would not consider to be grossly offensive. I do not believe it would be grossly offensive to see someone taking a shower or to watch a person painting someone who was wearing no clothes. I do not see any problem in that. When I first heard a discussion of the topic the police were arguing for a list of items that should be proscribed. While I accept the view that the noble Earl, Lord Halsbury, gave that that would be bound to lead to exceptions, I personally would probably prefer that. However, the important thing is for us to attempt some change in this extremely difficult field and see whether it works. I would greatly prefer the Bill, and therefore support it, rather than continue with the law as it stands.
I conclude by referring to the 1990 Home Office study on this subject. It is the duty of Parliament to protect the public from the risks and dangers of obscenity just as parliament is taking action currently to protect people under the Firearms (Amendment) Bill. I shall not pass any judgment on that or discuss it at the moment, but it illustrates the fact that Parliament has a duty to act. Perhaps I may read the final paragraph of the Home Office study on pornography. It states:At the end of the day, it is difficult to believe that a society can really afford to embrace pornography with welcoming arms since this may serve to legitimise those attitudes which pornography itself may reinforce. The question must be considered to be wider than just prohibition or other forms of control alone, but how to promote those attitudes and values which undermine pornography's potential influence".The first step in dealing with the problem is for Parliament to pass legislation that will be effective in endorsing what the public requires and in prohibiting what the public considers to be grossly offensive. The second stage is the promotion of positive attitudes and values around the country. We discussed that issue last week in our debate on the role of the family. I believe that there is a job here for the media. If I had had the fortitude of the right reverend Prelate the Bishop of Bristol, who has spoken in all three debates this afternoon, I should have mentioned that point earlier. Turning to the two right reverend Prelates who are present, perhaps I may say that there is a role here for the Church also, as well as for educators and the media, in promoting those positive attitudes and values which can undermine the potential influence of pornography.
Having said that, I believe that the ball must start here in Parliament, which must provide a law that is enforceable. For that reason, I support the Bill, even if we decide to amend it in Committee.
§ 9.14 p.m.
§ Lord Ashbourne
My Lords, I shall not detain your Lordships long, but I wish to start by thanking the noble Earl, Lord Halsbury, for introducing this Bill. We have known for many years that the Obscene Publications Act 1959 has been causing concern among law enforcement agencies, so I pay tribute to the noble Earl for introducing this Bill to amend the current outdated test 1603 of a tendency "to deprave and corrupt" with a more readily understandable and objective test. This should make it easier to convict those producing or distributing some of the worst types of pornography, which are not being judged obscene under the current law. I also commend the work that he did over the summer by chairing the working group of the All-Party Parliamentary Family and Child Protection Group.
I am concerned about the media portrayal of children, women and men and the sexual relationship. I believe that the sexual relationship between a man and a woman was given by God for pleasure and for strengthening that relationship. So often the portrayal of sexual relationships in pornography seems to have the opposite effect. I feel concerned about the sort of relationships and treatment of women, in particular, that we are promoting by allowing some of the more extreme material to be judged as legally available.
I am sure that those members of the general public questioned earlier in the year in the survey commissioned by the All-Party Parliamentary Family and Child Protection Group will also be supporting the noble Earl, Lord Halsbury, tonight. When asked if they believed that the use of pornography is harmless and has no serious effect on those who have a taste for it, 60 per cent. disagreed. This House has the privilege tonight of sending a signal to society that this sort of material is not acceptable.
I congratulate the noble Earl, Lord Halsbury, on ensuring that the important subject of violence is not left out of this Bill by its inclusion in the list and I am sure that that will be appreciated by many people around the country. It surely follows logically from all the initiatives that are going on to tackle violence on the screen that the most extreme,mutilation or torture of, or other acts of gross violence towards, humans or animals",should be regarded as obscene, if the violence is portrayed,in a manner which a reasonable person would regard as grossly offensive".Last week, the Director of the British Board of Film Classification said that the board is doing all that it can to deal with violence and that the current content of films stems from the Hollywood culture of violence. I hope this House will say tonight that enough is enough.
We have heard too much recently about child pornography and the Internet. In strengthening the law on obscenity in this Bill, it will be easier to convict in cases where violent and/or pornographic material is available on the Internet. I am pleased to note that this Bill will deal with child pornography when it is in the form of sexually explicit stories, which, I understand, can be obtained on the Internet also.
This Bill comes at a very important time, and I urge Members of this House from all sides to support the noble Earl in bringing in a much-needed reform.
§ 9.18 p.m.
§ Lord McIntosh of Haringey
My Lords, when speaking about a Private Member's Bill, as always I preface my remarks by saying that in this matter I speak for myself, not for my party. Indeed, I expect that there will be as wide a range of views on this issue in my party as there is in all parties and among those with no party affiliation. I have immediate evidence of that from the views of my noble friend Lord Longford, with whose views, like, I am afraid, the views of a number of noble Lords who have already spoken, I disagree. However, I assure your Lordships that the fact that I come to a different conclusion from some of those who have spoken does not mean that I treat the matter any less seriously than they do. It is incumbent on all of us to look at the present state of the law and to consider seriously whether it is defective in any way either because it is too restrictive or not sufficiently restrictive, to consider the alternative solutions proposed by the noble Earl in his Bill and to look at a realistic way forward to achieve the objectives that all of us believe are desirable.
I am at one with a number of noble Lords who have spoken in agreeing that the Obscene Publications Act 1959 does not work as originally intended. Many of those who have to implement that Act have come to that conclusion, and it is difficult to dissent from it. The particular phrase used in the 1959 Act, which was extended in the 1964 Act, is "a tendency to deprave and corrupt". That phrase was not new in 1959. It first featured in our law in 1868. The noble Earl, Lord Halsbury, made the important point that there was a difference between that and being shocked and disgusted. I believe that Mr. Justice Stable in the Philanderer case in 1956 was the first to make that point strongly to the jury.
One can agree that it is very difficult to persuade juries that they themselves have been depraved and corrupted by the material that is before the courts. In 1962 in Clayton v. Halsey it was ruled, and became law, that no amount of exposure to pornography could corrupt a policeman. When the chairman of the Arts Council established a working party on the operation of the Act in 1968-69—which, incidentally, came to the unanimous view that the law was too restrictive—one of the people questioned was the then Suffragan Bishop of Woolwich, now the right reverend Prelate the Bishop of Liverpool. He was the only person that the working party could find who said that he had been depraved by reading or seeing pornography. Quite rightly, they did not believe him. All of us who know him know that that is not true.
The difficulty about the 1959 law is that it makes it a punishable offence to induce things that are not in themselves criminal. There is an alternative to the obscenity rule and that is the indecency rule. That is important for the transmission under the Post Offices Act of material which the noble Earl might well consider to be obscene. The point of raising the question of indecency is not because that matter features in the Bill but that it raises criteria that are important in understanding the issue with which we are dealing. The quality of indecency is readily inferred from the 1605 defendant's motive of sexual gratification. When looking at issues of indecency the two matters that must be taken into account are the intention of the perpetrator of the alleged indecent act and the setting in which it takes place. Clearly, some physical actions that are entirely appropriate in a doctor's surgery would not be appropriate on a London bus. That applies much more widely. Unless the definition of obscenity or indecency that we use takes into account intention or setting, it will be a defective definition.
It is a myth to believe that there can be a recognised standard of public opinion to which we can appeal. Public opinion has changed greatly over the years. One of the problems faced by supporters of the 1959 Act is that juries have increasingly been unwilling to convict not only because of the difficulties of definition in the Act but perhaps also because public opinion itself has changed over the years. Those who have conducted research into violent and sexual material on television, films and videos have found increasingly over the years that people are becoming—in my view, rightly—more intolerant of violence but less intolerant of the depiction of sexual activity. That, whether we like it or not, is a fact of public opinion, and such things change.
I come now to my second point, which is the wording of the Bill. I am afraid that the noble Earl's attempt to use an ostensive definition, instead of the definition used in the 1959 Act, is doomed to failure, but it is not doomed to failure just because of any defect in the ostensive definition itself. I would say on that point only that the definition includes acts which are themselves legal, and, indeed, in terms of human sexual activity some of us would say desirable, and lump them together with acts which are illegal acts of violence or torture. Because the Act is concerned with articles, which includes words as well as pictures, it is difficult to apply those ostensive definitions equally to words and to pictures. They are clearly designed for pictures rather than words, and it would be a matter of opinion whether they applied to words.
Then of course the attempt to rely upon ostensive definitions falls because the noble Earl is forced to use words such as "reasonable person". Who is a reasonable person? The 1959 Act says that it is someone who is likely to see the material or read it. Surely that is much more likely to be an effective definition than a "reasonable person", which could be anyone. And then "grossly offensive": what is "grossly offensive"? That will change over the years. Juries will be required to make judgments which it is inappropriate for them to make.
Again, in Clause 2, the noble Earl uses the phrase:fully justified as being for the good of the public as a whole".One thing we know about the public on these matters is that there is no "public as a whole". There are lots of different publics with different views and different levels of sensitivity. I am sorry: I appreciate the sincerity of the noble Earl and those who have spoken in support of the Bill, but it will not work.
Perhaps I may for one minute turn to what I think is valuable and what I think should be preserved. In saying that these proposed changes are undesirable, 1606 we should not lose sight of the desirability—indeed, the essential availability—of classification and, in certain circumstances, censorship, particularly in the broadcasting of film, video and computer-generated material. Our criteria for those should be the protection of the vulnerable—in particular, of women and children—both in the audience and as participants in the acts which are displayed. If we concentrate upon those matters, I believe that that is a more effective way forward.
I am afraid that it is not enough to rely upon illegal acts, because illegal acts, after all, have changed in the law. The Criminal Justice Act 1994 did for the first time legalise heterosexual anal intercourse. Are we going to change our views on censorship entirely as a result of that change in the law? No, let us stick to what we know works—the protection of the vulnerable. Let us not be diverted into the issues unfortunately but well meaningly raised in the Bill.
§ 9.29 p.m.
The Earl of Courtown
My Lords, I am sure that the whole House will be grateful to the noble Earl for bringing this subject before your Lordships this evening. The opportunity this Bill provides to debate this important issue is welcome. The debate has been most interesting. The issue of obscenity, and the extent of the controls which it is appropriate for society to exercise over the availability of certain sorts of material, is clearly a difficult and a sensitive one. The subject raises issues of morality and public decency; it touches on the relationship between the interests of the individual and those of society at large; and it involves complex questions of the role and effectiveness of the criminal law in a changing society.
The noble Earl has brought all these issues before your Lordships by virtue of the Bill which he has introduced. With characteristic clarity and conviction he has explained his concerns about the present situation and why he believes that changes to the law are needed.
Many of us in our private capacities may lament that anyone in our society should want to have available some of the material that is now regularly sold in our local newsagents and generally available in other ways; for example, by mail order. But that is not necessarily the same as concluding that the law should prohibit the availability of such material. The criminal law exists to prevent harm, to protect individual citizens and society itself from damaging behaviour and influences. Its function is not to impose the preferences of one section of society upon others unless there is clear evidence that damage may otherwise be caused.
The law relevant to this issue is the Obscene Publications Act 1959. At its heart is the proposition that material is obscene if it causes harm—that is to say, if its effect, if taken as a whole, is such as to tend to deprave and corrupt those persons who are likely to see, read or hear it. This test has been with us for a considerable time. Indeed, it was first formulated as common law in the 19th century and it has been the subject of debate whenever concerns have been 1607 expressed in this area. The fact that it has remained unchanged may testify to its strength: it certainly reflects the difficulty in finding anything better.
It is a flexible test, pointing the court to the balance which must be struck between penalising material which may have harmful effects on its audience and avoiding prohibition of genuinely artistic or scholarly material. There have been repeated attempts to find a different approach and the Government have kept the issue under continuing review. The fact that we have done so is an acknowledgement that the present position is not wholly satisfactory, and this is an issue which we ourselves are also concerned to address. This Bill provides opportunity to further that debate. Nevertheless, we have not yet been able to find a better alternative.
The Act is not moribund. In 1995 there were 356 prosecutions and 259 convictions, although there is concern that the nature of the material which falls below the threshold for prosecution has been growing steadily worse. And we have kept the law up to date with subsequent changes, particularly in regard to child pornography where our controls are among the toughest in the world. Nevertheless, the noble Earl has argued this evening that the law is ineffective. He believes that it has become impossible for the courts to apply the test in the 1959 Act and he argues that it is impossible to say with any certainty what will fall foul of its provisions.
We shall be listening extremely carefully to the debate in the hope that it will signal the way forward. Nevertheless, I have to tell your Lordships that we are not convinced that this Bill is right, for the following reasons. It would introduce a new general test of obscenity, supplemented by a widely drawn list of activities to be deemed, subject to the test, prima facie "obscene". This general test focuses on what is grossly offensive to reasonable people. I agree with the right reverend Prelate that that is where the difficulty lies. The term "gross offensiveness", for example, is no clearer in meaning than the "deprave and corrupt" test, and the Government's view is that juries would fall back upon their own judgment in deciding what was or was not obscene.
The test of gross offensiveness is not based on any consideration of harm to society and, as such, could leave the United Kingdom in breach of its obligations under the European Convention on Human Rights. "Harm" may be a justification for restricting freedom of speech; "offensive" may well not be. People may find many things "grossly offensive", including political opinions or even revisionist views of history.
The noble Earl has suggested that the test of the "reasonable person" is the key to resolving this problem. He has drawn attention to the frequent use of that test in the criminal law, not least in the Protection from Harassment Bill. But I believe that we are dealing with two very different situations. In his or her usual guise in the criminal law, the reasonable person could be anyone. We invite the courts to consider what any rational person would think in the circumstances. Whoever we chose, 1608 whether conservative or radical in their political or moral views, would come to the same conclusion. But it is a very different "reasonable person" whom we are asking to solve our problems in this case. The personal moral code of the individual concerned could fundamentally affect the judgment reached. I do not believe that this key test at the heart of the noble Earl's Bill would provide the courts with the certainty which they must have for the proposed legislation to work.
The Bill would also amend the current "public good" defence. Under Section 4 of the Obscene Publications Act 1959, it is a defence to the charge of publishing an obscene article if it is proved in court that its publication is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.
The noble Earl's Bill would amend this defence by substituting the words,fully justified as being for the good of the public as a wholefor,justified as being for the public good".This may not appear a major change, but it could have very significant effects. There is a possibility, for example, that it could make illegal some articles that are aimed at a minority group such as the safe sex leaflets aimed at young homosexuals. Those leaflets are explicit and expressed in a way which no doubt many people would find shocking. However, there is a clear need for public health reasons to provide this group with a safe sex message in a manner likely to attract their attention. The Bill might put that in jeopardy.
The right reverend Prelate mentioned the need for greater control to be exercised over pornographic TV and satellite broadcasts. The Government have used their powers in regard to three such foreign channels by making proscription orders against them. It is a criminal offence to supply smartcards, to advertise and to promote such channels.
I have outlined a number of reasons why the Government cannot support the terms of the Bill although, in keeping with the traditions of the House, we shall not oppose its Second Reading this evening. However, we welcome the opportunity which the noble Earl's Bill has provided to address a real problem about which we are concerned. We are open-minded and open to suggestions as to the way forward and hope that the Bill will act as a catalyst in bringing wise counsel to bear on this difficult issue. We shall certainly follow up any possible ways forward which may emerge from the debate.
§ 9.36 p.m.
The Earl of Halsbury
My Lords, first, I thank all those who have taken part in the debate. I am sorry that the right reverend Prelate had to leave but he had a train to catch. I shall reply by letter to his remarks after I have studied them in Hansard.
1609 I thank the noble Viscount, the noble Earl, and the noble Lord for their contributions. I remind your Lordships that there will be a Committee stage. If the Government do not actively oppose the Bill, I shall try to arrange a Committee stage where we can flog out those matters by means of amendments.
I am a trifle disappointed by the Government's reaction. They agree that the present situation is unsatisfactory but—I quote a familiar phrase—they seem eager to wound but afraid to strike. I wonder what it is they are afraid of. Do they think that the Bill in its present form would make matters worse?
1610 Are they concerned about the load on the criminal courts which will occur if pornography is prosecuted more intensively? Do I detect a sort of vague numinous presence of what I might call the Great Whore of Grub Street as specified by my noble friend in the previous debate this evening, brooding over our proceedings and threatening everyone with her disapproval? I do not know about that, but I ask your Lordships to give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
House adjourned at twenty-two minutes before ten o'clock.