§ 6.25 p.m.
The Earl of Halsbury
My Lords, I beg to move that the Bill be now read a second time. I do so somewhat nostalgically as I feel that this may be my swan song. Aged 91, I cannot believe that I shall be included among the 91 hereditary Peers on whom the axe will not fall in October, or whenever.
I begin by explaining how I became involved in this unsavoury subject. In about 1994, the noble Baroness, Lady Cox, finding herself overcommitted in the field of good works, asked me to take over a commitment that she had made which she found herself unable to fulfil. It was to chair a committee of inquiry into pornography, violence and the media. Being a member of the family child protection group whose chairman was the noble Baroness, Lady Knight, (then Dame Jill Knight), I felt that I could not take this matter on without her agreement. However, she decided to absorb that activity into the activities of her committee. So that was done. The noble Baroness was succeeded by the noble Lord, Lord Ashbourne, whom I am glad to see in his place. In due course we published the report.
It is no good publishing a report and leaving it at that. I felt that I was under some obligation to incorporate the recommendations of the report into a Bill which received its Second Reading in your Lordships' House in December 1996. It was overtaken in subsequent months by the impending general election which brought all business between the two Houses more or less to a standstill. During 1997–98, I was to some extent left on a free rein because I promised the incoming Government that I would not embarrass them with a controversial Bill during their first year of office; but that unless a measure was in the Queen's Speech preceding their second year of office I would resume my freedom of movement.
Accordingly, I embarked on a piece of research which had been on my mind for quite some time. Your Lordships may remember that a number of years ago an exhibition was put on by the police, I think in the Grand Committee Room, to instruct your Lordships and another place on the real bestialities which go on in the world of commercial pornography. In the course of discussions with a senior member of the vice squad—I cannot remember whether that expression applies to this country or America—I asked why he did not attempt an ostensive definition of pornography. The word ostensive is a linguistic expression derived from the Latin ostentare, to show. One teaches children the meaning of nouns by showing them what they stand for. One says "dog" and points to a dog; and one says "daffodil" and points to a daffodil. That is how children learn their basic vocabulary. So I asked, "Why don't 180 you make an ostensive list of all pornographic items which will appear in legislation?". He shook his head at me and said, "You would never come to the end of it. It simply could not be done".
Being at a standstill in 1997 and 1998, I decided to find out whether it could be done. I made friends with the secretary and the librarian at the Royal College of Psychiatry, which has a prestige address in Belgrave Square. On my way to the House for Questions each day, I called in at the Royal College and did some homework in the library. Shelves full of books went through my hands. I turned to the indices and read them through until I came across a familiar term. I then turned to the text to see what it was. If it was what I wanted, I wrote it down. That is the origin of the schedule to the Bill. I commend it to your Lordships as at least a piece of research which will be useful on a future occasion, even if your Lordships do not like the shape of the Bill.
I included in the Bill a preamble which, on the advice of friends, the Public Bill Office and the parliamentary draftsmen who advised, I have instead included in the text of the Bill. It may sound obscure, but I wrote as a preamble:Whereas the young or the innocent at any age may by chance or through curiosity or seduction be led to peruse matter listed in the schedule to this Act, habitual recourse to which for the purpose of enjoyment may lead to corruption and depravity and their harmful consequences … Be it enacted",and so forth. The essence of that appears in the middle of the Bill. If one ties the legislation only to corruption and depravity, defence counsel will turn to the jury and say, "You have read it. Do you feel corrupted and depraved?". Of course, no one feels corrupted and depraved by reading something for the first time. It is corrupting and depraving when one has habitual recourse to it for the purpose of enjoyment.
I used two terms; "the young" and "the innocent at any age". By "the innocent at any age" I had in mind, for instance, a young priest or a novice nun who might be of full legal age but has never seen the evil side of life and might come across it by accident; left behind in, say, the dentist's waiting room.
Having defined the Act, I had to make a list of activities, which appears in the Bill, engaged in circulating the obscenities. It can be imported; it can be manufactured in this country; it can be reproduced by some photographic process after it has been manufactured; and so forth. It is another list.
In the context of those lists, I came across a legal doctrine which needs a little understanding because it is in Latin. It is, citatio unius exclusio alterius, which means that in mentioning one thing one excludes the other. It applies particularly to the relationship between species and the members which constitute that species. If you want to make a selection of members, you just recite that phrase. If you want to have the whole species, you just recite that phrase. If you try to mix the; two and include the species and some of its members, you exclude all the others. I did not invent the doctrine; it is a legal doctrine about which I needed a great deal of help. By the time my advisers had finished with the Bill it was in a different state.
181 I have referred to this occasion as my swan song and I am reminded of a little jingle I heard when I was young:The swan, the poets say, before it dies doth sing,T' would be a better thingIf some performers die before they sing".I hope that my exposition will not make your Lordships believe that the Bill were better dead! I beg to move.
§ Moved, That the Bill be now read a second time. —(The Earl of Halsbury.)
§ 6.35 p.m.
§ Viscount Brentford
My Lords, I congratulate the noble Earl on his tenacity in returning to this subject once again and bringing it before your Lordships. He has been working on it for many years. I congratulate him also on his research enabling him to list in the Bill some 40 nouns and phrases. I further congratulate him on his opening speech and hope that the swan will continue to sing on many occasions, at least during the coming year.
The noble Earl said that, for him, the subject went back to 1994. I can claim that, for me, the subject goes back to the 1950s when my father, as a Member of another place, was a member of a committee which led to the Obscene Publications Act 1959. I have memories of travelling in our car to London with my parents. My father read some documents out aloud and my mother became highly emotive as we drove along the road, such was the language that was being read. Therefore, I have a remote interest to declare.
That legislation produced as a test "that which is likely to deprave and corrupt". The jury would be asked whether they felt depraved and corrupted by the material and counsel could wheel in sex therapists and sexologists to prove to them that the pornography could be helpful to impotent people and assist them in their sexual exploits. They would argue that it certainly did not deprave and corrupt.
Today, we must ask ourselves what values we wish to see permeated through the media and publications generally. Last night I watched a few minutes of a programme on sex education. It showed some teenage children who had indulged in sexual activity. Their parents were horrified by the fact that their son or daughter had met the person of the opposite sex only half an hour or so before engaging in sexual activity. Are our teenagers learning such values and, if so, from where? A television series about homosexuals tells a story of an adult male indulging in sexual activity with a 15 year-old (under-age) boy. I believe that that promulgates two values: first, that it is all right and positive to break the law; and, secondly, that sexual activity without a relationship is also positive and good.
What are the values that we wish to inculcate? Is pornography in any way contributing to our values? I believe that it is. It is a serious problem. Therefore, I welcome attempts to look again at this subject to see whether or not we can bring about some restrictions 182 which will enable publications to produce positive values and not what I believe are extremely negative ones.
We have the highest rate of teenage pregnancy in the world. Is that a fact of which Parliament can be proud? We should be tackling this subject again. Your Lordships' House is perhaps the best place to begin that work. Whether this skilful Bill is the best way in which to carry forward that work is a question open to mind. I can see great advantages in it because if any charges are brought under it, it will be necessary to determine questions of fact rather than of opinion.
In the past few years there has been mooted an alternative phrase—that which is offensive to a reasonable person. Should a phrase along those lines be the basis in law rather than having an all-embracing schedule of activities? I was under the impression that the Home Office felt quite warmly towards that phrase as an alternative method of trying to tackle the subject again. I shall be interested to know whether the Minister has any views on that. An ideal way to tackle the subject of obscenity today would be for the Government to include a new definition, one way or the other, in law.
The phrase "that which is offensive to a reasonable person" leaves the issue clearly before the jury as to what would be offensive to them. It takes away the role of the expert sexologists who say that no pornography depraves or corrupts. It is purely left to the jury to decide. I prefer that.
However, it is important to tackle the subject of obscenity one way or another to try to restrict it so that it is possible to stop the ever-increasing wave of obscenity which is hitting us from every direction. If our civilisation is to survive, we need to tackle the subject and curtail it so that we do not become one of the most depraved and corrupt nations in the world, which is the direction in which we are moving.
Therefore, I support the principle of the Bill. I look forward to hearing whether any noble Lord has other ideas as to the best way to tackle the subject. I warmly welcome the fact that the noble Earl has drawn attention to it.
§ 6.43 p.m.
§ Lord Annan
My Lords, I must congratulate the noble Earl on the charm with which he introduced the Bill. Anyone in his 90s, like the noble Earl, or even someone in his 80s, such as myself, has seen an enormous change in the nation's response to sexual morality. Things which were unmentionable in public, and just as unmentionable in the bosom of the family, are now bandied about in the media.
At the moment, it seems that we are a nation obsessed by sex. How did that come about? It is the result of 150 years or more of sexual repression. Towards the end of the 18th century, the influence of evangelical religion began to change public opinion. Restoration comedy, which was itself a reaction against Oliver Cromwell's diktats of closing the theatres, gave way to Sheridan's polite comedies; Fanny Hill gave way to Fanny Burney's novels. And then came the good Queen Victoria, who was repelled by the example of 183 her loose-living uncles and presided over an age of sexual repression. We all know of Thackeray's complaint that in his novels it was impossible any longer to depict a man. We all remembered Dickens's great characters—Mr. Podsnap and Mr. Pecksniff.
Things relaxed a little in the 1920s, but right up to the Second World War the details of sexual behaviour were still taboo. Even then, books were prosecuted, films censored to a degree unbelievable today and the visual arts were policed for obscenity.
Then came the Wolfenden Report and the passage of the Obscene Publications Act 1959. The dam burst. Prosecutions of novels like Lady Chatterley's Lover were thrown out by juries and the new game was to outdo one's rivals in shocking the public. After nearly two centuries of repression, is it any wonder that there has been such a violent reaction? Is it any wonder that all sorts of people revel in the fact that now they can see or read about things for so long forbidden?
I turn to the Bill. I was delighted by the noble Earl's account of the research that he had done, but I wondered whether he had read the report of the committee on obscenity and film censorship of 1979, Cmd No. 772. I ask because the Williams Report recognised, just like the noble Earl, that the present law is in a mess. Obscenity is not covered solely by the 1959 Act. A dozen or more Acts are involved—some prior to and some post 1959. In eight appendices, the workings of the present law were put under the microscope and the laws of other countries were examined. The report itself ran to 166 pages.
That committee considered that the terms "obscene", "indecent" and "depraved and corrupt" had outlived their usefulness in legislation. The law should be drafted on the basis of harm caused by the existence of the material in question. The public has a legitimate right and interest in not being offended, but harm alone can justify prohibition.
That means that only a small class of material should be forbidden to those who want it because it is not likely to cause harm. Moreover, the printed word should neither be restricted nor prohibited. It is not immediately offensive.
More important, the report argued that it would be an error to treat all the media uniformly. At paragraph 12.7 it stated:No one can dispute that reading a magazine, watching a live show and watching a film are three very different experiences".That was why, for example, the committee wanted a special board of film censorship to be set up.
The items to be banned were similar to those which the noble Earl cites in the schedule to his Bill; namely, sexual, faecal or urinary functions and genital organs and, in addition, scenes of violence, cruelty and horror. The restrictions should apply to matter or to a performance which is easily available. It shall no longer be a defence to say that an item had an intrinsic merit. As I read new Section 2A(4)(a) in the Bill, it still permits that kind of defence.
The Williams Committee went on to reiterate that the principal object of the law should be to prevent material 184 causing offence to reasonable people. Only a small class of material should be forbidden to those who want it. To carry prohibition further would be to go against the principle that an assessment must be made of the likely harm to people of an article that some may well dislike.
I hasten to reassure the House that I do not intend to summarise further the arguments and recommendations of the Williams Report. I merely wish to emphasise that to change the law relating to obscenity is a very complicated matter. The noble Earl's method of changing the law seems to be like detonating a landmine and blowing up everything. The Williams Committee preferred to identify targets and pick off those offending practices with a rifle.
I shall take one example from the Bill. New Section 2A cites certain exceptions to the kind of events that the Bill would criminalise. Among those is one provision that states that no offence would be committed if the article is published or publicly exhibited,in the interests of art, literature or science".These days the defence could argue that everything that the noble Earl deplores could be slotted under one of those three headings. Who has not seen pornography purporting to be a part of a sociological scientific study of certain practices? It is not only Lady Chatterley's Lover that would survive the accusation of praising anal intercourse. We have seen that juries will not convict simply because a book describes the kind of practices that the noble Earl cites in the schedule.
Finally, I cannot find in the Bill whether it would be illegal to simulate some of the acts in the schedule. We do not see coitus practised in films shown at the cinema, but we see it simulated all too often. If simulation is to be an offence, I believe that the noble Earl will achieve something far greater than Oliver Cromwell achieved, in that all cinemas would be closed and a good deal of television banned.
Of course, I do not intend to vote against the Second Reading of the Bill, nor will I oppose it in Committee or on Report unless the Government decide to endorse the Bill in another place. I await the Government's view with considerable interest.
§ The Earl of Longford
My Lords, before the noble Lord sits down, may I ask him where he got the extraordinary idea that Queen Victoria was repelled by her loose-living husband?
§ 6.54 p.m.
§ Lord Ashbourne
My Lords, I shall not detain your Lordships long. I want to commend the noble Earl, Lord Halsbury, for his perseverance in bringing this matter to our attention for a second time. Many of us in this House and in the wider public are astonished that 185 the law does not have more teeth with which to deal with the horrific material that some of us have had the misfortune to come across. This is the first debate on the subject in this Parliament, so I hope that there will be a full range of views heard.
The noble Earl, Lord Halsbury, has given us food for thought with this Bill. How can we successfully regulate the sensitive issue of pornography as we head rapidly towards the next century and when global technology allows hard-core pornography to be transmitted around the world in a matter of seconds?
I am encouraged that so much attention in recent years has focused on child pornography and making sure that something is done about that particularly distasteful material. However, I am sure that noble Lords will agree that there is no room for complacency. It is a sad fact that pornography impacts upon relationships. It is stories of relationships damaged by this insidious material that convinces me that we cannot ignore the issue of what is and is not considered legally obscene.
The noble Earl, Lord Halsbury, has adopted a list approach—favoured in principle by the police—for defining what should be obscene. I commend the noble Earl on the tremendous industry he has put into compiling this lengthy schedule. I shall be interested to hear what the Minister has to say on that approach and the position taken by the Government on the Obscene Publications Act. I am sure that the House will have suggestions for refining the test proposed by the noble Earl and I shall watch with interest developments in Committee. Perhaps we shall conclude that a wide review of this issue is needed just as the Government has done for sex offences.
On a related subject, I am still concerned about the content of teenage magazines and the possibility of them falling into the wrong hands. It was brought to my attention that a 12-year-old girl purchased a copy of a recent issue of More. I understand that that magazine is aimed at 19 to 25-year-olds and falls outside the guidelines agreed several years ago for teenage magazines. That issue of the magazine contains explicit information which concerned the family of the young girl. Perhaps the Minister will write to me following this debate on how the teenage magazine guidelines are working and how to prevent younger girls from being sold magazines that are clearly inappropriate. Of course, it is not only girls' magazines that fall into the wrong hands. Men's magazines, such as Loaded, can also be bought by young teenage boys, which is as much of a concern.
I return to the main theme of the debate. I hope that we shall see some firm steps taken to reduce the amount of pornography legally available in this country.
§ 6.57 p.m.
§ Lord Northbourne
My Lords, I apologise for detaining the House by speaking in the gap. Your Lordships can console yourselves that if I had been in time to put down my name for the debate I would probably have spoken for longer.
186 I wish to make two points. First, I congratulate the noble Earl on an enormously innovative approach to the issue. He confounds those who say that there should be a retirement age for your Lordships.
Secondly, the substantive point that I make is that censorship of obscenity or pornography is often regarded and presented as a restriction of liberty. It is equally true that the results of the promotion and publication of obscenity and pornography can be a limitation of liberty. It can be a limitation of the liberty of women to walk dark streets in safety; a limitation of the liberty of parents to be confident that their children will not be the subject of a paedophile attack, induced into child pornography or seduced in other ways; and a limitation of the liberty of the taxman who has to pay for the cost of policing and punishing sexual crime and violence.
There is absolutely no doubt from the evidence in America over the past couple of decades that there are strong links between pornography, sex crimes and violence. After a while soft pornography ceases to give the thrills that it did at first and people move on to hard pornography and from hard pornography they move on to acting out their fantasies. That has been proved again and again, and the evidence is now incontrovertible.
The noble Lord, Lord Annan, made great play with the 1959 Act. Things have moved on since then. In 1970 the US Commission on Pornography concluded that pornographic material has its cathartic value. By 1986 a great many members of that commission had decided that they were wrong and the Attorney-General's Commission on Pornography in the United States concluded that,exposure to pornography produces an enhanced interest in deviant sexuality".The process is referred to as "escalation". It results from the concept of normalisation—that is, the more you read about these things happening, the more you begin to believe that they may not be so awful after all and to say, "Lots of other people are doing them, so why shouldn't I?". One thus becomes desensitised. In any consideration of this subject, let us remember those who are today suffering from the crimes which arise out of pornography.
§ 6.59 p.m.
§ Lord Cope of Berkeley
My Lords, the noble Earl, Lord Halsbury, has once again done the House a service in placing this Bill before us and in his great efforts of research and preparation. Personally, I should like him to remain eligible to take part in debates in your Lordships' House but, sadly, he is likely to be proved right about what is perhaps his swan song.
No Chief Whip would make suggestions about how one should vote on a matter such as this, even if this were not a Private Member's Bill but perhaps I should make it clear at the outset that the opinions I express are my own.
As has already been said, over my lifetime, which is only two-thirds of that of the noble Earl so far (in both cases), values have deteriorated out of all recognition, to the great detriment, I believe, of national life. As has 187 been demonstrated in the past few minutes, this House is very long-sighted, even if few of us can look back as far as the noble Earl and even if we can no longer see our collective future as clearly as we should like. It sometimes seems as if it will be impossible ever to reverse the process of decline and to raise standards once again. It must have seemed like that to many people in the last quarter of the 18th century but, by the last quarter of the 19th century, the pendulum had swung fully across, as the noble Lord, Lord Annan, reminded us. It was essentially public opinion, led by Queen Victoria and others, which reversed that pendulum swing. I believe that the time is coming when that will happen again.
However, the legal problems which have been discussed remain. Part of the reason for the decline in standards and values is that the limits were not fixed objectively but in terms of "tending to deprave and corrupt". As has already been said, the views of juries on that have altered as, notch by notch, the standards to which we have all become used have themselves declined. Competitive pressures on newspapers and magazines have led their proprietors and editors and, for that matter, television controllers to titillate audiences by ever more risque material both of a sexual and of an increasingly violent nature. The television authorities have proved reluctant to control that effectively, so that the boundaries have been pushed back and back, and juries have responded accordingly.
Sooner or later, however, that process must stop—and it will take a change in the law to do it. As far as I can see, the best legal way of doing it is by something along the lines of this Bill. If the law specifically defines obscene acts by a list such as is provided in the schedule, it will be possible to enforce it. One can attempt either to pick out all those acts at once, in a long list such as is provided in the current Bill or, by the rifle-shot method of a short list, to pick off only a few items to start with. Obviously, that is a matter for consideration in Committee.
At present, enforcement is very difficult. For a time, I was Paymaster General in the Treasury. I remember discussing this matter on a number of occasions with Customs officers and being shown magazines which had been confiscated at ports and airports. They were quite appalling. Customs and Excise had the advantage that the law on importation prevents the importation of indecent or obscene books or articles—that is not the whole of it, but it is the nub of that law—and that made it a little easier for Customs and Excise than for the police in comparable circumstances. However, enforcement is still difficult. Indeed, it is made more difficult by a European court ruling that anything which can legally be printed here cannot be refused importation because that is against free trade. The 1959 Act thus came into play even in Customs and Excise cases. It is therefore difficult for Customs and Excise also to draw a line and to know which confiscations by its officers at a port would be supported by a court. That is why I think that legislation such as this, and a list of the type contained in this Bill, will be necessary.
188 As I have said, it is a most difficult matter, but the principle of this approach has much to commend it. We should all be grateful to the noble Earl for putting this Bill before us and for restarting the debate in this form at this time.
§ 7.5 p.m.
§ Lord Williams of Mostyn
My Lords, I too am grateful to the noble Earl. Lord Halsbury, for returning this subject to us. The issue of obscenity and the extent of the controls which it is appropriate for society to exercise over the availability of certain types of material induce strongly held views, as we have heard. As the noble Lord, Lord Cope of Berkeley, indicated, this subject raises the difficult issues of morality and public decency. It relates to the relationship between individual interests and those of society at large. It involves difficult questions about the role and effectiveness of the criminal law in a society which all noble Lords who have spoken have described as changing rapidly.
The noble Viscount, Lord Brentford, asked me whether we were thinking of a test of what reasonable people would consider offensive. No; the definition of "reasonable people" is very difficult and we believe that "offensiveness" is a lower test than "harm" and that that test would therefore have the reverse effect to that intended.
The noble Lord, Lord Ashbourne, asked me to write to him about a particular aspect, and I shall, of course, do so.
Perhaps I may turn to the faults of this Bill. I am not critical at all of the enormous amount of research and effort which the noble Earl has put into his Bill, but we have not yet considered the Bill. Most of the: speeches have described a conceptual approach to the reform of the law, but we cannot look at law reform on a conceptual basis; we must look at the nuts and bolts, as I shall in a moment. However, perhaps I may first describe how the present law works.
As your Lordships know, that legislation is the Obscene Publications Act 1959. The test of obscenity in Section 1 is whether an article, if taken as a whole, is such as to tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, hear or see the material embodied in it. Section 4 of that Act—I think we should bear in mind that the noble Earl's Bill specifically seeks to delete that provision—gives a defence of public good. Such a defence is absent from the noble Earl's Bill. I am certain in my own mind that that is a deliberate absence because the noble Earl wants to strike out the defence. I am not criticising the noble Earl; he has done that deliberately; I am simply pointing out the consequences of the Bill.
One needs to bear in mind also—this has not yet been touched on—the extensive powers of search, seizure and forfeiture that are available to magistrates by virtue of the Obscene Publications Act 1959. Several noble Lords have said that it is difficult to get juries to convict. That has been recited to me at first hand by senior officers in the obscene publications squad. Perhaps I may give the figures. In 1997–98, there were 275 prosecutions and 189 189 convictions under the Act. However, that relates to proceedings before a jury. The powers of search and seizure are quite wide and extensive. If a magistrate is,satisfied by information on oath that there are reasonable grounds for suspicion that, in any premises within the relevant area"—that is his petty-sessional area—on any stall or vehicle, premises or stall specified in the information, obscene articles are kept for publication or gain",then a warrant may be executed, the material may be seized and an order for forfeiture may be made, with, of course, the power of appeal. So one can strike the commercial pornographer in that way. We should bear that fact in mind.
I promised to deal briefly with the scheme of the Bill and to indicate the view that I outlined earlier; namely, that it simply is not workable in any circumstance. Perhaps I may invite your Lordships to consider the detail of it. I do not apologise for so doing because we have not looked at the detail at all. I have in mind Section 2 of the 1959 Act which covers the prohibition of the publication of obscene matter in the way that the Act defined it and in the way that I have already cited.
Clause 2 of the Bill says:For Section 2 of the 1959 Act there is substituted"—and then the rubric of "Offences" appears in the margin—Subject to section 2A below, any person who knowingly, whether for gain or not—I shall return to Section 2(1)(e) in a few moments to illustrate the dangers involved. However, we need to find out what "obscene" means by virtue of the noble Earl's definition in the Bill. We find the definition of "obscenity" as being that which is,
public viewing or advertisement of, any obscene article shall be guilty of an offence".
- (a) publishes,
- (b) distributes, transports or delivers,
- (c) provides for the public or private viewing of,
- (d) advertises the availability of, or
- (e) contributes financially towards the publication, distribution,set out in the Schedule".But no one has yet looked at the schedule in any detail. I must confess my own innocent ignorance in that many of the words in the schedule were not immediately familiar to me; indeed, they are not presently familiar to me. Nevertheless, I recognised one or two of them. The title refers to:
"ACTIVITIES RELEVANT TO THE DEFINITION OF OBSCENITY";
we need to be quite careful about this. One of the activities relevant to that definition is:Display of human genital organs".So Michelangelo's productions and drawings in life classes are obscene. Moreover, to take the matter a little further, a vast body of Italian painting is obscene. As we know, large numbers of paintings which are on display in both private and public collections do display human genital organs.
190 The schedule goes way beyond the normal definition of obscenity that one would expect; for example, in the list we find:Human urinary or excretory functions".These are remarkable propositions which need to be scrutinised with great care. I say that because I had not myself encountered the proposition in the past that urinary or excretory functions of the male species would be regarded as obscene if they were described or spoken about. There is much more damage here. However, there is something which is rather more lighthearted—namely, "Interlingual kissing". I am sorry to tell your Lordships that I had to seek assistance from my private office in that respect. I can safely say that apparently it is something which is as innocent as French kissing. But I am subject to correction from the noble Earl.
Let us move on to something more important:Mutilation, torture or other acts of gross violence towards humans or animals, whether real or simulated".Let us focus on that for a moment or two because it is serious. Would this apply—it undoubtedly would on this test—to any sober, scholarly work about the monstrous tortures inflicted in Nazi Germany upon 6 million Jews, gypsies and homosexuals? Let us consider it again:Mutilation, torture or other acts of gross violence towards humans or animals, whether real or simulated".Does that mean that a scholarly work about the Holocaust is obscene? I repudiate that. Does it mean that photographs which show the monstrous bestiality of the Nazi regime are obscene? Again, I refuse to accept that. Further, does it mean that descriptions in works like the Bible are to fall within the category of obscenity because masturbation or gross violence is mentioned in that work?
Perhaps I may put to your Lordships a deeply sober and solemn thought. Does that wording mean that descriptions whether by word in the Bible or in the Gospels or in religious artifacts, paintings and so forth of the Crucifixion of our Lord are obscene? They would fall within that definition. I repeat it yet again:Mutilation, torture or other acts of gross violence towards humans".That is not a blasphemous observation that I make; indeed, it is a deeply serious one.
There is a poet and playwright who is our national genius. I do not know where that definition would leave his productions—namely, "Othello", "King Lear" or "Coriolanus". Need I stop, or need I go on? The grossest violence, almost the most unimaginable violence, is portrayed in those plays. It is idle to say that it was a long time ago and that children can safely watch them.
Perhaps I may be a little more lighthearted. Nymphomania is described as obscene and, therefore, any work of history—I believe that I am safe here—about Empress Catherine the Great would be in extreme difficulty. There is no reference to male over-indulgence—in other words, the male equivalent of nymphomania—so I shall not say anything about any possible records of current political life that one might or one might not be thinking about.
191 Some of the points are serious, while others tend to be a little more frivolous. However, the point that I am seeking to make is exactly the one that the noble Lords, Lord Cope of Berkeley and Lord Annan made; namely, that it is not easy to get definitions right. If one has such an extensive list, which was certainly an eye-opener to me in the way I outlined, it simply is not workable.
The noble Earl was kind enough to indicate his assent by nodding his head when I put forward the proposition that he had deliberately, as his act of policy, so to speak, taken out the defence of the "public good". He does put defences in the legislation; but, similarly, they do not work. I shall spend a few moments explaining why that is so. The defence in fact is found in what are called "exceptions" in new Section 2A which says:No offence is committed under section 2"—that is, the offence-creating section which I read out earlier—if any of the conditions described in sub-sections (2) to (4) is satisfied".The exceptions, or defences, are as follows:The article is made for public viewing for education in matters concerning health, hygiene or medicine, and has been certified by the Secretary of State".So, far from reducing the power of the Home Office—and I see the noble Lord, Lord Baker, sitting in the Chamber, no doubt remembering the complaints regularly made about the Home Office wanting to interfere too much in people's lives—the Bill would require the Home Secretary to certify matter which is for public viewing for education regarding health, hygiene or medicine. That is simply not workable.
Subsection (3) of new Section 2A continues:The article consists of a publication of a report of judicial proceedings or of any evidence admitted in such proceedings";one can understand that. But then the overarching exemption follows:The article is published or publicly exhibited—(a) in the interests of art, literature or science"—with no mention of religion, and—(b) in whole or in part at public expense".I shall spend a few moments on this analysis because it leads us to a position of unworkability, and really—I say this as gently as I can—to a position which is nonsensical in this sort of analysis. It would mean that I could publish something in the interests of art, literature or science which would otherwise contravene the very wide obscenity test contained in the schedule. If I published it at public expense "in whole or in part", I would have a saver; but if I am a private patron and I am not funded by the public, I would have no saver. That is no way to litigate—or rather to legislate! It certainly would be a way to litigate. In fact my former colleagues at the Bar Council would regard this as a long running pension indeed! In the absence of the noble and learned Lord the Lord Chancellor, "fat catterie" might well return to our land.
The provision simply will not work. I simply cannot understand why, if you publish in the interests of art, literature or science but not religion, and in whole or in part at public expense, you are saved, whereas if you 192 are a public philanthropist and are not funded at public expense you are not saved. Therefore the great private collections of the 19th century philanthropists would not be exempt from the measure, but the collections funded at public expense by the equivalent of the alderman in Beachcomber would be safe.
It is worth thinking about the following point. I am perfectly happy for it to be suggested that I am wrong in my analysis, but I do not think I am. If the Bible offends against the definitions of obscenity—I hope I do not need to repeat them, as I hope that noble Lords attended Sunday school and can remember them perfectly well—anyone who, in the propiosed new subsection 2(1)(e),contributes financially towards the publication, distribution … or advertisement",of the Bible (for example, the Society for Promoting Christian Knowledge) is committing a criminal offence. As I said, I am perfectly happy to have my analysis destroyed but I do not think it is capable of being destroyed.
I recognise that one or two of the remarks I have made have been rather lighthearted. However, there is something much more fundamental at issue here. The mere fact that some people behave differently to what your Lordships desire is not sufficient to make that criminal. There are many people who have different views on sexuality to what may be considered the norm, whatever the norm is. There are homosexuals, bisexuals and transsexuals who produce perfectly legitimate, respectable works of art or literature—I am not being patronising in the slightest—and who deal with their problems, their desires and their views in a perfectly legitimate way. It is not right to use the law to silence them. However, that is what this Bill would do.
I refer to the point raised by the noble Lord, Lord Annan, about the obsession—as it sometimes appears in this country—with purely sexual matters. There are many offences against mankind which are not related to sex. I repeat that I am grateful to the noble Earl for the enormous amount of research which he has done. That has rightly been applauded. I wish to be able to read accounts of the First World War, or of the conflict in Vietnam, or accounts of slavery in the southern states, or Lincoln's noble work before 1865. However, they are all obscene on the definition we have before us.
§ 7.23 p.m.
The Earl of Halsbury
My Lords, first of all I thank everyone who has taken part in this debate. In so far as many of their remarks have been kindly disposed towards me, I thank them for that. It would be a mistake to think that I am at too deep an issue with the noble Lord, Lord Annan. He is a friend of mine and he has done the next best thing to what I would have liked, which is what I predicted he would do. Therefore I am grateful to him for showing me right on that score.
I can give the noble Lord, Lord Williams of Mostyn, a name for the male equivalent of nymphomania. It is known as satyriasis. How it escaped inclusion in my list I do not know. However, I am grateful to the noble Lord 193 for the correction. Clearly this Bill needs a Committee stage and therefore I must proceed with it on the assumption that it will receive a Committee stage. But what kind of a Committee stage will it receive? What I have done, as it were, to "keep the game going", is to write to the Chairman of Committees, the noble Lord, Lord Boston of Faversham, to ask him to refer this whole matter to the Liaison Committee which is to meet at the end of the month to ask that committee how it thinks the Bill may best be dealt with; namely, whether it should be dealt with by a Select Committee of the House, or by a committee of inquiry, or something of that kind. In the meantime I wish the Bill to stand at this stage. I shall bring it back with a later proposal, either to refer it to a committee, or some alternative. On that basis, I hope that your Lordships will give it a Second Reading.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.