Parliament Watch

  Revision of Age Relating to Indecent Photographs of Children

Baroness Seccombe: moved Amendment No. 109:

Before Clause 37, insert the following new clauses:

• in the Protection of Children Act 1978, for the word "16" there shall be substituted the word "18".
• in the Protection of Children (Northern Ireland) Order 1978, for the word "sixteen" there shall be substituted the word "eighteen".

Baroness Seccombe: This amendment concerns the age of a child in proceedings relating to indecent photographs of children. The rise of public concern about the sexual exploitation of children has been on the increase over the past few years. One of the ways in which children are exploited is through being sexually abused. The record of such abuse may be captured on film, video or computers to be watched repeatedly and distributed around the world. Like the noble Lord, Lord Northbourne, I too remember the exhibition shown just off Westminster Hall. I had to leave before I completed my tour of the exhibition because I found some of the material so disturbing that it still haunts me.

Such early experience of sexual activity often leaves deep emotional scars on a child which can damage future relationships. Furthermore, the child must live with the permanent knowledge that pictures of the abuse are still circulating.

There would be few who would defend child pornography, but disagreements arise over what we mean when we refer to a "child" for the purposes of legislation as well as at what age children should slip out of the net of protection offered to them by the law. Currently, the Protection of Children Act 1978, the law that makes it an offence to produce or distribute an indecent photograph of a child, defines a child as someone under the age of 16. This same definition is automatically applied to the legislation that makes possession of child pornography an offence; namely, Section 160 of the Criminal Justice Act 1988. The same definition also applies in Northern Ireland. Yet for the purposes of the Bill, Clause 25 states that:

an individual commits an offence against a child if ... he commits any offence

listed in Schedule 4. Clause 37 of the Bill defines a child as,

a person under the age of 18.

The offence of producing and distributing child pornography is already included in Schedule 4 and Amendment No. 82 would add possession of child pornography to the list of offences. This amendment proposes that the same definition of a child should be applied to the offences related to child pornography.

The Government have recognised that children remain vulnerable and in need of protection up to the age of 18. In the Sexual Offences (Amendment) Bill, children up to the age of 18 are protected from those in a position to abuse their trust. Children up to 18 years old should be protected from those who wish to take indecent photographs of them. This protection would be in line with that conferred by the United Nations Convention on the Rights of the Child, which defines a child as someone under the age of 18. Article 34 of the convention refers in particular to child pornography and says that,

State parties undertake to protect the child from all forms of sexual exploitation and sexual abuse,

including,

the exploitative use of children in pornographic performances and materials.

In part because of the increase in child pornography on the Internet earlier this year, the United Nations issued a new optional protocol to the children's convention on the sale of children, child prostitution and child pornography. These offences are described as of a "grave nature" and governments are urged to take firm action to protect children. Can the Minister tell the Committee what is the Government's view of the new protocol and whether they will sign it?

Voting in favour of this amendment would bring our legislation into line with Article 34 of the United Nations Convention on the Rights of the Child, increase protection for teenagers and signal our continuing commitment to taking firm action against child pornography.

I hope that the Minister will have sympathy with this amendment. I beg to move.

Lord Monson: The noble Baroness, Lady Seccombe, will know that very often I support her and her noble friend Lady Blatch on Home Office matters, but I am afraid that I cannot do so on this occasion.

For decades, if not centuries, 16 and 17 year-olds have been deemed legally capable of consenting to most forms of sexual activity. There is one particular form of sexual practice which is not only capable of being psychologically damaging but is also undoubtedly physically dangerous which is the exception to this rule, and where the United Nations Convention on the Rights of the Child is indeed germane. We may return to this point before long.

First, taking indecent photographs with the consent of the subject--conceivably the enthusiastic consent of the subject--hardly comes into that category. The amendment does not confine itself to photographs taken for commercial reasons. It could catch two 17 year-olds who took photographs of their activities by remote control for their own amusement.

Secondly, paedophiles--against whom most of these amendments are aimed--are not interested in boys and girls as old as 16 or 17. Finally, there is a practical objection, given that few people carry their passports around with them at all times. Whereas it is usually possible to distinguish between a 14 year-old and a 16 year-old, it can be far more difficult to distinguish between a 16 year-old and an 18 year-old. Many people of 16 or 17 look two, three or even four years older than their true age.

For all those reasons, I believe that the amendment, although well intended, is misconceived.

  Obscene Publications Acts

Rev. Martin Smyth: To ask the Secretary of State for the Home Department what plans he has to reform the Obscene Publications Acts 1959 and 1964.

Mr. Straw: The Government keep the obscenity laws under general review and are determined to ensure that they remain effective in protecting the rights and freedoms of different people to have access to, and to be protected from, certain types of material. The Obscene Publications Act 1959 continues to provide a flexible regulatory tool, applying equally now to material published on the internet as it does to other media. Data for 1998 show that the Act continues to be effective with 196 prosecutions under the Act, 176 of which led to convictions.

Video Classification

Rev. Martin Smyth: To ask the Secretary of State for the Home Department what plans he has (a) to review the effectiveness of the Video Recordings Act 1984 and (b) to ensure the public accountability of the British Board of Film Classification and the Video Appeals Committee.

Mr. Straw: The Video Recordings Act 1984 requires that all videos, apart from a small category of exempt works, must be submitted to the British Board of Film Classification (BBFC) for classification. I am satisfied that, in general, the Act provides an effective means of regulating material released on video. I am concerned, however, about the implications of a recent High Court judgment for the small category of videos classified as suitable for sale only in licensed sex shops to those aged 18 and above (Restricted (18) videos).

On 16 May, the High Court dismissed the BBFC's application for Judicial Review in respect of appeals against their decision not to classify seven sexually explicit videos in the Restricted 18 (R18) category. The Board had focused their application for Judicial Review on the possible harm which the videos might cause to potential viewers, particularly children. I am considering the implications of the Court's decision and intend to publish a Consultation Paper shortly to seek views on whether there are any additional steps that can be taken to protect children from exposure to sexually explicit material.

Under the Video Recordings Act 1984, I am responsible for designating the authority responsible for classifying videos. I have so designated the President and the two Vice-Presidents of the BBFC. The designated authority is required to submit an annual report to me, which is then laid before both Houses of Parliament. I laid the report for 1999 on 24 May. Since his appointment as President of the BBFC, Andreas Whittam Smith has held two series of 'roadshows' in cities around the country as part of a dialogue with the public on classification policy. The Board is also conducting separate research surveys about its classification policy with members of the public.

The Video Appeals Committee is responsible for considering appeals by distributors against the decisions of the BBFC. It contributes to the Board's Annual Report which contains a section on the appeals they have considered together with a list of all its members. Appeal hearings are also open to members of the public.

Question proposed, That clause 70 stand part of the Postal Services Bill.

Alan Duncan (Rutland and Melton): The clause governs the posting of indecent or obscene material. Over the years, it has become clear that a blind eye is turned in the case of some vulgar articles. Although I have sympathy with the intention of the clause, I must say that subsection (3)(a) is almost redundant in practice, in terms both of the law and of real life. No end of obscene material, including videos, magazines and, one might argue, devices, can be bought by mail order and delivered by post, but that rarely leads to prosecution. I shall not argue about whether such laxity is a good thing—that is for another time. I am interested in the practical question of how the law will be enforced. What standards will be set for the enforcement of the clause? Should the clause not be revised to make it more specific?

What is Government policy on the availability of material that might come through the post and might, technically, cause offence, but in fact no longer does? Does the Minister accept that there may be a call for the clause to be studied further and amended, in order to bring it up to date, adjust it to actual practice or simply make it more realistic? We should be grown up about what really happens. Frankly, lots of things happen that might be offences under the clause, but for which the law is never invoked. What would be the proper enforcement of the clause?

Alan Johnson: The hon. Member for Rutland and Melton has raised an important point. However, he did not mention one aspect that, I think, should be mentioned, which is that the Public Order Act 1986 imposes controls on the publication, possession and distribution of racist material. The controls cover instances in which there is an intention to stir up racial hatred, or it is likely that such hatred will be stirred up. That means that such material is outlawed on the basis of a threat to public order. We are discussing with the Home Office whether specific offences relating to the sending of racist material through the post should be included in the clause.

We shall also discuss the hon. Gentleman's specific point with the Home Office. Obviously, it is not a matter for this Committee. We are bringing across provisions that exist already. It is fair to ask how rigorously the provisions will be enforced, and we will raise that issue. Certainly, the Post Office is concerned about it.

My final point is that the clause will strengthen the law, because it extends the prohibition on sending such material through the post, which currently applies only to material handled by the Post Office, to postal packets handled by all operators. Consequently, obscene material and so on cannot be sent in postal packets, whether they are handled by the Post Office or by any other postal service provider.

Alan Duncan: What is the principle governing that? If selling something in a shop is legal, should not posting it be legal? At the moment, it may be legal to sell in a shop something that it is illegal to post.

Alan Johnson: I shall check that out, as I am not equipped to answer at the moment. However, the Obscene Publications Act 1959 and the Protection of Children Act 1978 cover such matters. I am not aware of any disparity between laws governing material that may be sold and laws governing material that may be sent through the post. However, we shall return to such matters later, as we have not completed discussions with the Home Office on whether a specific provision on material that stirs up racial hatred is needed.

Prohibition on sending certain articles by post.

83. - (1) A person commits an offence if he sends by post a postal packet which encloses any creature, article or thing of any kind which is likely to injure other postal packets in course of their transmission by post or any person engaged in the business of a postal operator.

(2) Subsection (1) does not apply to postal packets which enclose anything permitted (whether generally or specifically) by the postal operator concerned.

(3) A person commits an offence if he sends by post a postal packet which encloses-

(a) any indecent or obscene print, painting, photograph, lithograph, engraving, cinematograph film or other record of a picture or pictures, book, card or written communication, or
(b) any other indecent or obscene article (whether or not of a similar kind to those mentioned in paragraph (a)).
(4) A person commits an offence if he sends by post a postal packet which has on the packet, or on the cover of the packet, any words, marks or designs which are of an indecent or obscene character.

(5) A person who commits an offence under this section shall be liable-

(a) on summary conviction, to a fine not exceeding the statutory maximum,
(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding twelve months or to both.