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?
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. 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 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 t
- "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. 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 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, 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.
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 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 that 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, 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 whole" for, "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.
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. 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?
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.
