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Criminal Justice and Immigration Bill

moved Amendment No. 86J: 86J: Clause 63, page 47, line 7, leave out ““both”” The noble Baroness said: My Lords, with this amendment we move to Part 6 and the clause concerning extreme pornography. The Minister said that we had a series of Second Reading speeches in Committee. There was a good reason for that, as noble Lords felt that important principles were being explored and did not feel that the Government had got this part right. That is not to say that there is not an issue to be addressed—I accept that there is—but the Government have not yet got it right. This group of amendments attempts to get us nearer to getting it right. There was clearly some support in Committee for what the Government are trying to do, but we on these Benches, and many other noble Lords on other Benches, parted company with the Government because we felt there were a number of problems which the Government still needed to address. First, the Government have veered far away from the definition in the Obscene Publications Act. One of our wishes is that this part should bring into line what the OPA does for producers of material with an internet age to address the fact that this material can be produced outside the UK. The sort of definition we would be looking at would be one that has been tried and tested in the courts under the Obscene Publications Act and that does not confuse the question of whether the material is produced solely or principally for the purpose of sexual arousal with the question of whether it is obscene. As the noble Baroness, Lady Kennedy of The Shaws, reminded us in Committee, juries have great difficulty in dealing with what is likely to deprave and corrupt. Now they will have to contend not only with that question but also with whether the material is produced solely or principally for the purposes of sexual arousal. That has complicated the issue. In his reply in Committee, the Minister helpfully said that the Government are seeking after consultation with the police and the CPS to make it illegal to possess material that would normally be liable to prosecution under the OPA. We agree that it is important that the OPA is taken as the starting point because there has subsequently been a vast amount of case law which has moved with the times as society’s definition of what is obscene has changed. The Minister made it clear in his letter of 27 March that what we in the UK have regarded as obscene ever since 1959 is on the whole in advance of what most other countries have regarded as obscene. He sent us a useful round-up of how some of those other countries have legislated. As he says, the UK is a leader. He also says that it would not be the first time the UK has taken a lead in this area. For that reason in particular, it is very important, if these clauses are to be anywhere near to being up that task, that our amendments should be the very least to which the Government aspire. Our amendments reflect the fact that both in Committee and in his letter the Minister accepts that the OPA is good and satisfactory legislation. The decades of case law that have built up to a consensus on what is a very difficult subject reflect societal changes. We have therefore tabled Amendment No. 86L to clarify further that, in criminalising what an internet porn viewer is looking at, it should be the same sort of thing that it would be illegal to print under the OPA—neither more nor less. Amendment No. 86K would ensure that the Bill criminalises a possessor of material in which something is taking place that is actually criminal and not merely distasteful, however distasteful that might be. Will the Minister say more about the penalties which this part of the Bill carries and which are now very severe? If someone viewed over the internet a third party having sexual intercourse with a sheep, would that carry a greater penalty than someone actually having sexual intercourse with a sheep? It is important to focus on the effects of what we are talking about here. Should watching something that is clearly illegal, that clearly gives rise to animal welfare issues and that has clearly been legislated for in animal welfare legislation be more criminal and carry greater penalties than the actual act itself? In Amendment No. 86M, we have sought to give a far clearer definition of what a sexual offence is. Those offences are quite adequately defined in the Sexual Offences Act 2003, and surely the Government do not want to confuse an already fraught area by having two parallel interpretations of what a sexual offence is. I will come back to some of the more fundamental issues when we debate whether these clauses should stand part of the Bill at all, but at this stage, those are the matters that I wish to talk about. Therefore, I beg to move.