I share the concerns, which have been expressed by many noble Lords and noble Baronesses about the clauses as they are presented to us at the moment, even with the amendments that I acknowledge have been tabled to try to address a number of concerns that were expressed in another place and by the Joint Committee on Human Rights on this particular issue.
There is still a degree of uncertainty about what the criminal law will be. If we are indeed about to create a statutory offence with the potential for a serious term of imprisonment, we really need something that stands up to scrutiny much more than the terms of the clause. In his final remarks, the noble Lord, Lord Henley, said something about trying to determine what the mischief is. I tried to think who the potential victims of this crime are. Is it those who participate, because if actual events are being filmed, clearly a crime of serious assault will have been committed in any event? If it is simulated and if people are engaged in a consensual activity, it is stretching things a long way to suggest that people who are engaged in that kind of consensual activity, albeit in an activity that may be abhorrent to most if not all of us here, should be criminalised for that.
It is quite clear that in the case of child pornography, a child is incapable of giving consent. Therefore, it is only right that that is totally beyond the pale and is criminalised. We should tread very warily before we engage in criminalising something that is consensual. It would be very odd if a couple engaged in a consensual act which in itself would not be criminal but, if it was photographed, the possession of the photographs could be criminal. That seems to be going too far. On those who are perhaps viewing this material, again I have difficulty in accepting that that might be the case.
In introducing his amendments, the Minister made the point about how the Government are trying to bring the definitions more closely in line with the Obscene Publications Act. I note that Section 1(1) of the Act provides:
"For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it".
It has already been said in this debate that the type of people who are liable to see this are probably those who seek it out. It is very difficult to perceive, therefore, if one is trying to import the Obscene Publications Act, the type of people who are liable to see it and whether they would be victims of the crime intended to be created by this clause.
On whether the wider society could be the victims, my noble friend Lady Miller of Chilthorne Domer has indicated her concerns about the reference to the rapid evidence assessment referred to by the Minister. But it is equally the case that in the Government's consultation document on these proposals, both in the executive summary and on page 10, they acknowledge the question:
"In the absence of conclusive research results as to its possible negative effects, do you think that there is some pornographic material which is so degrading, violent or aberrant that it should not be tolerated"?
In their consultation document, the Government accept that the case is not made and that there has not been conclusive research to the effect that it has a negative effect on wider society.
Before we create this, we are entitled to ask who the victims are. As yet, I do not think that that question has been answered. Just because we may find the type of material abhorrent, that is very often the time when we should stop and pause. It is very easy to talk about defending liberties and freedom of expression when people are making comments about things that we most readily agree with. But, as the European Court of Human Rights said in the case of Müller v Switzerland,
"it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population".
We should hesitate before we go down this road. I agree with Members of the Committee who have said that there will be other ways to address our concerns; perhaps a Joint Committee of both Houses could look at the evidence, or we could tackle more and engage more with the internet service providers. In the long run, that may be a more effective way of curbing this activity rather than trying to create an offence, which many Members of the Committee have said has many weaknesses in it.