HC Deb 29 March 1955 vol 539 cc287-302
Mr. Roy Jenkins

I beg to move, in page 3, line 6, at the end, to add: (2) The Customs authorities shall within twenty-eight days bring proceedings under this Act against the person from whom matter was seized, or in the case of non-personal seizure shall within a reasonable time bring proceedings in the appropriate court of law to decide whether the seized matter falls within the provisions of this Act. If such proceedings are not brought within twenty-eight days such seized matter shall be returned forthwith to the person from whom it was seized, or in the case of non-personal seizure to the consignee. This is an Amendment of some importance and deals with the proceedings where a seizure is made of publications objected to by the Customs authorities. It also deals with a point which was raised by the hon. and learned Member for Northwich (Mr. J. Foster), in his speech on Second Reading, when he pointed out, as I readily admit, that the point here raised is one which certainly concerns this Bill, but which goes a little wider inasmuch that it affects the whole procedure of Customs seizure of objectionable literature.

In this Bill, we are giving the Customs authorities a new power which, up to the present, they have not possessed, and it is, therefore, appropriate that we should consider how that power should be exercised. The objection to the procedure which applies to obscene literature—and which would apply to these harmful publications if this Amendment were not accepted—is that if matter is seized by the Customs authorities there is no onus on them to initiate a prosecution against the people from whom such matter is seized, or to take any court action at all, and the matter only comes before a court if the initiative is taken by the person from whom the matter is seized or to whom it is addressed.

That seems to me to be putting the initiative the wrong way round. One ought not to put the Customs authorities into a position in which they can decide whether or not a matter is objectionable, thus leaving such judgment, in the great number of cases, not to be decided by a court. I suggest that where the Customs authorities think it appropriate, under the terms of this Measure, to seize matter coming into the country, they should initiate a prosecution in the same way as in the case of matter seized by a police officer.

I speak with some hesitation on this point, and I am sure that the hon. and learned Solicitor-General will correct me if I am wrong, but I think that this provision might actually strengthen the Bill in some respects. 1 am sure that my hon. Friend the Member for Kirkdale (Mr. Keenan) will be glad to hear me say that, because, as the Bill stands, there might be a difficulty in taking action on a criminal charge against an importer who might be an important person so far as the dissemination of such literature is concerned.

This Amendment, like so many others, is not, I agree, perfectly drafted. But the intention is to allow such criminal proceedings to be taken against the importer, and also to move away from the undesirable position in which Customs authorities can take action without having that action decided in a court of law.

8.0 p.m.

The Solicitor-General (Sir Harry Hylton-Foster)

I should prefer to discuss this matter with the hon. Member for Stechford (Mr. Roy Jenkins) in the wider context in which he is particularly interested when the discussion has reference to the wider context. I cannot advise the Committee to accept the Amendment, for reasons which I am not sure the hon. Member has in mind. I am not referring to the actual words of the Amendment, but to the pattern which he proposes to set up by it. He is dealing with two different kinds of seizure, one of which is personal, and which relates to the finding of a horror comic upon a passenger arriving somewhere, and the other non-personal, which deals with the normal case of imported goods.

The difficulty which this would raise in connection with a passenger is that proceedings would have to be instituted under Clause 2, and it would have to be proved that that passenger had the work in his possession for the purpose of selling it or letting it upon hire. That would obviously be an extremely difficult matter for the prosecution to prove. On the other hand, the mischief to which we are all directing our endeavours is performed once the work comes into the country. The Amendment would, therefore, not be very satisfactory in that respect; it would provide a small let-out in relation to that kind of seizure.

An entirely different procedure seems to be proposed in the case of non-personal seizure. It is rather difficult to visualise what is involved, because the Amendment does not suggest any power by which the defendant should appear in court, and there is no power in law, under the Customs and Excise Act, 1952, or the Magistrates' Courts Act. In the case of a non-personal seizure, if the person who has had certain works seized wants to protest he can do so but, as the hon. Member will appreciate, in the vast majority of cases concerning the kind of traffic at which we are now aiming the importer does not want to protest; he is only too glad to keep quiet, in which case the works are, in due course, condemned by a court or left seized.

It does not seem to us to be a good idea to use up the time of the courts by making it necessary to institute proceedings against a person who is only too anxious to leave things alone, rather than have his name mentioned in connection with the importation of such works.

Mr. Blackburn

Is there to be no punishment of anyone who is trying to import horror comics?

The Solicitor-General

Such persons would be caught, because they would be offending a Customs regulation. The hon. Member will see that the last words of Clause 4 provide that publications of the kind with which we are dealing come into the category of prohibited importations, and a person importing them will be liable to the usual penalties for trying to evade Customs and Excise provisions.

If the person whose works have been seized wishes to challenge the seizure there is no difficulty about his doing so. He has a month in which to do so, and he can claim that his goods should not be condemned. The effect of the Amendment would be to create a privileged and completely unique position for horror comics. There does not seem to be any good reason for putting traffickers in horror comics in an especially privileged position.

The experience of one hundred years has shown that the only sound method of controlling prohibited imports is to give the Customs authorities the power of seizure. This process has been working for a great many years and was last approved by the House when it consolidated the various Customs enactments in 1952.

Mr, Michael Foot (Plymouth, Devonport)

Can the hon. and learned Gentleman tell us what are the other kinds of commodities which are dealt with under this kind of seizure?

The Solicitor-General

I could not fully enlighten the hon. Member without reference, but he will be aware that goods are seized by the Customs authorities upon an enormous variety of grounds, such as public safety, national security and smuggling. There does not seem to be any valid reason for distinguishing publications which this House desires to keep out of the country from other matter that might be smuggled.

There is yet another point to be considered. At present, the would-be trafficker in such publications can take a chance on their not being caught at the docks or on their way into the country. The hon. Member's Amendment would give him another chance. The Customs authorities would then be obliged to bring them before a court, and that court might not feel justified in condemning them. That would seem to provide an additional encouragement to such people.

Sir Frank Soskice (Sheffield, Neepsend)

I hope that the Solicitor-General will tell the Committee that he will give this matter some further thought. His first objection to the Amendment was that it would necessitate the institution of proceedings under Clause 2, which would entail the necessity to prove the intention to sell. I thought that he gave the answer to that objection in the latter part of his speech, when he pointed out that the prosecution would not be instituted under Clause 2 but under the appropriate provisions of the Customs and Excise Act, 1952.

The Solicitor-General

No; the difficulty is that the Amendment refers to " proceedings under this Act."

Sir F. Soskice

The Solicitor-General quite properly pointed out that the Committee should in no sense be wedded to the wording of the Amendment, and should pay much more attention to its purpose. That is the usual practice in this House. He also said that there was really no case for making a special exception with respect to this kind of publication.

I do not hold any brief for such publications, but a great deal of the argument which we have heard has been upon the footing that we are here trespassing—no doubt perfectly justifiably and, indeed, necessarily—upon the complete freedom of publication. I repeat that this is a necessary Bill, but that does not prevent us from making changes where changes are necessary.

The case for the Amendment is that these types of publication should be differentiated from the wider categories of commerce which are imported in contradiction to the provisions of the Customs and Excise Act and other relative enactments. We say that it is not in the public interest that the Customs authorities should be able to pass judgment upon certain imported publications and that that judgment should, in effect, remain unchallenged, as it virtually does, so long as the onus for testing the validity of the action of the Customs authorities rests upon the importer.

We say that the condemnation by the Customs authorities is an important matter, which should not take place as a matter of course. If the Customs authorities elect to say that a certain publica- tion offends against the provisions of the Bill, public interest requires that that decision should be tested. As the Solicitor-General has pointed out, it will not always be so tested if the onus rests upon the importer, because he may want to keep quiet about the matter.

We say that the Customs authorities ought, therefore, to be put to their election. Either they are prepared to back their judgment by a prosecution in the courts or they are not—and if they are not the automatic result ought to be that the supposedly offending articles are returned to the importer. There is a case for treating these publications in a different way from that which is accorded to the wider category of imported goods which are prohibited. I simply ask the Solicitor-General to bear in mind the fact that we really have some feelings about the Amendment, which, in the first place, was proposed not by an hon. Member from this side of the House but by the hon. and learned Member for Northwich (Mr. J. Foster). I put it to the Solicitor-General that this matter requires consideration. I hope he will think about it again and see whether effect cannot be given to the Amendment.

Mr. Niall Macpherson (Dumfries)

The Amendment, as the Solicitor-General says, is in two parts, the first part dealing with personal seizure. We should consider the poor foreigner coming into this country. He does not know the law. Under the Amendment, as I understand the matter, the Customs would have to bring an action against anyone from whom they seized one of these papers.

Sir F. Soskice

We suggest that the police should have to bring a prosecution if they were not prepared to return the goods.

Mr. Macpherson

I wonder whether the foreigner would wish this to happen. He would much rather sacrifice one or two publications which he came in with, not knowing that they were contrary to the law, and he would not want to have an action brought against him. We ought to consider the convenience not only of persons who know the law of this country but of persons who will not know the law, whether foreigners, or British subjects who have been abroad for some time.

I quite understand what the Amendment is driving at, and I agree with something in the second part of it, although I am not certain that this point is not already covered in the Bill. The first part suggests a most cumbersome form of procedure to deal with what is likely to be a very small matter.

Mr. Keenan

I cannot agree with what was said by the hon. Member for Dumfries (Mr. N. Macpherson). He is very worried about the foreigner's feelings, but the foreigner is not entitled to better treatment than anybody else. One who travels to another country has to do what is expected of him, or accept the consequences. We have to do it when we go abroad. There is no case for consideration there.

Two points worry me. I am not anxious to make the Bill less effective, but I am not satisfied that the Customs authorities are in a very strong position. I should like to see the position strengthened. It does not seem that action will be taken promptly by the Customs. It may be rather delayed action of the kind about which we have often complained. I agree that there should be a time limit. Where the Customs authorities have made a seizure and proceedings can be taken, the position should not be left there indefinitely. There ought to be a period during which action could be taken. The time that has been suggested is reasonable, and the Government should look at the matter again from that point of view.

8.15 p.m.

Mr. Rees-Davies

If we are to extend censorship by Customs, as this proposal undoubtedly does, let us see precisely what will be brought in. Importers with criminal intent will try to bring in not publications, but plates. Plates will be what the Customs will have to detect. The Customs will have to ascertain what is in packages, and which cannot easily be seen. If films or plates are brought in, the Customs will be put into difficulties. I do not think it is practical to ensure the seizure of this class of goods at the moment of entry.

We are in danger of opening the door very widely to censorship by Customs officers. They are not only to deal with plates of publications, but of other people, since photography is very widespread.

My hon. and learned Friend the Member for Northwich (Mr. J. Foster) made a very wise speech on this subject during the Second Reading. He said: I am not sure whether somebody who imports a work of this kind is open to punishment under the Bill "— he is not, as I see it, open to punishment in the first place— If he is open to punishment under a Section of the Customs Act, I should have thought that that was inadequate and that the Bill ought to provide that anybody who imports a work of this sort should be caught by Clause 2. That is strengthened. My hon. and learned Friend went on to say: It is also undesirable that when these works are imported the machinery of prosecution should be started by the Customs and that, in a sense, the person who imports them should have the onus of having to object to the seizure. He was asked by the hon. Member for Glasgow, Central (Mr. McInnes) a question in these terms: The hon. and learned Gentleman has referred to the importation of these publications, but surely it is not so much the importation of the publication as of the plate or film. Would he seek seizure of the plate or film? My hon. and learned Friend replied: Yes, but I would like the Bill to say that if the plates were seized the person importing them should be prosecuted. Most of the prosecutions have occurred under the procedure by which the Customs judge whether the plates infringe an Act of Parliament. They then seize them."—[OFFICIAL REPORT, 22nd February, 1955; Vol. 537, c. 1090 and 1091.] I will just stop there.

How can they judge, until they have seized the plates first They seize them, and put them under the proper processes in order to see what they are. Then the Customs has to set itself up as deciding whether this is or is not a horror comic. How can it be

wholly or mainly a story told in pictures, as Clause 1 requires This is an individual plate and it cannot come within the ambit of Clause 1.

This is why I think there will be difficulty about this procedure. It certainly will not be easy. I am by no means satisfied that the Amendment has been properly drafted. We are on rather dangerous ground here. I invite the Government. while not giving way to the Amendment, to say that they will look at the matter from that point of view, and find something better before the Report stage.

Mr. Foot

Here, we have a rather topsy-turvy situation. We have had Liberal views coming from the hon. Member for Kirkdale (Mr. Keenan).

Mr. Keenan

I must protest against my hon. Friend identifying me with Liberal views. That is something which I resent. I was a Socialist probably before my hon. Friend was born.

Mr. Foot

If my hon. Friend thinks I was trying to insult him he is wrong. I was trying to compliment him. If he thinks my compliments are insults I had better try my insults. I genuinely wanted to pay a tribute to him for his speech, in which he appealed to the Government to exercise a liberal spirit about the Amendment and to recognise the validity in what was proposed. In all fairness to my hon. Friend, I was saying—I know he feels strongly about the rest of the Bill—that it did him credit that he was prepared to support the Amendment. Although I respect his opinions but dislike them very much, I wanted to compliment him.

I also wanted to illustrate the topsy-turvy situation we have got into on the Amendment. Not only have we had my hon. Friend, I will not say giving the views of Liberalism this time but certainly contradicting what he has said on previous Amendments, but we have had the Opposition Front Bench pressing the Government very hard to accept the Amendment. I am altogether in favour of that slight modification of previous proceedings.

Even more remarkable, we have had a speech from the National Liberal Party. It is a welcome innovation. I thought we were going to have a full burst of Free Trade doctrine. The hon. Member for Dumfries (Mr. N. Macpherson) spoke for the rights of foreigners, but would not like the protections which we would give them. He thought that this was a good Amendment on that account. Then we heard an hon. Member opposite, who has been a most consistent contributor to these debates, giving better reasons why the Government should accept a different point of view than the Government have been able to advance against it. I hope that the Government will accept the technical arguments which have been put forward.

I confess I was a little dubious about the merits of the Amendment when I heard of it. I was not sure that it was really necessary. When I heard the Solicitor-General I was absolutely convinced of its necessity. The Solicitor-General argued against the Amendment on grounds which really make a laughing stock of a large part of the Bill. He does not seem to understand what we have been arguing about all along. I am glad that we have plenty of time in which to discuss the rest of the Bill, because we may be able to educate the right hon. and learned Gentleman as to what we are concerned about.

What some of us on this side, and many on the other, have been arguing throughout is that we really think there is some difference between dealing with the publication of ideas, in whatever form, and dealing with other commodities. The main case of the Solicitor-General against this Amendment is to say, " Why should we give special treatment to people who happen to be publishing ideas, however monstrous? "

Mr. W. R. Williams (Droylsden)

Dirty ones.

Mr. Foot

That is prejudging the issue.

The Bill is trying to decide which ideas should be denounced as monstrous and damnable and which should not. Here we are dealing with a commodity—the expression of ideas, whether evil or not —and that is a different commodity from soap, coal, coffee and the other things which we import. The Solicitor-General says, " What is the difference? Why should we make any distinction with regard to the printed word or to pictorial representations?"

Mr. Williams

Why?

Mr. Foot

This is the reason why many of us have wished to scrutinise this Bill carefully. It is precisely because we do believe that in dealing with the printed or spoken word, or the expression of ideas in any form, different principles should apply than would be applied to the exchange of other commodities. If my hon. Friend does not recognise that distinction he will not be able to accept any case for free speech or freedom of the printed word which has been expressed anywhere. The whole case for a different treatment of free speech, the whole case against censorship rests on the fact that the argument for free speech and free opinion—

The Deputy-Chairman (Sir Rhys Hopkin Morris)

I would remind the hon. Member that this Amendment deals only with the time in which proceedings may be brought.

Mr. Foot

I am perfectly well aware of that, Sir Rhys, but the Solicitor-General rested his case exactly on the ground that if the importers of alleged horror comics were to be distinguished from those of other commodities it would be most unfair. I am arguing—and it is a good Liberal argument, I may say—

The Deputy-Chairman

I do not object to its being a good Liberal argument as long as it is relevant.

Mr. Foot

I take the old-fashioned view that good Liberal arguments are always relevant, and that such arguments are particularly relevant when the Solicitor-General says, " I do not draw any distinction between people who are selling ideas, whether good or bad, and people who are selling uranium or nylon stockings."

I am sure that many of us have had differences with the Customs authorities on many matters. It may be very regrettable, but one of the cases in which the standards of public honesty are perhaps lower than they should be is when a person goes through the Customs. It may be very regrettable, but there are large numbers of people who, although in other matters are law-abiding, when they face the Customs authorities think, " If I can get past here it will be clever."

Mr. W. R. Williams

Is this a Liberal confession?

Mr. Foot

It is just that I am more outspoken than many. I am sure that many hon. Members who are now perhaps scorning me have indulged in that or thought that they would like to indulge in a similar case.

The Deputy-Chairman

This argument is wide of the Amendment. The time in which proceedings shall be taken is the matter before the Committee.

Mr. Foot

I am sure that the approval with which my views have been accepted shows that there are some who agree with the argument.

No hon. Member would accept the Customs authorities as the proper body to judge these matters. This Amendment therefore proposes that there should be speedy treatment and that the Customs authorities should not be able to exercise power over publications for a long period. The Amendment has been moved in the most reasonable fashion. The only response is an argument from the right hon. and learned Gentleman that none of us would accept. I should have thought that it would hasten the whole procedure were the Solicitor-General now to withdraw his argument and say that since there has been such a powerful case put from the Opposition Front Bench he is prepared to accede to their demands, particularly in view of the assistance that the Opposition Front Bench has given to the Government in getting the Bill through as speedily as it is going through.

Mr. Ede

I was born a Liberal. I developed into a Socialist because I saw no other end for Liberalism. I am quite certain that Socialism without Liberalism can be the most appalling tyranny. I say that because we are dealing here with the problem that is presented by the existing Customs law. Documents that may fall within the prohibition of Clause 4 will be seized merely because the Customs think those documents fall within that prohibition. The only way in which that can be tested is by the owner of the publications taking steps for their return. The onus of proceedings is put on him.

8.30 p.m.

This Amendment is concerned not so much with the time at which a prosecution takes place as with the fact that a prosecution shall take place. We are not wedded to the exact wording of this Amendment, and the Solicitor-General was generous enough to say that he was not arguing against this Amendment on its mere drafting. He was concerned with the ideas behind the Amendment. All sorts of people in the history of the world have been censors. The clergy and lawyers have been censors. The Lord Chamberlain is a censor of some things in this country, and young men in his office on occasion have to read things that they decide would pollute the minds of other people.

The people who ought not to be censors are Customs officers, and this Clause makes the Customs officer a censor. I would not have thought that one had to be nearly as vigorous a Liberal as I am to resent that. I would have thought that a Home Secretary who also had a Liberal upbringing ought to have some qualms of conscious at having to put before the Committee a Clause which made Customs officer censors. That is the matter at which this Amendment is aimed.

I am not so much concerned with the foreigner walking down the gang plank with a horror comic in his pocket and who, when he is asked if he has anything to declare, produces it as evidence of the likelihood of his making a good citizen if he comes into this country. I am not concerned with him, because he has got to prove that he has brought it in from the United States of America with the purpose of selling it. I think that it would take a lot of proving, and I very much doubt whether anyone—a Customs officer or the right hon. and gallant Gentleman's immigration officer at the airport—would ever think of proceeding against him on those lines.

But I am concerned about books and plays and leaving the judgment to the Customs officer. So far as I am concerned, if these are the kinds of publications on which there was a unanimous vote on Second Reading condemning them, I think the person concerned ought to be prosecuted and punished according to law in the appropriate court.

This is a Bill which has given very serious concern to all of us. If my hon. Friend the Member for Devonport (Mr. Foot) thinks that on occasion we have been helping the Government too much, I want him to believe that we have done it because we do not want to see free speech villified by accepting under it the kind of thing at which this Bill is aimed. After all, there are some publications which have, no doubt, occurred in the history of the world which my hon. Friend the Member for Devonport might, after much heart searching, think were even a little too thick for him to defend and which, with a sound Methodist upbringing, he might find it within his heart to condemn.

I appeal to the right hon. Gentleman and the Solicitor-General to believe that our misgivings about this Clause and its application of a censorship by Customs officers are genuine and deeply felt, and I hope that between now and Report they can find something which will relieve our anxiety on this point.

Mr. Blackburn

I think the Solicitor-General passed over rather lightly the intervention which I made and which I think was relevant to the problem. I do not think he wants to be unfair to the Committee, but if he is to refuse an Amendment of this kind—not necessarily these words—then he ought to be a little more specific about the sort of proceedings which can be taken under existing legislation.

It is the general view of the Committee that any one who brings these things into the country should receive punishment, and if the Government are not prepared to accept an Amendment on these lines, although not necessarily in these words—for I see that we cannot very well proceed under Clause 2 for importation—then we ought to have a very full explanation of how proceedings can be taken under existing legislation.

The Solicitor-General

I do not pledge myself to having considered this aspect in detail at the moment, because the Amendment as it stood did not raise it, but clearly somebody evading a Customs prohibition would be subject to Customs penalties, in a bad case going literally as far as imprisonment. Such penalties are, of course, seizure and the usual series of penalties which attach to persons ordinarily called smugglers. After all, this is what the smuggler is doing—importing something to which a statute attaches a prohibition on imports.

I hope the right hon. Member for South Shields (Mr. Ede) and the right hon. and learned Member for Neepsend (Sir F. Soskice) will accept at once that if they say they are serious in their belief about the Amendment, then the Government will of course accept that proposition, as I should accept it personally, and in consequence would look very carefully at the matter. We will do that. But I do not want to hold out false hopes about it because I feel that in speaking about " censorship " by the Customs in this context one is perhaps being a little artificial —and I use the word " censorship " in inverted commas. We have all lived with and not disapproved of " censorship " by the Customs in relation to things like obscene publications or, to take an example admittedly far away, dirty postcards. We have all submitted for a long time to the Customs " censoring " those in the sense in which we are now speaking.

I assure the hon. Member for Devon-port (Mr. Foot) first of all that I can never conceal my delight at listening to him in the House or elsewhere and secondly, that so far from failing to understand what he has been talking about in the discussion, that has not been my difficulty at all. I understood very well. My difficulty was to understand what it had to do with the kind of publications which we are dealing with in the Bill. That is rather a different matter. I hope and believe that the Customs officer trying to do his best does not want to be a censor of ideas or great works of art or to frustrate creative artistic products. He is only doing his best to try to catch something which we all regard as a horror comic.

Mr. Maurice Orbach (Willesden, East)

How can the Customs officer determine that this is a prohibited article under the Act without having examined the whole of it? It must " as a whole," if we read Clause 1, tend to corrupt, and we shall therefore have Customs officers allowing every one to get through smuggling watches and nylon stockings while they are looking at a horror comic in order to be certain that the whole of it would corrupt.

The Solicitor-General

I hope that by curing one evil we shall not encourage the practice of bringing in watches in one's socks or wherever people do bring them in. I am not giving the hon. Member any tips.

These publications, in the ordinary way, are delivered in bulk. The matrix case is a different one and is a serious one. I do not think that the question of the publication " as a whole " is a worry, because it conies in " as a whole " in bulk if it comes in printed. The matrix is different. I think one is going a little far in thinking that the Customs officer will make himself the censor of serious literature or of the disseminator of serious ideas. I doubt whether, when he says that, the hon. Member for Devonport (Mr. Foot) has had time—I was going to say to read, but that is the wrong word to see enough of these horror comics to visualise the object at which we are aiming this Bill.

It is true that the Lord Chamberlain is allowed to censor, but the difference between the Lord Chamberlain and the Customs officer is that when the Lord Chamberlain says that a bit of strip-tease goes too far and shall not happen, one cannot send him a notice and challenge him in the courts, whereas if the Customs say, " Your publication is a horror comic " and one desires to say that it is not, it is only necessary to send the Customs a notice to make them take proceedings before they can condemn it.

For these reasons, I do not want to raise false hopes. I would desire to deal with the matter in courtesy, because this is a Bill which has no inter-party element about it at all. We are only trying to get rid of an evil. The right hon. Gentleman has suggested that this matter should be looked at again, and I will, of course, look at it again. But I do not want to create false hopes because it creates great difficulties in relation to Customs practice. I do not believe that there is any grave danger that we should be having our ideas censored by Customs officers as opposed to having horror comics provisionally condemned by them.

Amendment negatived.

Clause ordered to stand part of the Bill.