§ Order for Second Reading read.
§ 3.34 p.m.
§ Mr. Roy Jenkins (Birmingham, Stechford)
I beg to move, That the Bill be now read a Second time.
I apologise for the absence of the hon. Member for Stafford and Stone (Mr. H. Fraser) who drew a place in the Ballot and elected to introduce the Bill. Unfortunately he has an important engagement which has made it difficult for him to be here today. I think also that, in common with other hon. Members, he underestimated the probability of the Bill being reached.
However, I am very glad to be able to move the Second Reading, particularly as it is the same Bill as that which I sought leave to introduce under the Ten Minutes Rule in the last Session of the last Parliament, and which the House was then unanimously good enough to give me leave to introduce. Although we shall not be able to have a long debate this afternoon, I hope that the House will be equally kind to this Measure.
1884 I wish to say a few words about the origin of the Measure. The Bill was drawn up by what is known as the "Herbert Committee," which was set up about nine months ago under the auspices of the Society of Authors and which contained not only authors but a wide range of other people under the chairmanship of Sir Alan Herbert. It drew up the Bill and presented it to the public, to the Press and to the Home Secretary some time later.
It will be within the recollection of many hon. Members that the Bill drawn up by the Herbert Committee, the Second Reading of which I am now moving, has had on the whole a very good reception from many organs of the Press. The Times has published a number of favourable leading articles, the Sunday Times, the Manchester Guardian and The Times Literary Supplement, among others, have all been friendly towards this Measure.
The need for this Measure arose out of five cases in 1954 in which publishers of the highest repute were indicted for the offence of obscene publications. Those cases were decided in different ways. In two there were convictions, there was an acquittal in two cases, and in the fifth case the jury twice disagreed. The Director of Public Prosecutions offered no evidence on the third occasion.
Three facts emerged from those prosecutions. The first was that the law relating to obscene publications was in an uncertain and unsatisfactory state. That was shown by the obviously contrasting nature of the summing up of the judge in each case. In the second place, it became clear as a result of those five cases that it would be possible, on the basis of the famous Hickling Judgment of 1868, the foundation of the law in this field, to impose a very strict and, in many ways, a ridiculous literary censorship.
The third fact was that if prosecutions were likely to be instituted other people, as well as the authors and the publishers—notably printers and perhaps librarians—might also be indicted for this offence and, in order to safeguard themselves, might impose a censorship still more strict than that which the law could possibly support.
When I introduced the Measure under the Ten Minutes Rule in the last Session of the last Parliament, I referred to that possibility as something which might 1885 happen in the future and which would have been still more likely to have happened had the judgment in the fifth of those cases—the one which went through three stages—gone the other way. In spite of the fact that it went the right way from the point of view of the publishers, it is none the less the case that in the last year, although we have not had any cases like the five of 1954, printers have, in a number of instances, begun to exercise exactly the sort of censorship which I expressed fear that they would exercise.
A number of publishers publishing books of undoubted literary merit have had difficulty with their printers because the printers were afraid of the risks which they might run because of the present uncertain state of the law. As a result of the five cases in 1954, the law was looked at a great deal more closely and it became clear from that examination that on five counts at least the present position is unsatisfactory.
I want to outline those five counts. The first is that the purpose and function of the author and publisher are of no account and cannot be taken to be of account in determining a case under the law as it stands at present. The second is that no evidence is possible, no defence can be attempted, on account of the literary, scientific, artistic, or any other merit of the publication. The third is that it is not possible to offer expert evidence before a court. In one of the cases which was brought before a court in 1954 a large number of literary critics of great eminence, who had given the book prominence in reviews they had written, were present but were not able to be called to give evidence because the law as it stands specifically excludes the information which they would have been able to put before the court.
The fourth point is that there is no certainty, under the law as it stands, whether it is isolated passages in the work or the effect of the work as a whole which the court has to take into account. The fifth point is that there are no maximum penalties. So far as I know, a court could prescribe any penalty it liked, short of the death penalty, for an offence under the common law in this respect.
Hon. Members will agree that these defects have made necessary a clarifying and, if possible, a liberalising Measure 1886 which would give greater security to works of good intent, and that is precisely what this Bill attempts to do. I can best sum up its central feature by quoting paragraph 2 of the Explanatory Memorandum:The question of intention is declared to be relevant, and the court is required to consider among other factors:—I know that some hon. Members may feel that there is a difficulty about the meaning of the word "intent." They may be inclined to argue that somebody who publishes a corrupting or pornographic book or other publication never intends to corrupt; what he generally intends to do is to make money. I speak as a layman and not as a lawyer, but I think that that is a difficulty which the law has to face, and has successfully faced, in a number of other respects. For instance, if a man is indicted on a charge of murder, it may be said that his intent in this sense is to get hold of some money or to achieve some other benefit for himself. None the less, it has to be shown that in a legal sense he intended to kill the person concerned, and the intent in this sense is an essential part of the crime which has to be shown. In this sense we can be fair if we draw a distinction between motive and intent. The hon. and learned Member for Middlesbrough, West (Mr. Simon), who will second this Motion, is far more expert in these matters than I am, and he may say a word upon that matter.
- (a) the dominant effect of the publication;
- (b) evidence of its corrupting influence if any;
- (c) the literary or other merit of the publication; and
- (d) the class of persons among whom it is likely to circulate."
I believe, therefore, that if we act on the basis of intent it will be possible to give a greater security to valuable literary work without in any way opening the gates to a stream of pornographic publications, and I believe that we can put the law on a clearer and more sensible basis. I do not suggest that the Bill is perfect. It is eminently a Bill which would need to be, and no doubt would be, amended in Committee. However, I hope that on this occasion the House will agree to give it a Second Reading in order that we may set about dealing with what is universally agreed to be a difficult part of the law which 1887 needs reform. As I have said, there has been practically a unanimous expression of agreement with this view.
§ 3.44 p.m.
§ Mr. J. E. S. Simon (Middlesbrough, West)
I beg to second the Motion.
Although this Bill deals with only a small province of the law, it relates to one of the fundamental principles of our Constitution, namely, the right to freedom of expression. Since it relates to a matter so fundamental, it is deplorable that the right hon. Gentleman the Member for South Shields (Mr. Ede) should have endeavoured to count out the House in order to stifle discussion of this Bill.
Freedom of expression stands with freedom from arrest, the right to personal liberty, with all those fundamental rights which make up that body of civil liberty which this House has always been anxious to protect and, indeed, of which it was the nursery throughout the world. However, we have all recognised that the right to freedom of expression needs some limitation. It is limited by the law of defamation. It must not be abused so as to injure unnecessarily and wrongly the personal reputation of individuals or classes. Similarly, by the law of sedition, if freedom of expression is used to subvert the Constitution, to stir up violence among sections of the community, we recognise—although it has to be regarded closely—that the full right, the complete licence of expression, must be limited; and similarly so far as blasphemy and obscenity are concerned. On all these matters, we are limited, and those matters must, therefore, be closely and rigidly defined if they are not to be a source of possible danger to civil liberty in this country.
The law relating to obscene libels is certainly at present irrational and uncertain. The hon. Member for Stechford (Mr. Roy Jenkins), who moved the Second Reading so ably, drew attention to the conflicting judgments that we have had recently. Nobody can say for certain whether or not any particular publication would be considered to be an obscene libel within the law. The hon. Gentleman has drawn attention to the anomalies which subsist in this branch of the law. One must recognise that tastes change, and there is very grave danger of work being stifled, and particularly stifled at 1888 birth, through printers and publishers not knowing exactly were they stand and, therefore, playing for safety.
One can think of cases like Manet's famous picture "The Picnic," a sketch of which hangs in a public gallery in this country. It was violently attacked when it was painted, on the very ground of obscenity. It seems astonishing to think of it today, but that is so. One can think of a great many literary works which were even suppressed in their time, published abroad, and which today circulate freely without any offence in this country and without any damage.
Equally, with the law in its present state, there is no question that great parts of the works of Shakespeare, the great Elizabethan translation of the works of Rabelais, large parts of Gulliver's Travels and other works of Swift would fall under the axe of the law. For those reasons, and because of the anomalies in the law to which the hon. Gentleman drew attention, it is incumbent on us to deal with this problem and try to bring some order into the law.
I was not proposing to detain the House, particularly after the matter had been so carefully stated by the hon. Member for Stechford, but he referred to the question of intention, and that is a matter which was referred to by my right hon. and gallant Friend the Home Secretary when this matter was discussed on the Measure that was passed in the previous Parliament relating to horror comics. There is really no difficulty in law in requiring the proof of an intention to commit a criminal offence. On the whole, taking our criminal law as a whole, we require a proof of a guilty mind.
There are certain offences, it is true, where that does not obtain—certain offences relating to infringement of the Factories Acts, Customs offences, and so on, where the act really speaks for itself, but, by and large, we say nobody shall be found guilty of an offence against the criminal law unless he intended in some sense some wrong. There is no difficulty of proof, because prima facie everybody is deemed to intend the natural and probable consequences of his action. In other words, the actions speak for themselves. But surely it should be open to every citizen to prove that he did not intend what seems in all the circumstances 1889 the natural and probable result of his actions. It is by no means unreasonable and novel to demand affirmative proof of an intention to commit an offence under this or any other Measure.
I agree with the hon. Member for Stechford that the Bill can be improved. It is essentially the sort of Bill in respect of which the collective wisdom of the House would be of the greatest value, but it would be an abnegation of our responsibilities if we did not take up in that spirit the reform of this branch of the law. This is not a charter for libertines. It merely introduces a measure of reason and uniformity into this branch of the law, thus helping to safeguard the cause of liberty.
§ 3.51 p.m.
§ Sir Beverley Baxter (Southgate)
I find myself in some sympathy with both the hon. Member for Stechford (Mr. Roy Jenkins) and my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon). There is a feeling that if a problem exists, there must be a solution for it, but I think there are some problems for which there is no solution. It seems to me that this question of censorship and the clarification of the law of obscenity is so complex and confusing that the Bill will only add to the present mess.
Clause 1 (1, a) reads thatno person shall be convicted of an offence under this section unless it is established by the prosecution either—(a) that the accused intended to corrupt the persons to or among whom the said matter was intended or was likely to be so distributed, circulated, sold, or offered for sale;Dealing with novelists and publishers, those purveyors of dirt who know that there is a market for this filthy stuff have no interest in corrupting the readers; they merely want to make money. How in the world can any court of law prove that the author intended to corrupt the readers? I think it is quite impossible.
§ Mr. Roy Jenkins
I am sure the hon. Member will not leave it there without referring to the second part.
§ Sir B. Baxter
That "he was reckless"? It reads,he was reckless as to whether the said matter would or would not have a corrupting effect upon such persons.1890 Surely that merely adds to the first paragraph.
§ Sir B. Baxter
I think the hon. Gentleman will agree that paragraph (a) is quite impossible, and since it is the first paragraph in the Bill I do not think the Bill can be of great value.
Recklessness is a very difficult thing to prove. I see nothing reckless here. It seems to me that the dirty-minded publishers and the dirty-minded authors know exactly what they want.
§ Sir B. Baxter
This Bill does not deal with the clean-minded author.
In Clause 2 we read.Whether the general character and dominant effect of the matter alleged to be obscene is corrupting;No doubt all that could be proved, but it seems to me that in the end it is impossible to draft Clauses in a Bill which will make the Bill coherent or workable in dealing with obscence publications. For example, supposing that a modern Euripides brought in the manuscript of "Oedipus Rex." You are a great Greek scholar, Mr. Speaker, and therefore I will not attempt to enlighten you on the theme of "Oedipus Rex," but can you imagine that being put before any censorship board? Would they say, "Yes"? Not at all; they would lose their jobs.
Consider the Press Council. Has it been able to define obscenity? The Council was set up as an advisory board, and the moral decline in the popular newspapers has gone on steadily ever since it was first set up. I feel very strongly that in the end this question has to be left to the critics of writing, to the critics of the theatre and to the manifestation of public taste. Therefore, I think that it is the duty of publishers of newspapers, the duty of the House, and the duty of all who command either the ear or eye of the public, slowly to raise the standard of judgment, the standard of ethics and the standard of taste so that in the end the public will say, "This shall not be."
I have been studying the Bill very closely for more than an hour. I was not involved in the Lotteries Bill debate, and therefore I have been studying the Bill now before us because it is a subject 1891 which is of very great interest to me. May I ask the hon. Member for Stechford whether this board, this court of moral inquisition under the Bill, is intended to deal with newspapers?
§ Mr. Roy Jenkins
I am sure that the hon. Gentleman, if he has studied the Bill as closely as he indicated, will know the answer.
§ Sir B. Baxter
I meant to say "This Bill"; I was misusing the word.
Is this Bill intended to deal with the obscenity of newspapers? Apparently not. Then why not? Unfortunately, I have only two minutes in which to prove how fully I have studied the Bill. As the newspapers have set up a Press Council to keep them on the straight and narrow path, and because I think myself that this Bill is well meaning and worthy and I do not want to talk it out. I will now sit down.
§ 3.58 p.m.
§ The Joint Under-Secretary of State for the Home Department (Sir Hugh Lucas-Tooth)
The subject matter of this Bill is as important as any that could be raised in a Private Member's Bill and is certainly as controversial. For these reasons I think that it deserves rather more time for consideration than has been given to it this afternoon, and if I am still on my feet, Mr. Speaker, when four o'clock strikes, it will be because it is quite impossible for me to explain the Government's attitude to the Bill in the minute or so that remains, when it is remembered that the passage of the Children and Young Persons (Harmful Publications) Act through the House, last Session, occupied many hours of our time, and that that Measure was far smaller in its content than anything which is dealt with in this Bill.
It is, of course—it must be agreed—necessary to draw a line somewhere between works which offend commonly accepted standards of decency—
§ It being Four o'clock, Mr. SPEAKER proceeded to interrupt the business.
§ Whereupon Mr. ROY JENKINS rose in his place and claimed to move, That the Question be now put; but Mr. SPEAKER 1892 withheld his assent and declined then to put that Question; and the debate stood adjourned.
§ Debate to be resumed upon Friday, 9th December.