§ Order for Second Reading read.
§ 11.5 a.m.
§ Viscount Lambton (Berwick-upon-Tweed)
I beg to move, That the Bill be now read a Second time.
Just over two years ago the hon. Member for Stechford (Mr. Roy Jenkins) sought to introduce a Bill very similar to this under the Ten Minutes Rule and he was given unanimous leave by the House to introduce it. Later in that year, in 1955, the Bill came up on such a Friday as this for a Second Reading under the name of my hon. Friend the Member for Stafford and Stone (Mr. H. Fraser). On that occasion it was debated for less than an hour and was then talked out by the then Under-Secretary of State for the Home Department.
On both of those occasions the hon. Member for Stechford made such an able and comprehensive speech that I think it will be impossible for me this morning not to be in a sense repetitive. Yet, as it is eighteen months since this matter was before the House, and as the Bill has since then been greatly pruned and, I hope, improved, it would be remiss of me if I were not to give some account of events which led up to the introduction of the Bill and some of the anomalies which the Bill seeks to remove.
In 1954, Sir Alan Herbert was elected chairman of a committee of authors and publishers to see what could be done to try to prevent a repetition of a number of prosecutions of publishers and authors which had occurred in the early part of that year. This committee found that so great was the chance of a different interpretation of the law that it was essential that a Bill such as this or the original Bill should be introduced to safeguard authors and publishers.
1492 Another reason that they found it so essential that the Bill should be introduced was that publishers and printers had been so uncertain of the law that they were imposing upon authors a censorship which could be far stricter than any which the law could enforce. If hon. Members think that censorship by printers and publishers is a shadow, and not a substance, I have here beside me a copy of a manuscript, a translation, which was intended to be published, by an eminent French author, three of whose plays have been presented in this country. The printer, however, had denied the publication of this book because of certain passages in it. This is merely one example of how real is the threat to genuine literature at this time.
The reason that the law is so vague is that the criterion of what is obscenity remains that as laid down by Chief Justice Cockburn in the Hicklin case of 1868. This judgment said that the test of obscenity iswhether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.This judgment has hung, as it were, like a London fog above every case of obscenity which has come before the courts ever since. The words—whose minds are open to such immoral influences and into whose hands a publication of this sort may fall"—are obviously open to individual interpretation. So it has turned out. One learned judge has taken it to mean one thing, and one another.
I do not wish to go so far as to say that this definition is in any way ridiculous. There is much in it which is comprehensible and, indeed, sound; but its weakness lies in the number of meanings which can be read into it. I do not wish to say that, as a result of it, during the last ninety years literature has had to set its standard by what is or what is not suitable for a child. But every now and again there have been most glaring exceptions to the rule of tolerance which has prevailed. The last of these came in 1954.
The pattern is always the same. The country has what one might describe as a fit of morality. The pattern of this fit is nearly always the same. One of our great national newspapers, somewhat 1493 ungrateful for that which is, in fact, the basis of its circulation, will decide that London is the modern Babylon, and that morals in this country are the talk of the world. What follows after that is automatic. Constituents write to and question their Members. Members write to and question the Home Secretary. Home Secretaries, in the past, have always considered that they should act. So certain streets or districts in London are "cleaned up", certain pederasts are imprisoned, certain publishers are prosecuted. The fit subsides, and England is safe again.
The last time this occurred was in 1954. Then we had a cleaning up. The papers announced that certain areas of London ought to be cleaned up, though whether the people cleaned out of them went straight away to previously unsullied areas is neither here nor there. The whole campaign very much smacked of hypocrisy. Later in the year, we had the Montagu case, and the very curious method employed by the police to secure a conviction. Then there were the five cases of authors and publishers brought to the Old Bailey on charges of obscene libel.
Though I do not wish to go into all those five cases, I can assure the House that one facet of them was particularly worth noticing. In each of those cases the jury very closely followed the direction given by the judge in his summing-up, which shows how difficult it is for the ordinary man to comprehend the exact meaning of obscenity. However, I will go more fully into two of the cases to illustrate the two completely different aspects of the various points of view which learned judges took. I shall refer to the summing-up of Mr. Justice Stable in the "Philanderer" case and the summing-up of the Recorder of London, Sir Gerald Dodson, in the "September in Quinze" case, which was heard a few months later.
"The Philanderer" was published in 1952 by the highly reputable firm of Secker & Warburg. It is written by an American and portrays an American in what we may well know as the contemporary scene. It portrays a weak man who, as a result of an adolescent inferiority complex which he has never been able to overcome, is unable to resist the temptation of the conquest of women. 1494 The story is an account of how he goes by one amatory adventure to another towards the eventual disaster which, as the last words of the book sum up so well, awaits him only just around the corner. It is, if anything, a moral fable, and it is not indecently told.
In his summing-up, Mr. Justice Stable asked, rhetorically, whether or not all literature had to be bounded by that which was suitable for a 14-year-old girl, or, to go a stage even further back, by what was suitable for the nursery. He gave to that his own emphatic answer, "Of course not". He added that the fact that a mass of literature, great literature, is totally unsuitable from many points of view for an adolescent does not in any way ensure that publishers shall be prosecuted for obscenity for presenting these works to the public.
That is a judgment at which very few hon. Members on either side of this House would cavil. Were it the accepted view of the law, I should not be here this morning, putting forward an idea for reform. But a few months later, Sir Gerald Dodson, summing up in the "September in Quinze" case, gave a diametrically opposite view. In summing up for conviction, he made what I must say strikes one as a slightly obvious remark, that a book which would not be expected to influence an archbishop might influence a callow youth or young girl budding into womanhood.
After the somewhat confused jury, some members of which, I believe, thought that they were sitting on a case of criminal and not obscene libel, had brought in a verdict of guilty, he congratulated the jury on realising how important it was that the youth of the country should be protected and that the fountain of our national life should not be polluted at its source.
Taking this judgment as the law, one half of our literature could be condemned. Parts of the Bible are totally unsuitable for adolescents. The works of Elizabeth and Restoration dramatists, indeed all our literature up to the Victorian era, has great patches which are unsuitable for adolescents. Yet no one would suggest that we should start reading uncensored only what was written after 1840 or 1850.
Apart from that, there is a certain fatuity in this judgment. To begin with, 1495 it is quite possible for any boy who wishes to sully his blood at the source to go into any respectable library, where he will easily find a number of books which can do the sullying for him. So what the judgment does is to lay a penalty upon new and adult literature which, in any event, is in all probability published at a price far above that which a boy or girl budding on the edge of manhood or womanhood would be prepared to pay.
I should like to make a comparison. It is exactly the same as if the head gardener in Regent's Park went one day to that rose garden there, which is the delight of so many, and saw two small children staring at a rose bed into which manure had recently been dug, and he at once called all the rest of the gardeners together and gave express orders that no manure was to be used in the garden because it was corrupting the morals of the children of the neighbourhood of Regent's Park.
As a result of this, particularly poor roses would be grown, and if this law is taken to its logical conclusion we should have a particularly thin sort of literature from the literary output of the country. This illustrates how dangerous is the law and how unworkable and unreasonable it is. Before leaving the subject of these books, I should like to ask the House to consider one effect of these prosecutions which must be completely contrary to that which those who favour prosecutions and who wish the law to remain as it is could desire.
When "The Philanderer" came before the Old Bailey, it had been published for two years. During that time just over 6,000 copies had been sold. In the words of the leading circulating library, the book was "dead." In the three months before the case came up for trial, 235 copies were sold; in the three months after the trial 4,313 copies were sold. In a period of two years before the trial 6,000 copies were sold; since the trial 15,000 copies have been sold. This merely shows that with the law uncertain, as it is, and with judgments dependent upon the whim of the judge——
§ Mr. Dudley Williams (Exeter)
My hon. Friend refers to "The Philanderer." Will he tell the House what happened at that trial, because it is important?
§ Viscount Lambton
I have just been telling the House that; and as the hon. Member for Stechford also told the House something of this in a previous debate, I do not want to repeat it. I have dealt with it far more fully than I have dealt with any other example I have given. Perhaps the hon. Member will forgive me if I leave "The Philanderer" and get on to the main argument.
As a result of these cases, there has been a public reaction to the prosecution of authors and publishers since 1954. In what one might describe as this liberal lull, respectable publishers and printers have, out of necessity for their good name and a very reasonable desire not to be brought to the dock of the Old Bailey, practised a careful censorship upon their writers; but what I might describe as pornographic publishers are now beginning to take advantage of this lull. Therefore, we have the worst of both worlds. Decent publishers are curtailing proper literature and indecent publishers are taking advantage of the situation. That is why it is so essential that there should be a further differentiation in the law as to what is pornography and what is decent. artistic literature.
The Bill, which has attached to it a very simple Explanatory Memorandum, is itself a comparatively simple one to understand. Many of the Clauses which made the Bill introduced by the hon. Member for Stechford not acceptable to the Home Office and the Law Officers have been taken out. The previous Bill has been greatly simplified and, I hope, improved. To begin with, under its provisions obscenity ceases to be a common law misdemeanour and becomes a statutory offence. The accused, in a case of obscenity, will have the right to give evidence and call witnesses. This may be a somewhat contentious doctrine, but it seems that if books which pretend to be works of art are to be pilloried in the courts, at least expert evidence whether or not they are what they pretend to be should be given.
In the earlier Bill the phrase, "intention to corrupt" was rather more dominant than it is in this one. The reason is that it is difficult to prove in law that a publisher or author intends to corrupt by what he publishes. Instead 1497 of that we have the words "guilty knowledge", and the test of obscenity is made dependent, first, upon the dominant effect of the publication; secondly upon the artistic merit of the publication; and, thirdly upon the type of person among whom it is intended that the publication should circulate.
All these seem to me to be extraordinarily reasonable. Every work should be considered by the standard laid down. It appears to me, also, that this will make it easier for genuine pornography to get that retribution which it deserves. Apart from that, the Bill ensures that destruction orders shall be dependent upon some formula of the criminal law. The Customs can seize literature only on the condition that it is brought to a magistrates' court or returned within a reasonable time to the person from whom it was seized.
Then the Bill, for the first time, defines maximum penalties. It may seem to some that the summary penalty is very severe, but the reason for providing for it in the Bill is to ensure that the accused has the right, if he so wishes, to have his case tried before a judge and jury. Lastly, the proceedings are to be dependent on the consent of the Attorney-General.
I can assure the House that I am only too conscious that the Bill is by no means perfect, but if it is given, as I hope it will be, a Second Reading and goes to Committee, we shall have the opportunity of help by Members from both sides of the House, including those of the legal profession, who may be concerned about certain aspects of it at present. It may be argued that the Bill does not ensure enough that real indecency is punished. Any suggestions from any quarters that will further that aim I shall be only too pleased later to accept, but what I do hope is that the Joint Under-Secretary of State will understand at once is how important it is that the vertebrae of the Bill, the strength of it, are its provisions relating to dominant effect, artistic merit, and intended circulation, and that they should remain.
I can assure the House that I bring forward the Bill, for which the way was prepared by the Herbert Committee, only after the most mature consideration. It is a quite considerable task to suggest that a branch of the law should be re- 1498 formed, and it may seem to some almost impertinent that one with no close association with the law should intend to do so. I can assure the House that what, perhaps, persuaded me was a speech made on an earlier occasion by an hon. Member of this House and a Q.C., who said then:The law relating to obscene libels is certainly at present irrational and uncertain.In summing up the argument for the acceptance by the Government of that earlier Bill, he went so far as to say:This is not a charter for libertines. It merely introduces a measure of reason and uniformity into this branch of the law."—[OFFICIAL REPORT, 25th Nov. 1955; Vol. 546, c. 1887–9.]As the hon. Member and Q.C. who said that is to speak for the Government today, I am sure that we shall receive from him a sympathetic response, that the Bill may be allowed to have a Second Reading, and that, consequently, anomalies which punish reputable authors and publishers may disappear and literature may flourish unfettered.
§ 11.33 a.m.
§ Mr. Kenneth Robinson (St. Pancras, North)
I beg to second the Motion.
I am sure that the Whole House would wish to congratulate the noble Lord the Member for Berwick-upon-Tweed (Viscount Lambton) upon the admirable, persuasive and, I think, quite exceptionally felicitous way in which he has moved the Motion. I should like also to express to him the gratitude of those of us who, for some years, have been agitating for reform of this branch of the law, for having taken over and improved that Bill which foundered in deep water in the House about eighteen months ago.
I think one should congratulate the noble Lord also on his courage on embarking upon the seas of socially controversial legislation, because it requires a measure of courage to suggest reform in the law upon these matters. It inevitably opens the hon. Member to attacks from the stage army of the pure, not only in this House, not only amongst his constituents, but also from farther afield. If, however, reform of these branches of the law is not brought forward by a Private Member's Bill, then it is not brought forward at all, or is not likely to be, because Governments of all 1499 political colours have shown themselves singularly laggard and reluctant to introduce reforming legislation.
The case for the Bill, which has been made out so abundantly by the noble Lord, is that the existing law is wholly unsatisfactory. It is impossible to discuss the subject without referring to Lord Chief Justice Cockburn's judgment in the Hicklin case, and in underlining one or two points about it now I do not suppose that I shall be the last hon. Member to refer to it today. I want merely to underline two things, the two really objectionable features of that judgment which, as the noble Lord said, has been in the courts of this country for nearly a hundred years the sole test of obscenity.
The first is the phrasetendency to deprave and corrupt,a phrase which automatically excludes the whole concept of intent of what, I understand, the lawyers call mens rea, and which, I believe, in other branches of the criminal law is an essential factor in establishing guilt. Because of this, virtually no defence is permitted to the publisher or other accused party.
I would quote the very wise words which were uttered by another lawyer, Judge Hand, in the United States appeal court in 1934 when he was delivering a judgment in which the recent removal of the ban on James Joyce's "Ulysses" was upheld on appeal. He said:We believe that the proper test of whether a book is obscene is in its dominant effect. In applying this test the relevancy of the objectionable parts to the theme, the established reputation of the work in the estimation of approved critics if the book is modern, and the verdict of the past if it is ancient, are persuasive pieces of evidence, for works of art are not likely to sustain a high position with no better warrant for their existence than their obscene content.Under the existing law of this country none of those important considerations can be brought forward by the defence nor taken into account by the courts.
The second part of that objectionable feature lies in the phraseand into whose hands a publication of this sort may fall.This at once introduces the notion of the innocent schoolgirl, which seems to drive judges and juries into a frenzy of moral indignation; but, after all, there are very few publications which may not 1500 conceivably fall into the hands of an innocent schoolgirl should she be sufficiently inquisitive or her parents sufficiently careless.
§ Mr. Robinson
As my hon. Friend says, even HANSARD. But can one really justify this kind of test for deciding what an adult reader today may be permitted to read?
The other objection to the Hicklin judgment, as the noble Lord said, is its vagueness. Not only is it capable of widely varying interpretations, but it has, in fact, been interpreted completely differently by different courts within the last few years. Reference has been made to the year 1954, which saw a wave of prosecutions for obscene libel reminescent, in some ways, of the unhappy period of the 'thirties when Sir William Joynson-Hicks was at the Home Office.
§ Mr. Robinson
And James Douglas was at the Sunday Express—a formidable combination.
During that year there were five prosecutions of reputable publishers, which had a result which reminds me of the progeny of the well-known lady who married a darkie—two convictions, two acquittals, and one case in which two successive juries failed to agree. The only good thing that came out of these cases was Mr. Justice Stable's summing up in the case of "The Philanderer," which has already been referred to. But whether Mr. Justice Stable's wise and enlightened words in fact supersede the Cockburn judgment in case law, I do not know, and it seems to me that nobody else knows either. At least, they seem to have stopped for the time being the wave of prosecutions for obscene libel, but, quite certainly, publishers and printers do not know where they stand under the law as it exists at present. They do not know what is safe and what is not safe from police prosecution.
The noble Lord also mentioned the very recent instance in which a reputable publisher had to abandon publication of 1501 the latest work of M. Henri de Montherlant, one of France's most distinguished novelists, simply because the printers wanted to exclude certain passages which everybody else considered were vital to the theme and plot of the book.
I believe that there is general agreement now on the unsatisfactory state of the law. It was admitted in a leader in The Times this morning, and, indeed, the previous Home Secretary, then Major Lloyd-George, admitted as much about two and a half years ago. On 21st October, 1954, I was stimulated by the action of the Swindon magistrates in ordering the destruction of a number of copies of Boccaccio's "Decameron", which had been circulating freely to the world for 600 years, to ask the Home Secretary if he would introduce amending legislation. Major Lloyd-George then replied:… this is not an easy matter on which to legislate, but I propose to look into the problem as soon as possible."—[OFFICIAL REPORT, 21st October, 1954; Vol. 531, c. 1379.]I followed that up with a Question a month later, when Major Lloyd-George replied:In consultation with some of my right hon. Friends, I am examining the law relating to obscene publications, and I will make a statement when we have completed that examination."—[OFFICIAL REPORT, 18th November, 1954; Vol. 533, c. 555.]No statement has emerged, and I do not know whether the examination is still continuing in the Home Office.
This Bill simply attempts to bring the law into line with modern thought and modern concepts. Any question involving censorship inevitably poses a dilemma. On the one hand, no normal person, I believe, likes censorship for its own sake, and it is surely part of the great libertarian traditions of this country that writers should enjoy the maximum possible freedom of expression. On the other hand, equally, no one wishes to give the deliberate pornographer a free hand to exploit the market which will always exist for his wares. It is the old conflict between liberty and licence, but no one can justify the continuance of the statutory and common law powers, sweeping, if vague, in their nature, and exercised spasmodically and arbitrarily, which hang over the heads of publishers and writers today.
1502 We believe that the Bill offers the publisher and the writer the freedom and the protection which they can reasonably expect, while effectively safeguarding the public from the pornographer. It is in that spirit that the Bill is put forward, and it is in that spirit that I hope the House and the Government will greet it.
§ 11.45 a.m.
§ Sir Lionel Heald (Chertsey)
I am very pleased indeed to have the privilege of being the first Member on this side of the House to congratulate my noble Friend the Member for Berwick-upon-Tweed (Viscount Lambton) both on his courage in introducing the Bill and also on the very persuasive, very restrained and eloquent way in which he introduced it. I am particularly glad to be in that position because I am not one of the sponsors of the Bill, and I have not been engaged in any of the previous discussions about it or in any of the proceedings of the Committees which have considered it from time to time.
I hope very much, not only that the House will give the Bill a Second Reading, but also that the Government will decide that it is right to give assistance to those who are responsible for it. I have had some experience of that in the past from both sides, first of all, as one who introduced a Private Member's Bill, and, secondly, as a Law Officer at the time when the Defamation Bill was introduced. On each of those two occasions, I think the fact that the Government felt it right to give assistance to those who were responsible for the Bill was a very important factor in their success.
All of us who have had experience of legislation, either in the position of a private Member promoting it or as a Member of the Government, know how extraordinarily difficult it is to deal with the problems that arise. I can quite imagine in a Bill of this kind that the moment might arise, if there is not close co-operation between the Government and those responsible for the Bill, when its sponsors might run into real difficulty in finding words to satisfy the objections that are raised. These crises arise even where there is that co-operation, or, where there is not, the position is indeed hopeless.
1503 I will in a few moments indicate one or two points on which I hope there will be that co-operation, but first may I say that it is sometimes felt—and this has already been touched upon—that those who support a Bill of this kind are anxious to let loose an appalling flood of filth upon the country. In fact, it is the very circumstance that the law is at present unsatisfactory that causes a greater risk of that very result, because it has been said, and it is the fact—and I know nothing about policy in these matters—that since 1954 there has been a falling off in prosecutions. There are some people who say that there has not been a falling off in the material which might possibly have been the subject of prosecution, without any objection from anyone, and therefore I feel that we have here another example of the importance of putting the law in a state in which it is understood and regarded by the man in the street as reasonable.
What is the real objection? I think the real objection is the uncertainty because of the different standards which can be applied, without any objection by way of appeal. If the facts are found in such circumstances that no one can say that there is any evidence of the Hicklin principles having been departed from, it is almost impossible to alter the result of any case. Not only that—and it would be quite improper for me to go into the details of any case—but it is perfectly clear from what has been said today that, as we all know, a different view may be taken by different judges. It was said, and I think that we should accept this without going into any detail, because it would be improper to criticise anyone in this respect, that everyone agrees that the way in which the matter was put by Mr. Justice Stable was very sensible, understandable. reasonable and workable.
A number of people said, "That is excellent. Now we know where we are. There is no need to amend the law because everyone will now do what Mr. Justice Stable did." Unfortunately, we know that within three months or so somebody did something quite different and that there was no appeal. That means that there is not the slightest justification for anyone saying that the Hicklin judgment is not still the absolute ruling decision, and it would be no 1504 good anyone saying that it has been qualified by Mr. Justice Stable. If anything were required to prove that, it is to be found in the first volume of the 1954 Law Reports where there is a criminal appeal in which it is stated quite definitely, a month or two before Mr. Justice Stable's case, that the test was still the Hicklin test and that if it appeared that the recorder had directed the jury in accordance with Hicklin nobody could object to the result.
It is interesting to follow up what the hon. Member for St. Pancras, North (Mr. K. Robinson) said about the United States. It is quite true that in 1934 that decision was given by the Supreme Court, but the fact remains that up to about a month ago no fewer than twelve States in the United States still had this absolute test—that there was a tendency to corrupt the young. Only on 25th February of this year the United States Supreme Court delivered a unanimous judgment upsetting the twelve laws. I will quote one or two sentences from Justice Felix Frankfurter. They are very relevant to what has been said today, because they bring up to date what my noble Friend was saying about the law and its tendency. Justice Frankfurter said—and it is worth recording—because it is the unanimous view of the United States Supreme Court:The State insists that by thus guaranteeing the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence it is exercising its power to promote the general welfare. Surely this is to burn the house in order to roast the pig.And the Supreme Court overruled the whole of that legislation. That is the difficulty that exists. It can be overcome only by an amendment of the law. After all, the language was very much the same when Socrates was convicted because he was, as it was said, corrupting youth.
It would be wrong for me to add anything to the very full statement already made about the basic principle of the Bill. I certainly do not quarrel with that at all, but there are one or two points which I feel are not merely Committee points and to which careful attention must be given. I can deal with one quite briefly. It is something which can be excised or modified without doing damage to the general principle of the Bill if it cannot be accepted.
1505 It is the interesting and very unusual suggestion in the proviso to Clause I that… a person who wrote, drew or composed, or printed or published the matter in respect of which the proceedings are brought shall be entitled, if he desires, to appear…That is a new conception. We know that counsel appear for those who are interested in the flitch at Dunmow, and in proceedings like the coroner's court people are allowed to appear on behalf of relatives and those interested, but in the courts, as far as I know, it is quite novel for anyone to appear in that sort of capacity. I am rather doubtful whether it will be possible to deal with this point in any way, but I quite understand the point of view. It may well be that if some small man is prosecuted he may not have the resources, the knowledge, the incentive or the desire to defend the proceedings thoroughly. It may well be that in a case where there would be a defence under the advice and supervision of the author and those connected with him that that defence would have a good result, whereas otherwise the case might go by default. I can see that argument, but I feel that there will be great difficulty in persuading the Government to adopt a very new procedure of that kind. It might spread and one can imagine all sorts of possibilities. I see that the hon. and learned Member for Northampton (Mr. Paget) wants to say something. I can imagine him appearing on behalf of all sorts of people in all sorts of cases.
§ Mr. R. T. Paget (Northampton)
I am extremely interested in the Clause and, as the right hon. and learned Member says, the highly novel suggestion. It would be very difficult indeed to fit into the procedure a method by which somebody appears as a sort of third party. I wonder whether it would be possible to provide that somebody should require that he be added to the indictment.
§ Sir L. Heald
Whether it would be possible to arrange for someone to walk voluntarily into the dock and require to be added to the indictment, I do not know, but it would be worthy of study and consideration.
Another very important point is the adoption of "guilty knowledge." I wonder whether that would be difficult. If a man comes along and gives evidence 1506 that he did not know and did not believe that there was any harm, is it right that that should be a relevant factor? Difficulties might be created because it would be necessary, as the Bill stands, for the judge to direct the jury as to what that meant. That might create some trouble.
Again, there is a point in Clause 2 about which my noble Friend said nothing. I do not complain about that, because it may be that it was discussed on a previous occasion of which I have no recollection. It relates to the inclusion of the words:… it unduly exploits horror, cruelty or violence, whether pictorially or otherwise….That, of course, is an extension of the idea of obscenity as it has generally been understood. I know that the word "obscene" does not exclude by any means such things, but I wonder whether someone would give us a little more explanation of what is intended. I feel that the expression "unduly exploited" is in itself a little unusual, because it implies that it is quite a good thing to exploit horror, cruelty or violence to a certain extent, but that it must not be done unduly. Perhaps that requires a little further consideration.
It may be said that undue emphasis on those things may have an objectionable effect, but I think we should hesitate before we introduce legislation of that kind. I think it was Mr. Justice Stable who said that we must be careful not to extend the law to cover the publication of material which is objectionable or rude or offensive, and that we must be prepared to go further than that before we invoke the law. So I wonder whether it may not be going a little too far to introduce that kind of consideration.
There are several more matters with which I will not delay the House now, but which will require careful consideration in the preparation of the Bill. Therefore, I will end where I began, by saying that I hope very much that my hon. and learned Friend the Joint Under-Secretary of State, who, I understand, will speak on behalf of the Government in this matter, will be able to tell the House not only that he is in general support of the principle—because that would be telling us only something we know already—but, what is perhaps more important, that the Government will be prepared to give assistance to those who 1507 are trying to clear up a very dark corner of the law by their courageous efforts in this Bill.
§ 12.2 p.m.
§ Mr. John Strachey (Dundee, West)
I want to add a word from this side of the House in support of the Bill, which was so felicitously introduced by the noble Lord the Member for Berwick-upon-Tweed (Viscount Lambton). In doing so I must declare an interest, as it were, in that I have a connection with the Authors' Society which, although not one of the promoters, was connected with the Bill. I am also an author. I fear that the Bill is not very relevant to the kind of books I produce, which are of a severely stodgy, economic and political character——
§ Mr. Strachey
There is always hope of improvement.
We in the profession of authors, of which I feel it an honour to be a member, hold strongly the view that this Bill is of the greatest importance to our profession. The noble Lord, in introducing it, my hon. Friend the Member for St. Pancras, North (Mr. K. Robinson), in seconding it, and also the right hon. and learned Gentleman the Member for Chertsey (Sir L. Heald), have amply shown the need for a new Measure. From any point of view, whether one thinks its provisions should be less or more strict, they have shown that the present state of the law is profoundly unsatisfactory. That is the first thing which has to be established.
The present state of the law is extremely equivocal. It leaves all concerned in the matter—author, publisher and printer—in the greatest doubt as to what their real position should be. When I came to think of it, the present state of the law puts me in mind of one of the great, broad passages in our literature. I am thinking of that famous and perhaps hackneyed passage from Shakespeare in "Macbeth," where he makes the porter say thatmuch drink is an equivocator with lechery.Well, the law today can be honestly accused of being "an equivocator with lechery," for it really does let through things which, clearly, ought not to be let 1508 through and stops things which ought not to be stopped.
That passage from Shakespeare made me wonder, as I re-read it for the purposes of this debate, how many of the earnest and no doubt well -intentioned officers of the law if they read it, and it came to them afresh, would not at once object to it. If they could not look at the cover of the book and see that it was by Shakespeare, would they not stop the book, arrest it at the Customs, and have it destroyed?
This raises the essence of the distinction which this Bill, and all reasonable attempts to alter the law, are attempting to make; that is, the distinction between serious literature and pornography. It is a distinction which it is always extremely difficult to make in an Act of Parliament, and I do not imagine that any of the promoters of the Bill will think that it will completely effect the purpose which it has in mind. It will, however, greatly improve the present situation, and in so doing it will assist the officers of the law who have the ungrateful and difficult task of administering it.
Examples have been mentioned here today of the extremely unfortunate consequences which flow from police officers, Customs officers and magistrates attempting to administer the law. Perhaps the most extreme example was that of the worthy magistrates of Swindon, in their recent action in impounding and destroying "The Decameron".
§ The Joint Under-Secretary of State for the Home Department (Mr. J. E. S. Simon)
I am sure that the right hon. Gentleman will allow me to point out that "The Decameron" was not destroyed, because there was a successful appeal to a higher court.
§ Mr. Strachey
Perhaps I should say, attempting to destroy "The Decameron".
We must, I am afraid, regard those thoroughly well-intentioned officers of the law, who make an attempt to distinguish between real literature and pornography, as the most unguided of missiles in this business. Therefore, any guidance which we can give them by means of better words, more precise words, more reasonable words, in our legislation is of the utmost importance.
1509 I am no expert in the law, and I would not like to express an exact opinion on particular words, but to the layman this short Bill makes a vast improvement on the present state of the law, on the case law and the Statute law as it exists. While it will not produce a perfect state of things, it will help, if it reaches the Statute Book, materially to produce a state of things which every hon. Member of this House desires, in which serious literature goes free and pornography is duly prosecuted.
Finally, I am not sure that I agree fully with the right hon. and learned Gentleman about the Clause which increases the severity of the enactment, and which extends the objectionable types of literature that can be prosecuted. The words in the Bill may not be well chosen or felicitous, but the intention to extend criminality to the exploitation of horror, cruelty and violence has a great deal to be said for it.
It is important to notice that in that respect the Bill proposes to make the law more severe. I am, on the whole, in sympathy with that. Our Victorian grandparents, with their almost monomania on the one subject of sex, seem to me to have been unwilling to treat severely enough the exploitation for commercial profit of these other aspects of human nature—horror, cruelty and violence—which have proved so terrible in our century if they are unduly exploited. I think that the House would be well advised, if it can, to find words which will increase the strictness of the law in this respect as this Bill attempts to do.
To a layman like myself, to a member of the profession of authors, it seems that here we have in this short Bill a very promising attempt to meet this apparently difficult problem; and we certainly very much hope that the Government will meet it with sympathy. We hope that the Government will give full and expert help in perfecting the Measure, if it gets a Second Reading, as it goes through the House. We feel that there will be a very great improvement in the law and that a far more civilised state of things will be produced if something on these lines reaches the Statute Book.
§ Mr. Strachey
What are in my mind are horror comics. It has been shown, to my satisfaction, at any rate, that there is a tendency today to exploit immature minds, obviously for commercial profit, by an extremely crude presentation, usually in pictorial form, of violence of an unlimited character. That is something that this House ought to attempt to restrain. I am not saying that it is easy to do so, and I am not saying that it might not have objections and dangers, for any restrictions on liberty have dangers, but I think that, on balance, the attempt is worth making.
§ 12.13 p.m.
§ Mr. Nigel Nicolson (Bournemouth, East and Christchurch)
The right hon. Member for Dundee, West (Mr. Strachey) began by disclosing his interest as an author. I suppose that there is not an hon. Member now in the House who could not be deemed at some time or other capable of writing a book which, in the eyes of a prejudiced jury, might conceivably come within the terms of the Bill.
But I have a rather more special interest to declare as a publisher. I have never even been threatened with prosecution in respect of an obscene publication, but it is a fear which hovers over every publishing house, though not so great a fear as the fear of prosecution for libel, which I hope one day to see amended by a similar Private Member's Bill.
In my very limited experience, I have found that the law has not been interpreted unreasonably. It is, of course, right that my noble Friend the Member for Berwick - upon - Tweed (Viscount Lambton) should, in his speech, have concentrated attention upon the five famous cases where action at law was taken unreasonably. Yet thousands of books are published every year which could conceivably be brought before a court under the provisions of the existing law, but nothing is done about them.
Every book, every novel, in particular, which deals with the subject of the relations of man and woman, even if those 1511 relations are purely platonic, must contain some incidents and even a few phrases which could be said to excite some readers. Generally speaking, however, we are fairly sane about this, and although such incidents and phrases might lead an occasional young reader into adopting practices which could be called corrupt or undesirable, nevertheless we do not think that a good enough reason for making them illegal.
I have always been rather surprised by the difference in the attitude which the law has taken towards the representation of such scenes in print and in picture. As far as I know—I may be wrong about this—there is no law against hanging in a gallery or in a house to which the public has access the representation of a scene which some might consider very offensive. It is up to the good taste of the manager of the gallery or, in some cases, the local authority. Every hon. Member who has been to the Tate Gallery knows that there are pictures hanging there, some of them painted by artists like the pre-Raphaelites, who were painting at a time when our puritanical feelings rose to a peak. which could be said to stimulate quite easily thoughts and, in some cases, practices which some would consider undesirable. Yet nobody raises any objection at all; and quite rightly.
Why should it be that if I examine a series of prints depicting the "Rake's Progress" I should not be considered vulnerable to what I see; but if I read a book about a rake's progress it is assumed that I am in imminent danger of becoming a rake myself? That does not strike me as very logical.
Nevertheless, I think it right that there should be an Act of Parliament which limits the type of literature which may be displayed for public sale. No Bill on this subject can be perfect. It depends upon the intelligent interpretation of an Act of Parliament by judges and juries. Even this Bill could not be said to make impossible the prosecution of reputable publishers and authors for obscene intentions which never entered into their minds.
It is probable that even after the Bill becomes law there will be prosecutions which most of us would consider utterly unreasonable. One cannot prevent that. 1512 One cannot devise any form of words, however much we amend the Bill in Committee, which will make it impossible for prejudiced judges and unintelligent juries to make a mistake, but what we can do is to define as clearly as possible the type of book which we do not want to see on public sale.
Here is my own definition—a book which is intended to stimulate the basest animal lusts in man and has no compensating merits.
§ Mr. Maurice Edelman (Coventry, North)
It seems to me that the hon. Member, having given that definition, is begging the question. Will he state what the compensating merits to the first part of his definition would be?
§ Mr. Nicolson
I should not like to try to give the hon. and learned Member for Northampton (Mr. Paget) a catalogue of human lusts.
§ Mr. Nicolson
That was my point: one cannot give any precise definition. One can only indicate the type of book which one wishes to ban, and that is the nearest I can get to it. It would include banning on the grounds of excessive cruelty and violence. That comes within the expression "animal lusts". Each of us has in mind the types of book which would be fitted by this particular cap.
I wish we could censor some of the readers as well as some of the books. There are people who will pick up a book of acknowledged literary merit and find material in it which can be twisted into something improper. We cannot legislate for such people. They will always exist and will always find material to feed their appetites.
I want to be certain that the Bill will be used not only to protect publishers who do not offend, but to prosecute publishers who do offend. Upon the bookstalls today are paper-backed books which, by their very covers, are obviously designed by those who wrote, printed, produced, published and sold them, to stimulate exactly the type of appetite which we are discussing. Is anything 1513 to be done to remove these books from the bookstalls? It is rather strange that the very people who sell such literature should themselves ban a book attacking the practice of selling them.
Any publisher can produce a book, which in its author's mind was purely innocent, in such a way that it becomes culpable. We can imagine a book like "Gulliver's Travels" being dolled up with modern illustrations and produced and priced very cheaply. Price, illustration and format will play a great part in the decision which any jury will have to take under this Measure. Some books, though originally without blame, can be made culpable by the method and style of their production. It should not be accepted by judges and juries that once a book has been passed as a work of literature, it should always be acceptable in whatever form it is produced, particularly when it is accompanied by certain types of illustration.
I will not go further into detail, but congratulate my noble Friend upon his enterprise in bringing forward the Bill, which will be welcomed by publishers, authors and public.
§ 12.25 p.m.
§ Mr. Maurice Edelman (Coventry, North)
At the outset, I would declare a small interest in this matter. As with Mr. Bernard Shaw, and the Sunday Express, my work has been banned in Southern Ireland. However, I will endeavour not to allow that fact to influence my view of the Bill, which I welcome wholeheartedly.
I congratulate the noble Lord the Member for Berwick-upon-Tweed (Viscount Lambton) on his presentation of the case against the existing law and in favour of the reforms which are contained in the Bill. I am sure it will have the effect of protecting authors against the bigot and the public against the pervert.
Having said that, I would make a few suggestions which, I think, would have the effect of improving the Bill. There is one objection which is probably more a matter of phraseology—indeed, it goes beyond that to some extent and touches the matter of definition—to which the hon. Member for East Bournemouth and Christchurch (Mr. N. Nicolson) referred. One thing is certain; it is that sex is a 1514 matter of taste and that the standards of pornography, and, therefore, of obscenity, have changed. The standards which the Victorians applied to literature and to the assessment as to whether literature was obscene or not are at variance with those which we would apply today.
The basic thing to remember is that since the time when our own legislation and our common law established precedents for action in the case of obscenity and pornography, we have broadened the frontiers of our understanding of sexual matters. Much which in Victorian times was not permitted at all is now common currency in matters affecting obscenity and pornography. I will refer to this point later, and particularly to the Clause which deals with the undue exploitation of violence and horror. That clearly embraces within its scope the whole question of sadism.
But to return to the standards of the Victorians. It is not so many years ago that Victorian conventions persisted in literature to the extent that one could refer to "breast" in the singular, but not in the plural. Any use of the plural of the word "breast" was something which the publisher's reader would frown upon, because it might incur the moral reprobation of readers of the book. That is one small example of the extreme puritanical attitude which regarded even the act of writing a novel as something indecorous, like going to the cinema in the afternoon.
§ Mr. Emrys Hughes (South Ayrshire)
Is my hon. Friend aware that it extends even to the publication of speeches made in this House? Recently I was asking the Secretary of State for Air a question about the cost of a bomber. A Government supporter interrupted me and said, "It is a hell of a lot". It was reported in HANSARD as:It is a deuce of a lot".—[OFFICIAL REPORT, 7th March, 1957; Vol. 566, c. 630.]
§ Mr. Edelman
I am obliged to my hon. Friend for further illustrating how the change in convention has an effect on the author. These changes in standards must be taken into account specially in determining the phraseology and the terminology of the Bill.
In the matter of novel writing, may I make a personal reference? When I 1515 wrote my first novel a venerable member of the Labour movement said, after he read it, "This will do the party no good". I regret that, in the circumstances, I did not regard that as necessarily an impediment in writing further novels. It shows a certain state of mind which would render it extremely hazardous to leave the ultimate judgment of definition and interpretation of obscenity to the generality—to allow a jury, for example, to come to a simple decision on what constitutes obscenity—unless we in this House had made a closer statutory definition of what it really is.
The Clause which deals with the exploitation of cruelty and horror is one which I particularly welcome, because for a long time many hon. Members have tried to attract the attention of other hon. Members, and of the country as a whole, to, for example, the widespread sale of horror comics which clearly have a corrupting influence on the young. In the face of the difficulties and despite the good will of the Home Office, I do not believe that we have yet reached a satisfactory situation in which sadism—because that is what it essentially is—can be adequately restrained.
While it is true that we have a number of prosecutions for obscenity and pornography, the fact remains that throughout the country—and it is no use begging the question—there is a public mood which tolerates all kinds of concealed pornography, concealed in the sense that it is not acknowledged though it is very much apparent in the sense that it is published on the hoardings and bookstalls. I am thinking chiefly of the exploitation of horror and violence on cinema hoardings, where we see advertisements of films clearly sadistic in intention. I think that there should be some means by which the exploitation of sadism in this covert way should be restrained, because I regard that, certainly, as one of the most corrupting influences in our public life today.
There is one passage in the Bill about which I have grave doubts. That is the Clause which deals with the calling of expert evidence. As I said before, sex is a matter of taste and what one person might regard as perfectly normal may seem completely abnormal to another. I see no advantage at all in calling as an 1516 expert witness a homosexual critic who would regard normal, robust hetero-sexuality as something indecent and, certainly, unattractive. I see no merit at all in calling in so-called experts of that kind except, possibly, to give evidence of personal knowledge of the accused person. So far as expert evidence as to the essential literary merit of the work itself is concerned, I certainly would not accept it as in some way qualifying or mitigating the pornographic content of the work.
I personally do not see—I think that the noble Lord touched on this in his opening remarks, and it is one of the few things on which I disagree with him—that literary merit in itself is necessarily a factor in judging whether a work is pornographic or not. It is well known that one of the great classics of pornography was written by Albert de Musset. No one would criticise his value or merit as a writer, yet, undoubtedly, the work to which I have referred is pornographic.
It is one which, although it is written more subtly and more elaborately than the graffiti in public places, is something which I do not think ought to be exposed for sale to the public and certainly should not fall into the hands of the young. Therefore, the simple point that I want to make is that literary merit in itself is not necessarily a mitigating circumstance where the charge is one of pornography. I do not think that this Clause, which invites the summoning of expert evidence, really adds anything at all to the merit of the Bill, and I hope that in Committee something will be done about it.
I always believe that it is fatal to leave the initiation of actions in these matters, or prosecution in these matters, to watch committees, to chief constables or to curious individuals who themselves, for some obscure reason, feel obliged to involve themselves in matters of this kind. I welcome the fact that the initial prosecution under the Bill will fall to the Attorney-General, because whatever one may think of the Attorney-General of the day—I am talking about the Attorney-General in any Parliament—he is certainly advised by the balanced judgment of legal experts and men of experience—of men who have some understanding of the issues involved.
1517 In all the great cases of history where there have been prosecutions for pornography, such as the "Fleurs de Mal" or "Madame Bovary", we had the initiative taken by the police at the behest of an informant. I think that we want to get away from that. If one looks back over the whole conspectus of these cases, one finds almost invariably included in the indictments considerable works of art which should never have been involved in those sordid prosecutions. So, today, I welcome the fact that we have a liberal Home Secretary, and a particularly liberal Under-Secretary, who will be responsible for accepting the Bill and bringing it into law.
It would be improper for me to end if I did not also congratulate my hon. Friends on this side who, in conjunction with Sir Alan Herbert, have done much to produce this projected reform. I certainly hope that it will be brought into law very soon.
§ 12.36 p.m.
§ Mr. Dudley Williams (Exeter)
I feel that I am probably the only man in the House who wishes to oppose this Measure. Before starting my speech, I should like to congratulate my noble Friend the Member for Berwick-upon-Tweed (Viscount Lambton) on the technique with which he introduced the Bill, even though I do not propose to support this particular piece of legislation.
I want to begin my remarks by making a small criticism about the way in which this Bill has been introduced into the House. The Bill was first published on 22nd March, which is exactly a week ago. It is a short Bill, but it deals with a very complicated subject. I think that in Clauses 1 and 2 there are such subtleties of language that their meaning and practical effect are extremely difficult to follow unless one studies them extremely closely.
I think that in publishing the Bill one week before it is to be debated on the Floor of the House very scant consideration is shown to the convenience of hon. Members. After all, this is not a new subject. As several hon. Members have said, a similar Bill was introduced into the House in the last Session of the last Parliament, and I believe it is maintained that this Bill is really a redraft of that Bill to meet certain criticisms by the Home Office.
1518 Only the other day, when I was trying to check up on some of the background of this Measure, I read in the New Statesman and Nation of 15th December, 1956, an article entitled "Other People's Bills", by Mr. C. H. Rolph, which stated:This Bill, the work of a committee led by Sir Alan Herbert, has been redrafted to meet certain 'friendly criticisms' offered by the Home Office legal department after its failure last Session.The writer of that article was a member of the committee of the Authors' Society which drafted the Bill.
It must be assumed that the criticisms of the original Bill by the Home Office were made known to that Committee before the date of that article, namely, 15th December last. In fact, the list of members of the committee is given in a footnote on page 121 of the book by Mr. St. John-Stevas, called "Obscenity and the Law." In that list appears the name of Mr. C. R. Hewitt, who, as most people know, writes under the pen name of "C. H. Rolph." Why was the Bill published at such short notice? The issues raised by it are very complicated, and many hon. Members would have liked further time to consider them.
§ Viscount Lambton
I must take responsibility for the Bill being published at such a late date. The reason is that we were trying to draft a Bill which was most likely to be agreed to by hon. Members on both sides of the House. At the same time, I would remind my hon. Friend that if he had wished to know what was in the Bill he could have looked at copies of the earlier Bill, which this in so many ways resembles.
§ Mr. Williams
I appreciate that, but this is a new Bill. It is not exactly the same as the last one. I want to register this protest. This is not the case of a Bill introduced early in the Session by an hon. Member fortunate enough to draw a high place in the Ballot, which would come on on one of the first days appointed for the consideration of Private Members' Bills; this is one which is lower down the list, and it is a great pity that it was not published earlier.
The supporters of the Bill base their case on the importance of allowing authors and publishers freedom to express themselves without an undue fear of interference by the law. The Bill 1519 is drafted with the interests of those persons in mind. It has already been said—and I will repeat it—that there is no question of any hon. Member, least of all the promoter and his supporters, being in favour of allowing pornographic literature to be distributed all round the country. I know that my noble Friend is as strong a supporter of the suppression of pornography as anyone in the House. I know, however, that it is properly a task of the Government to suppress pornography, and I hope that nobody will suggest anything different. Part of my case is that, while making things easier for authors, the Bill will make it extremely difficult for those who have to uphold the law to carry out their duty of suppressing literature of the type that I have indicated.
The existing law on this subject has stood for over 100 years. Although that fact does not necessarily establish its suitability for present-day conditions, unless we can find some serious faults in it—and I submit that in that respect the promoters have not made out a case—the mere fact that it is long-established does not necessarily condemn it. The existing law should be judged only by the way it has worked out and been operated during the last century.
§ Viscount Lambton
Was my hon. Friend satisfied with the working of the law in regard to the five cases in 1954?
§ Mr. Williams
If my noble Friend will allow me to continue, I shall cover that aspect of the matter later. It is part of my case that no serious harm was done by those five prosecutions.
Since the supporters of the Bill are concerned with the way that the law has worked in relation to serious works of literature and scientific value, it should be judged by the way in which such cases have been handled. In the little time that I have had at my disposal, I have been able to find no better information upon this subject than is contained in the book to which I have already referred, namely, "Obscenity and the Law." This book is a very comprehensive work, beginning with the early history of obscenity in literature and art and including chapters upon the eighteenth century and the Victorian conscience.
1520 In considering whether we should alter the present law, it is suggested that it is not necessary to go back as far as that. I should have thought that, if we are going to amend the law in the middle of the twentieth century, an account of things done and thought in the Victorian age would not necessarily be of importance. I shall therefore concentrate on that part of the book which deals with experience in the twentieth century. A whole chapter is devoted to that period.
According to the book, the earlier part of the twentieth century was characterised by attacks upon immorality in literature by various bodies such as the National Vigilance Association, the Public Morality Council, and also several newspapers, in particular the Daily Express. As we know, that newspaper is still a strong critic of any easing off which may tend to lead to further distribution of pornographic literature. The book goes on to explain how large circulating libraries refused to take up certain books.
What we are concerned about, however, is what has happened in the last few years in regard to the interpretation and the operation of the law. The first indication of the law taking any hand in this subject in the twentieth century was the destruction, in 1915, of an edition of a novel by D. H. Lawrence, entitled "The Rainbow." That was forty-two years ago. The book has since been published as a Penguin Book. The next case concerned the book called "Ulysses," by James Joyce, which, as an hon. Member stated quite correctly, was published in the United States of America in 1922. In 1923 a consignment of 500 copies was intercepted by the Customs authorities at Folkestone and destroyed, but in 1937 the book was published without any further molestation. It has been circulating in the country ever since.
§ Viscount Lambton
Is it not the case that my hon. Friend is merely giving examples of books which have been suppressed for a short time and have afterwards become non-prosecuted, and been deemed fit for the public to read?
§ Mr. Williams
If my noble Friend will contain himself for a moment, If shall deal with that aspect of the matter. I know that he is very keen to make his points. Both points upon which he has intervened will be settled to his satisfaction later 1521 on; at any rate, they will certainly be settled to my satisfaction.
The next important case concerned the book called "The Well of Loneliness," by Radclyffe Hall, which dealt with the question of sex relations between women. According to Mr. St. John-Stevas's book, this case aroused considerable comment. I vaguely remember some of the correspondence and articles which appeared in various newspapers. The Home Secretary of the day, Mr. Joynson-Hicks, tried to do his duty, and I think that at that time, in 1928, he was right to suggest that the book should be withdrawn. The book was, in fact, withdrawn by the publishers, Messrs. Jonathan Cape. A new edition was printed in Paris and brought over here but, before it could be distributed, proceedings were instituted for its destruction, and the court subsequently decided that this decision should stand. Once again, this book had since been published, and no further action has been taken.
In 1928 there was the publication of Mr. D. H. Lawrence's "Lady Chatterley's Lover." It was published, not in this country, but outside it. Attempts were made to import it, but they were frustrated by the Customs authorities. There is no record of any court proceedings concerning that particular book. Three other books were the subject of prosecution prior to the Second World War, but, according to the author of "Obscenity and the Law," not much of a stir appears to have been caused.
The first book published that referred to the period after the last war was "The Naked and the Dead." There was a Press campaign in 1949 for the law to be invoked to get the book banned. The authorities would take no action. The case was dealt with personally by the Attorney-General of the time, the right hon. and learned Member for St. Helens (Sir H. Shawcross), who made a statement to the House of Commons on 23rd May, 1949. He said that he was… not prepared (o say that no court would treat this regrettable publication as obscene.The word "regrettable" was used by the right hon. and learned Gentleman himself, but he said that he had never regarded it as his duty to institute proceedings in every case where it could be sustained that an infringement of the law had taken place. He went on to say that 1522 there were two public interests to which he must have regard. The first was that it was important… that no publication should be permitted to deprave or corrupt morals, to exalt vice or to encourage its commission.That was one of the things that he had to bear in mind, and with it he had to balance a second. He said that it was… also important that there should be the least possible interference with the freedom of publication …He also said that he did not propose, whilst he held his office, to be a party to trying to make… the criminal law a vehicle for imposing a censorship on the frank discussion or portrayal of sordid and unedifying aspects of life simply on the grounds of offence against…"—[OFFICIAL REPORT. 23rd May, 1949; Vol. 465, c. 872–3]the taste or good manners of the overwhelming majority of the people in the country. To that statement I do not think that anyone could take exception, least of all the promoters of the Bill.
I see that my noble Friend has left the Chamber, but I now come to what he referred to, namely, prosecutions——
§ Mr. Anthony Greenwood (Rossendale)
Is not the hon. Member intending to complete the quotation of the words of my right hon. and learned Friend the Member for St. Helens (Sir H. Shawcross)?
§ Mr. Williams
I am afraid that I have not a note of the complete quotation, but no doubt the hon. Member will give it to the House when he has the opportunity.
§ Mr. Williams
The hon. Gentleman will have an opportunity to make his point if he catches Mr. Speaker's eye.
In 1954 there were these prosecutions against the publishers of five books. Some reference has been made this morning to those prosecutions, but I want to go through the lot and see what happened in all five.
In two cases there were convictions, and one of the convictions took place after the person charged had pleaded guilty. In another case, there was a straight acquittal—and I should have 1523 thought that that was certainly a matter worthy of investigation by the courts. It was the story of a young girl of 17 who was corrupted by a confirmed lesbian. However, there was an acquittal in that case. In the other two cases, the jury did not agree, and on retrial there were technical acquittals.
§ Viscount Lambton
I am sure that my hon. Friend is wrong. Only in one case did the jury not agree. They disagreed twice in the one case.
§ Mr. Williams
I give way to my noble Friend on that. Perhaps it was in one case that they disagreed twice. Speaking from memory, I thought that there were two cases, but I will not argue the point with my noble Friend.
Mr. St. John-Stevas offers two suggestions why this particular campaign was carried on and why these five prosecutions took place. The first is that the campaign was undertaken at the request of the then Home Secretary in an effort to form public morals, and the second is that the campaign followed adverse comments by the Lord Chief Justice. I do not know what caused that burst of activity by the police, but I cannot believe that the prosecuting authorities can have been very impressed by the results if it was their intention to secure a number of convictions.
The other case to which I wish to refer was the seizure of the "Decameron" in 1954 on the instructions of the Swindon magistrates.
§ Viscount Lambton
I cannot quite make out where my hon. Friend is going. He said that he supports the law as it stands. In 1954 there were two interpretations of the law which were diametrically opposed to each other. One was in "The Philanderer" case and the other was in the "September in Quinze" case. Which interpretation does he support?
§ Mr. Williams
I do not know where my noble Friend gets the idea that I support the law as it stands. I do not do anything of the sort. What I am doing is opposing the Bill. I am not suggesting for a moment that there should not be some alteration in the law, but I do not think that this is the way to do it. If my noble Friend will once more control himself he will find, when 1524 I come to the end of my speech, that I shall explain why I decline to give my support to the Second Reading of this Bill.
The case concerning the "Decameron" was also the subject of an appeal to the Wiltshire Quarter Sessions, when those sessions decided that instead of the book being destroyed it should continue to be displayed for sale. There was really a tremendous amount of fuss about the case. There is not the slightest doubt that the Swindon magistrates overreached themselves and that the "Decameron" should not have been ordered to be destroyed. However, that decision was put right by the machinery of the law when the case was taken on appeal to the Wiltshire Quarter Sessions. Surely, if a mistake is made by a bench of magistrates, it does not necessarily prove that there should be an alteration to the law of the whole country.
To summarise, there were, admittedly, some half a dozen books suppressed in the 'twenties and 'thirties—and the cases after the last war to which I have referred. The best of those suppressed before the war are now in circulation, and, I maintain, that shows that the law today is reasonably flexible and is not interpreted in a harsh and restrictive way. I think that the law is administered to keep pace with the change in public opinion and taste, and the fact that there were these cases—most of them taking place twenty years ago—is not an occasion for the promotion of this Bill, although. as I said to my noble Friend just now, I believe that some alteration in the law is desirable.
The real reason for the promotion of the Bill is the alleged campaign in 1954. As I said earlier, there were only two convictions in five cases. I think, therefore, that the case for a change in the law to deal with this small class of book is very thin indeed and that the supporters of the Bill are inclined to overplay their hand.
Nevertheless, there would be possibly no objection to conceding changes in the law if the changes were so designed that they made no difference to the effectiveness of the law in suppressing the much bigger class of purely pornographic works, and it is the aspect with which I want to deal now and which I wish to 1525 leave in the minds of Members when I resume my seat.
There is no certainty that the present Bill will ensure this position. The crux of the matter lies in Clauses 1 and 2. Criticism has been made of the fact that the existing law is obscure. Certainly I think Clauses 1 and 2 are so obscure that most laymen may be forgiven for wondering what interpretation can be put upon them.
Clause 1 makes it an offence for a person "wilfully and knowingly" to distribute or writeany matter which to his knowledge is obscene.How will this apply to the author of a novel? To make it an offence, the Clause requires an author to write an obscene work "wilfully and knowingly." What is the effect of this? An author certainly cannot avoid knowing what he has written. If it is obscene, he cannot avoid knowing it if his standards in connection with obscenity are the same as those of the majority of people. What happens if they are not?
Much publicity has recently been given to the seizure by the Customs of certain works of a French writer, M. Jean Genet. The Times Literary Supplement of 20th March, 1953, contains a review of previous works of M. Genet by M. Jean-Paul Sartre. The article states that M. Sartre holdsa philosophic conviction which makes of evil a myth created by the respectable.This conviction apparently predisposes M. Sartre towards the works of M. Genet. which are described incidentally elsewhere in the article asrepugnant sinks of eviland ascomposed of stories of horrifying vulgarity.Apparently, an author who held the same philosophy as M. Sartre could defend himself against a prosecution under my noble Friend's Bill by saying that he did not "wilfully and knowingly" write an obscene book because the word "obscene" could have no meaning for him. Since evil is a myth to him, nothing that he might write could possibly corrupt anyone. In fact, it could only be looked upon as a release from the bondage of the myth to which I have referred. I maintain that nothing done by that man with that belief in his mind 1526 could bring him within the scope of this Bill.
§ Mr. Roy Jenkins (Birmingham, Stechford)
Could the hon. Gentleman tell us why somebody holding this philosophy could not equally well defend himself against a charge of murder where one has to show a guilty mind, just as one is obliged to show a guilty mind in this case?
§ Mr. Williams
I believe that a case might well be made out in support of that contention. My right hon. and learned Friend the Member for Chertsey (Sir L. Heald) may well think that some sort of defence could be put forward if one really did not look upon murder as an offence.
§ Sir L. Heald indicated dissent.
§ Mr. Williams
If a man said that he did not look upon a book as obscene, I really believe that he would have a reasonable defence.
§ Mr. Anthony Kershaw (Stroud)
As I read the Bill, it saysobscene within the meaning of this Act.It does not say "in the opinion of the writer."
§ Mr. Edelman
May I support the hon. Gentleman? He has rightly referred to the calling in of Jean-Paul Sartre as an expert witness in order to establish that Jean Genet is a first-class writer and not a pornographer. Does that not support the point which I originally made, that the calling in of expert evidence is of no validity in the Bill and is a defect of the Bill simply because one might have like-minded people who are perverts, possibly pornographers, and who may show a similar corrupt taste, and may be called as experts to support each other. That establishes the point that the Clause inviting the calling in of expert witnesses is a Clause which weakens the Bill.
§ Mr. Williams
I believe there is support for what the hon. Gentleman says. 1527 I would make a different point, that the man would have an effective defence himself if he said that he held the views to which I have just alluded.
I would now like to turn to the question of the retailer of pornographic books. It is necessary to prove that the matter in the books is obscene. Surely, if the retailer were selling a pornographic book with an ordinary simple cover, and not one in a lurid paper back, he could without much difficulty say that he bought this book in good faith, that he read it and did not know that it was obscene. What about people who sell editions of respectable classics which happen to have pornographic illustrations? Surely the seller could make an effective defence by saying that he did not know the illustrations were in the book.
I maintain that if the Bill is passed, it will be extremely difficult to convict anyone who is engaged in the writing or distribution of pornographic books. Clause 2, for instance, states that to prove a work obscene it is necessary to prove that its dominant effect is such as to be reasonably likely to deprave or corrupt persons to whom it was intended to be distributed.
How can one accuse the author in such cases as that? He can always have a valid defence by saying, "I did not intend it to be distributed to school children. I did not intend it to be distributed to everyone in the country. I intended my book, which was a study of perversion, to be distributed amongst medical students and such people", putting the matter right outside the possibility of prosecution.
To sum up, I believe there is a lot of very special pleading where this Bill is concerned. I do not believe there is a demand for a Bill of this nature immediately. I agree with my noble Friend that there should be some amendment to the law, and I would suggest to the Joint Under-Secretary of State, who I believe will be replying to the debate, that a Departmental committee should be set up to examine the whole question to see whether it would be possible to have another Bill which would cover the subject more adequately than the one we are considering today. I hope that the Bill will not get a Second Reading.
§ 1.10 p.m.
§ Mr. Somerville Hastings (Barking)
Not being a publisher, author or lawyer, I want to try, however imperfectly, to approach this subject from the point of view of the ordinary public, the man in the street. I very much welcome the Bill for two reasons. First, it seems to clarify the law, and, secondly, to extend its scope.
The Bill appears to me to clarify the law, because—here, I do not accept the view of the hon. Member for Exeter (Mr. Dudley Williams)—the question of intention is introduced. It is quite clear that a book with a lurid picture outside is intended to catch a young person who wants excitement, whereas the sombrely bound classic, even if it is an Elizabethan play, has not that intention at all. I quite admit that young people may read such classics, but they either do not understand them or they read them to try to learn from them the facts of life which they ought to have been taught, or about which they ought to have been able to obtain information in some other way.
The matter of intention is very important. The words of the Bill are:Any such matter shall be deemed to be obscene … if … its dominant effect is such as to be reasonably likely to deprave and corrupt persons to or among whom it was intended to be distributed …Contrary to the view of the hon. Member for Exeter, I believe that it would be for those concerned in any case to determine the intention.
More important, in my view, is the manner in which the Bill extends the law. The words are:Any such matter shall be deemed to be obscene … if … it unduly exploits horror, cruelty, or violence, whether pictorially or otherwise.It is about this that I want to speak. For a good many years I have been chairman of the management committee of a remand home for boys. I have taken a good deal of interest in my work there, and I have tried to find out why young children get into trouble. With many of the younger ones. the reason is that they are unhappy at home; not a few of them are jealous.
A small boy of eight, a short time ago, was picked up by the police for stealing and found himself in this remand home. I asked him why he stole. He said, 1529 "Because my mother does not love me." When I asked him what made him think that, he said, "She gives everything to my little sister." There was a case of jealousy. But in the case of the older boys, the cause of delinquency is usually different.
There are exceptions, but, by and large, the older boys, whom I know so well, who get into trouble and are incarcerated for a time in a remand home, are of rather low-grade intelligence. An inferiority complex drives them to try to do something to get recognition. Their rather low-grade intelligence makes them ready to be influenced by what they read about or see in the cinemas, and to try to imitate it. I frankly admit that the cinema has a greater influence than literature, but some of the undesirable publications, the horror comics and books which have been described today, have a very undesirable effect on these children.
I believe that this Bill, if it becomes law, will be of great help by extending the law so that, in the words of the Bill:such matter shall be deemed to be obscene … if … it unduly exploits horror, cruelty or violence.Many publications might be shown to be doing those very things which are so undesirable in the case of young people. Therefore, not only because it seems to clarify the law, but because it extends the provisions of the law to include the exploitation of horror, cruelty and violence, I hope that the Bill will receive a Second Reading. I do not regard this extension of the law as an objection to the Bill, as some do. In my view, it represents an advance.
I congratulate the noble Lord the Member for Berwick-upon-Tweed (Viscount Lambton) for his courage in bringing in the Bill and for the clarity with which he expounded its purpose.
§ 1.17 p.m.
§ Mr. Anthony Kershaw (Stroud)
I welcome the Bill. In doing so, I should like to make clear that, to follow the words of my right hon. and learned Friend the Member for Chertsey (Sir L. Heald), my support of the Bill does not in any way indicate that I, any more than other hon. Members, have a desire to let loose upon the country a flood of filth. In fact, I welcome the Bill for exactly the opposite reasons. In order that the law may 1530 be clarified and made much more certain in its operation, the Bill should, in my opinion, get a Second Reading.
The common law on the subject of obscenity is, without any doubt, rather vague. It was, I think, Napoleon who said that a constitution should be short and obscure, and, no doubt, from his point of view, that is a sound principle. It is to some extent the merit of our common law that it is short, and, because of its obscurity, it has been interpreted by judges through the century and has thus kept pace a little with modern life in a way that the statute law cannot so easily do.
Unfortunately, the law with regard to obscenity solidified at a very inopportune moment, and when it did so solidify in the case of The Queen v. Hicklin in 1868, our social institutions were not perhaps so enlightened as we should now like to see them. Moreover, although this test has been laid down, as we have heard this morning, in The Queen v. Hicklin, several interpretations can be given to that case, and inevitably the law is not in fact being obeyed today. Any law which is so obscure that it is uncertain whether it has application in any particular case or not, must, in my view, be bad.
It has been said that parts of the Bible would certainly come under the axe, if they were subjected to the test in Hicklin's case, and the same would apply to large sections of the works of Shakespeare and other ancient authors. Indeed, almost any book written before 1868 might find itself subject to a ban if the law were strictly applied. But it is not. We have the extraordinary position that books written before the case of The Queen v. Hicklin in 1868 are by tradition normally allowed a great deal of latitude, but books written since are subject to this qualification laid down nearly 100 years ago.
I know that the prosecution against the publisher and the displayer of the copy of the "Decameron" in Swindon was acquitted on appeal at the quarter sessions, but on looking at the law one sees that it was surely merely an act of common sense on the part of the justices, because it is quite clear that the "Decameron" does offend against the law of obscenity. I would say that a large number of other books which by tradition are permitted to circulate, and 1531 which no sensible person would say are obscene, are, in fact, infringements against the law as it stands.
I welcome the provision in the Bill which makes the intention of the author or publisher an ingredient of the offence. That absence of intention at present is a very serious defect. Here, again, it has been entirely disregarded in the administration of the law. For instance, there are those very worthy books about marriage guidance which are written for good medical reasons. I do not think that anybody could seriously challenge that under the law as it stands they are an offence. They are certainly likely to have a serious effect upon children just coming to the age of manhood or womanhood, but they pass with general consent as being serious literature upon an important subject. I would say that they are quite clearly an offence against the present law, because the intention of the writer is neither here nor there.
Under the law as it would be changed by the Bill, if it is clearly the intention of the writer to educate in a medical or psychological way the people for whom the books are intended, that puts him in the clear. Under the present law, I think that Dr. Marie Stopes, and all the rest of them, ought to be behind bars, but no one ever suggests that they should actually be put there, because the law is administered with a lot of common sense.
I think that the publications of Her Majesty's Government have often been offences against the law, in particular those publications about the horrors which took place in the Nazi concentration camps in the last war. I think that the book written by my noble Friend Lord Russell of Liverpool, "The Scourge of the Swastika," is definitely an offence against the present law. I hear an hon. Member opposite exclaim; I do not know whether he has read the book. I tried to read it and I had the greatest possible difficulty in getting through it because the tales it told were so nauseating. It is all true and all about things we ought to know, but it is an offence under present law to publish a book like that.
This Bill will get rid of that extraordinary situation by the change it makes in respect of the element of intention. In Clause 2 there is a matter on which I 1532 agree with my hon. Friend the Member for Exeter (Mr. Dudley Williams), with the rest of whose speech I found myself largely in disagreement. Clause 2 (a) refers to the… dominant effect "—of a publication being—such as to be reasonably likely to deprave and corrupt persons to or among whom it was intended, to be distributed…I hope that the sponsors of the Bill will examine that Clause in Committee to see whether or not there is substance in the objection of my hon. Friend the Member for Exeter who said that, apparently, it would be possible for a homosexual to write books for homosexuals and to plead that, as the books were privately circulated merely to friends whom he happened to know were also homosexuals, no offence was therefore being committed. I hope that that will be examined. I dare say that it is something which can be corrected by good draftmanship.
Like the hon. Member for Barking (Mr. Hastings) I welcome Clause 2 (b), because it does not confine obscenity only to sex. It is my opinion that pictures or horror and violence are far more depraving and have a far greater harmful effect upon young people than any amount of suggestions about sex. After all, everybody has sex. Everybody knows a little bit about that, but nobody, I hope, will concentrate on cruelty, violence or horror unless he is to some extent unnatural. It is to prevent the stimulation of these unnatural rather than the natural attributes that I welcome the clear indication in the Bill of the proposition that cruelty, horror and violence are infinitely more obsence than ordinary sex.
The decision in The Queen v. Hicklin, and the way in which we have been brought up since perhaps the beginning of the Victorian age, suggests that sex is the most important part of obscenity. It is my belief that it is not. I think that the experiences which we have gone through, especially in the last twenty years, show the terrible horrors which can take place if young people are depraved. It has been said—I believe that it was in Lord Russell of Liverpool's book—that it was only as a consequence of the Nazi authorities having trained 1533 these bands of thugs through the period since the 1920's that they managed to get people who were physically capable of perpetrating the enormities which later we saw in the concentration camps of Europe. It would have been impossible to get people fresh from normal life to run those hellish establishments. It was only because, so to speak, they had been at it for years under the stimulus of their depraved leaders that they managed to get the guards and the people to command those camps.
I believe that those two provisions—the introduction of the element of intention, which I think will clear up the law, and the clear indication that the element of cruelty is important in obscenity—are very important. I hope that the Bill will be given a Second Reading and that it will clear up the law and make it more respected so that we can reduce the amount of pornographic and other undesirable literature available in the country.
§ 1.28 p.m.
§ Mr. Douglas Houghton (Sowerby)
I welcome the Bill. I was very ready to allow my name to appear in the list of sponsors. I have no interest to declare. I have written nothing worth while and I have published nothing. I have no interest to declare even in the books and literature which might come under existing law or under the Bill. I am one of those upon whom my right hon. Friend the Member for Dundee, West (Mr. Strachey) relies to read the books that he writes. If that is one's branch of literature, there is very little time for anything else.
The hon. Member for Exeter (Mr. Dudley Williams) struck the only discordant note in the debate so far. I regret that he has left the Chamber and has not been able to stay to hear some comments on his speech. I find no ground whatever for his complaint that the Bill had been published at short notice. After all, those of us who have taken an interest in this matter have kept abreast of developments, and the hon. Gentleman himself showed that he was a very close student of these affairs and if he had read that book, "Obscenity and the Law," by Norman St. John-Stevas, from which he quoted liberally, 1534 as I am sure he had nothing in the Bill should have taken him by surprise.
The Bill is necessary not only to give us more certainty in the law, but to give us greater freedom of publication without the threat of the law. Both purposes of the Bill must be taken into account. Some hon. Members have referred more particularly to existing doubts under the law and differences of interpretation. I certainly want to remove these doubts and uncertainties, but I want to get more freedom of publication. I would rather the Press be free than decent. One can improve public taste, I think, rather more quickly than one can improve the law.
Both will take time and be painfully slow, but I am in favour of greater liberality, more relaxation of the law, rather than of tightening it up. In legislating for public taste we can deal only with basic evils. To try to legislate for refinements of undesirable practices or tendencies is to give rise to all the difficulties of interpretation of which we have heard this morning and of which we have read in the judgments of the past.
As I see it, if the sponsors of the Bill could have been certain that the judgment of Mr. Justice Stable would hold the field we should not have been unduly concerned about amending the law, but, as the noble Lord the Member for Berwick-upon-Tweed (Viscount Lambton) told us in his admirable speech, Mr. Justice Stable's judgment has not endured. If the reply given to a Question in the House by my right hon. and learned Friend the Member for St. Helens (Sir H. Shawcross) on 23rd May, 1949, were to hold the field I do not think that it wold be quite so necessary to amend the law.
The hon. Member for Exeter quoted part of what my right hon. and learned Friend said, but did not complete the quotation. Not only did my right hon. and learned Friend then say:Is is also important that there should be the least possible interference with the freedom of publication and that the Attorney-General should not seek to make the criminal law a vehicle for imposing a censorship on the frank discussion or portrayal of sordid and un-edifying aspects of life simply on the grounds of offence against taste or manners.but he went on to say, in the case of the novel "The Naked and the Dead":Whilst there is much in this most tedious and lengthy book which is foul, lewd and 1535 revolting, looking at it as a whole I do not think that its intent is to corrupt or deprave or that it is likely to lead to any result other than disgust at its contents."—[OFFICIAL REPORT, 23rd May, 1949; Vol. 465, c. 873.]My right hon. and learned Friend repeated the essential part of Mr. Justice Stable's judgment, "looking at the book as a whole," and not merely picking out parts of it. However, events have shown that it is desirable to make more certain of the law, to avoid fluctuations in its interpretation and application.
As I see it, this Bill tries to clear up some of the doubts about intention. I believe that it is one of the conditions of our other law that if a citizen commits an act which is an offence under the law he cannot plead that he had no intention of doing that thing and get away with it; that if certain consequences of the act would reasonably flow from it, then he must be held responsible for those consequences even though he did not intend them. That, as I understand, is the basis of our law, and certainly was one of the bases of the judgment of Mr. Justice Cockburn, in 1868.
The Bill does not relieve the citizen of responsibility for the consequences of his acts, even though he does not intend them. What it does do, however, is to define more closely what those consequences may be to bring them within the scope of an offence under the law. That is why Clause 2 (a) says thatits dominant effect is such as to be reasonably likely to deprave and corrupt persons to or among whom it was intended, to be distributed, circulated, or offered for sale.It does at least clear up some doubt left by Mr. Justice Cockburn's judgment whether the fact that a book accidentally falls into the hands of an adolescent or into the hands of a number of adolescents provides a ground for conviction.
Under the Bill, if a book can reasonably be held to corrupt and deprave those for whom it was intended, then its publication is an offence; but it would not be an offence under the Bill that the book merely fell into the hands of those for whom it was not intended even though depravity and corruption could reasonably be assumed consequently to have taken place among them.
It still leaves the law with all the difficulties of interpretation, I freely admit; but if there is to be any law at 1536 all on this subject I do not see how we can possibly escape some of those difficulties. I think it is better to have the difficulties of interpretation of a Bill which seeks to rid case law of some of the undesirable features now in it, than the original 1857 Act.
I cannot say that I personally am enthusiastic about Clause 2 (b). This is rather too reminiscent of the debates we had on horror comics. I am not sure how far we can rely on the judgment of grown-ups of the effect of certain things on the minds of the young, even though they are doctors, or governors of remand homes, or people otherwise engaged in work among young people.
We were all young once, some of us rather longer ago than others, and I think that there are lessons to be drawn from our own experience when young which are more valuable than our appraising of the experience of others.
If I may make a personal reference, I was born in a working-class home in the closing years of the last century, and I went through the period of aspidistras. prudery and hypocrisy, when the word "immoral" meant only one thing, and when all round there was the stunting of the bodies and minds of young people by industrial conditions, disgraceful housing and living conditions, and when the encouragement to people to escape from the horrors and hardships of ordinary life was freely offered in gin palaces, pubs and music-halls. I lived through that time when young boys could be seen at railway stations, bare footed and in rags, carrying the bags of those who could afford to give them a ha'penny or a penny for doing so.
Those conditions existed alongside the Victorianism of that period, which sought to protect the morals of the young, but did not recognise that the immediate cause was the industrial conditions which stunted their lives and made them unhappy in those days. I can remember when to be seen reading "Ann Veronica" in my early years was to be condemned, and would have been regarded as a reflection on one's parents or on the school teachers of the day, when H. G. Wells was regarded as being something of a dirty old man, and one could not really be seen reading him and still retain any sense of respectability. 1537 I believe that education, the influence of the home and the normal development of the minds of young people are much the safest guides in these matters rather than an endeavour to lay down the law. I do not myself believe, if looking back on my own youth js anything to go by—and I still think it is—that the portrayal of violence, horror and cruelty have the effect that some people think it has on the minds of the young.
§ Mr. Houghton
As my hon. Friend says, we have had two wars since then.
We have had stories of war experiences and of the horrors of war, and really it is so difficult now to get a straight line on this matter. If sometimes we allow young people to see or read things, then we find that their curiosity is satisfied, and they find perhaps that it is not as exciting as they thought, or that they are soon bored with it.
Again, I have met many men who will tell "smutty stories" in the presence of young people, but who will condemn as strongly as anyone the circulation of pornographic books. We are all such hypocrites about these matters. We have not got the thing straight in our own minds. We seem to think that what is said in conversation is not particularly objectionable, but that when it goes into print, then it is. I am against all forms of pornography, indecency and bad taste. I think that there is far too much of it, and far more trash on the bookstalls than reflects credit on our educational system and on the homes of Britain today.
One can be rather distressed and a little frightened on reading such a book as Richard Hoggart's "Uses of Literacy", and see what a rising standard of life is producing in the wider circulation of "glossies", the introduction of a new form of female snobbery called "falsies", and other examples of deplorable taste, but we shall not cure that by law. We shall cure it only by more education, upon which the country will have to spend much more yet to achieve its purpose, not only in this but in many other desirable directions.
I welcome this Bill because I believe that it will achieve greater certainty in 1538 the law and provide greater freedom of publication. There are certain matters which I think may need attention during the Committee stage, and I will refer to one of them. It concerns the seizure of books alleged to be obscene from the shelves of booksellers by the police, and their retention by the police for an unduly long period, while someone makes up his mind whether to prosecute or not.
I heard of a bookseller, whose shelves perhaps contained numerous examples of advanced literature, having his premises raided by the police, hundreds of books taken from his shelves representing hundreds of pounds of capital invested, denuding his shop of much that was there, and leaving him without any redress until a decision had been taken whether to prosecute or not. I think that, if need be, there should be some limitation placed upon the delay which may occur between the seizure and a decision on proceedings, but that and other matters may receive attention during the Committee stage.
I think that the main purpose of the Bill is a desirable one, and one which I certainly support, and I should like to congratulate the noble Lord the Member for Berwick-upon-Tweed (Viscount Lambton) on introducing it. I will conclude on this note. I think it is a pity that Ministers do not take the initiative more in these matters of conventional morality and social questions. It rather looks as if, in these days of marginal political situations, not only the Government but some hon. Members of this House wish to shy away from these difficulties and controversies. That is a bad thing for this House, for Parliament and for the country. We must not allow the marginal political situation to make cowards of us.
We must stand up against opposition and public criticism, however precarious our electoral position may be. If we are to surrender to organised pressure groups, not only in this but in other connections, then this great institution of Parliament will be less worthy of the confidence of the people than it is. I should welcome any sign of courage of this kind, and will do my humble best to support it, and I hope that in due course we may have signs of greater Ministerial courage in this difficult field of legislation.
§ 1.49 p.m.
§ Dr. Donald Johnson (Carlisle)
I rise to support the Bill which has been so ably put forward by my noble Friend the Member for Berwick-upon-Tweed (Viscount Lambton). In what I have to say, I speak as a trading publisher, and, naturally, in that connection, I declare my interest. I will try to concentrate on the practical point of view of a publisher, as such, under the present law, and why I am happy to sponsor this Bill.
The object of the promoters of the Bill, of course, is not to allow licence to any author to write or any publisher to publish anything they like. It is, as they have assured us, to correct and adjust the uncertainties and the capricious operation of the present law. Even the individual bookseller who knows his own local climate of opinion and his own local surroundings inevitably has difficulties in knowing how he stands under the law. There are, of course, many such individual booksellers who do a substantial proportion of the trade today.
One of the governing factors from the publisher's point of view is, however, the change of structure in the publishing and bookselling trade that has taken place since this antiquated law was promulgated almost one hundred years ago. The different structure is the advent of the multiple bookshop and the circulating library. It is probably fair to say that multiple firms, owning anything from three or four shops to 100 or more, represent the larger part of the trade on the selling side. This is even more the case on the library side. As few as three or four main commercial libraries circulate the better class of books. The librarian of the public library buys his own books, but in turn the public libraries are supplied intermediately through a comparatively small number of library suppliers.
Though I digress slightly, I must resist the suggestion that any of these people show monopolistic tendencies or censorship tendencies of their own. As a small and individualist publisher one finds that one gets the greatest fairness and the maximum help from them. Generally speaking, however, there is central buying in the multiple concerns and this trend is likely to continue.
In present circumstances, these people have a very difficult job indeed. They 1540 have to buy not only for London, but, in many cases, for circulation in branches in all parts of the country and in places which have different standards and different tastes in the matter that we are discussing. It is sufficiently obvious that obscenity in Swindon is a different conception from that of obscenity in Shaftesbury Avenue. This is bound to be the case. It is perhaps undesirable that the standards of Shaftesbury Avenue, if one may say so without offence, should be the standards of the country as a whole, but it is equally undesirable that in this matter the standards of Swindon should be the standards of the country as a whole. We need a reasonable and reasonably understood standard in between, and that is the aim of the Bill.
Let us hope that, with clarification, the Bill will bring an element of common sense into our arguments and considerations on the question of obscenity and free them, in particular, of the emotional content that has tended to surround them in recent years. We have heard a good deal about the emotional content on one side, but it is not entirely limited to one side. Those hon. Members, who, like myself, support the Bill, have said a good deal about the prosecutions that took place in 1954. Whilst entirely agreeing with those hon. Members about the Bill, I suggest to them that those prosecutions in 1954 are not perhaps the best arguments in their case. In one or two cases these prosecutions might well have taken place even under the terms of this Bill.
I do not think that I reveal any great publishing trade secret when I say that in the years prior to 1954 it was generally known throughout the trade that sex contents sold books regardless of literary merit. If one was in competitive publishing business, as I was during those years, it was a difficult thing to resist when in competition with other people who appeared to be less resistant to these suggestions.
I have no great sympathy with the conception that that era saw some new revolution in literature, and for that reason I think that part of Clause 2 requires careful consideration. I recollect that during that time I got into considerable trouble when, in my somewhat obscure position as a then member of the library committee for Sutton and Cheam, 1541 I ventured to ventilate the fact that many parents were writing to councillors and others to complain of the type of book that their daughters, in particular, were getting through the library.
I brought a terrific emotional storm on my head by venturing the quite limited suggestion that, whatever one's views were, at least the ratepayers' money should not be spent on that type of publication. Those who were responsible for this failed to see that I was dealing with a concept entirely different from the argument of obscenity as a whole, namely that if people want to regale themselves with this type of book they should at least do so with their own money and not at the expense of the hard-pressed ratepayers. I hope that a Bill of this kind will, in clarifying the law and making it less uncertain, prevent a misunderstanding of that kind, and that it will take emotionalism on both sides out of our consideration in dealing with this very difficult subject.
The objectionable part of the convictions in 1954 under the present law was the complete state of uncertainty into which they subsequently threw the publishing trade. I remember that, in the case of our own publications, as a result of the subsequent uproar throughout the trade, the uncertainty went from one extreme to the other and booksellers were even nervous about representing a book with the word "woman" in the title.
In conclusion, I endorse the words of hon. Members who have commented on the innovation in Clause 2 (b) which extends the definition of "obscene" to cover publications that unduly exploit horror, cruelty or violence. I, for one, have never been able to understand the complete banning of sex when, in the past, horrifying things could be published which would corrupt the minds of young people in the most undesirable way. For instance, anyone who saw a collection of the horror comics which were circulating in this country three or four years ago, before steps were taken to have them suppressed, can have no doubt whatever on this score.
For the general reasons I have stated, and for the particular reason with which I have concluded, I support the Bill and hope that the House will give it a Second Reading.
§ 2.2 p.m.
§ Mr. Emrys Hughes (South Ayrshire)
This is an interesting and enlightened Bill, on which we have had an interesting and enlightening debate, and I wish to associate myself with what has been said in commendation of the Bill, and especially of its spirit, by my hon. Friend the Member for Sowerby (Mr. Houghton).
I want to ask the promoter and supporters of the Bill whether, when it reaches the Committee stage, they would consider extending it to Scotland. I fail to see why the hon. Gentleman the Member for Carlisle (Dr. D. Johnson) will have the benefits of the Bill whereas those in Gretna Green will not. I am sure that Gretna Green is just as interested in pornography, or whatever descriptions are applied to certain aspects of life, as is Carlisle. I fail to see, too, why a certain amount of literature which will be available to the hon. Gentleman when he reaches Carlisle should not also be available to me when the train stops at Dumfries. I know that there are legal complications, and that one of the arguments is that Scotland likes to have legislation of its own, but since rents have been included in an English Rent Bill, I am sure that we can take the question of obscenity in our stride.
The question of what is pornography and what is literature changes from decade to decade. For example, I represent the shades of two authors, two great men of letters, whose works are sometimes considered to be obscene. Robert Burns, for instance, wrote passionate poetry which, at one time, was considered to be pornographic, and he was regarded as a rather doubtful and suspicious character outside Scotland, though I believe that in Scotland he was always regarded as more of a religious figure than a literary one.
It is only recently that some of his letters have been published in biographies, and at last someone dared to publish one of his letters, well known to literary people, as a footnote in an interesting biography written by one of the best biographers of Burns, a lady. Certainly, if that letter were published in full today and Burns were alive, and if this Bill were law, he would come under the category of a £500 fine or four months' imprisonment, which would have been a tragedy for literature.
1543 Although I represent Burns, and he was regarded as something of a liability, that liability faded into insignificance when some old manuscripts of Boswell came to life. Boswell is buried in my constituency, so I have to represent him as well as Burns. For over a hundred years, within a couple of miles of where I live, in an old country mansion. Boswell's diaries of his visits to London and his tour through the European capitals were hidden in the loft and later were exported to Ireland. The descendants of Boswell were horrified at the thought of publishing his diaries in the Victorian age. Subsequently, however, an enterprising American collected the documents from Ireland, and an equally enterprising American publisher paid a certain sum for them, and made an enormous profit by selling them to the English, the Americans and the rest of the world.
Of course, the borderline between pornography and literature is difficult to define. I have no doubt that if Burns had been liable for four months, Boswell would have received the extreme penalty. However, tastes change, and now we recognise that Boswell's description of London in his day—that is, the early eighteenth century—although it was very vulgar from many points of view, and certainly would not have been published in Victorian days, was a vivid and almost photographic description of the city in which this debate is taking place. Boswell's reminiscences are now regarded, not as pornography, but as literature.
It is, therefore, difficult to draw the line between pornography and literature, and, thinking of the interests of the shades of my illustrious constituents, I would not like to think of them appearing, even posthumously, before a jury in the City of London even under this enlightened piece of legislation. So I hope that we shall be able to improve it in Committee.
To illustrate how public opinion has changed, I do not believe that it would have been possible to have this enlightened debate some years ago, because Bernard Shaw's play, "Mrs. Warren's Profession," was banned by the censor. Some hon. Members may remember the interesting preface Shaw wrote, giving 1544 his encounters with the censorship of the Lord Chamberlain of his time. Today, however, we do not think that "Mrs. Warren's Profession" is an obscene play. We look upon it as a serious, interesting and valuable analysis of a social problem which has puzzled society for generations. So I say that in making it easier for people who have the courage to tackle these social problems, this Bill is rendering a considerable service.
I believe that there is much in saying that the British are the most hypocritical nation in the world. That may be an overstatement, but, after all, there is no newspaper in France which corresponds to our News of the World. I do not know any country in the world which has a newspaper whose circulation is almost entirely built up on sex. This shows that the British people are tremendously interested in sex, and it is exploited. When we argue that we are more moral than the French or the Russians, we are only deluding ourselves and indulging in a piece of national hypocrisy.
In fact, if the editor of a Sunday newspaper wishes to please his proprietors, and make big dividends for the shareholders of his company, he has to keep in mind that he must be concerned with sex, murder, sport and Royalty—in that order of priority.
That does not happen in, for instance, the Soviet Union. I remember being in the Soviet Union and seeing a large crowd outside a bookshop in Moscow. I am always interested to discover what queues line up for. So I went into the bookshop. I had an altercation with the people at the front of the queue who thought I was trying to get into the shop before them. I explained that I was there out of curiosity and we made our peace.
The book causing the queue was a Russian translation of the "Decameron," by Boccaccio. I should say that Boccaccio's "Decameron" is literature, but many people would say that it is pornography. Perhaps we are both right. At all events, we have to learn to tolerate a good many things of which we are suspicious in this generation in case it may be considered to be great literature in the next.
Even we in this House are inclined to be mealy-mouthed these days. Recently, 1545 I was speaking in the debate on the Air Estimates, and the hon. Member for the Isle of Wight (Sir Peter Macdonald) was sitting opposite. I asked, rhetorically—which is a bad habit of mine—what was the cost of a bomber, and the hon. Member said "A hell of a lot." In HANSARD next day it was reported as:….a deuce of a lot,"—[OFFICIAL REPORT, 7th March, 1957; Vol. 566, c. 630.]The hon. Member for the Isle of Wight does not worry about these things, and I certainly do not, but it shows that ideas about language change from decade to decade.
Indeed, I am rather anxious to see what will happen to a quotation that I want to give from an admiral of the American Sixth Fleet. The admiral is a very religious gentleman who regularly conducts prayers on a big battleship. During the recent crisis a submarine was reported to be in his area, and this gentleman, who had read prayers in the morning, sent out a signal saying, "Keep the b….down." I apologise for using that word, Mr. Deputy-Speaker, but I am rather anxious to see what will happen to it in HANSARD tomorrow.
§ Mr. Deputy-Speaker(Sir Charles MacAndrew)
According to Erskine May, putting words into the mouth of someone else in a quotation does not put them in order.
§ Mr. Hughes
I was rather venturing into No-man's-land, Mr. Deputy-Speaker. I was exploring new territory. Perhaps it will result in easing the difficulties of the gentlemen who record our proceeding with such assiduity.
I am rather interested in Clause 2 (b), which reads:…whether or not related to any sexual context, it unduly exploits horror, cruelty, or violence, whether pictorially or otherwise…That is a rather wide definition. I wonder whether the noble Lord the Member for Berwick-upon-Tweed (Viscount Lambton) would consider that the publication that I have in my hand would be covered by the definition of horror, cruelty or violence.
I have here a page from the respectable Manchester Guardian. I do not believe that anybody would really accuse the Manchester Guardian of wishing to encourage obscenity, but this is obviously a case of "violence", because it is a half- 1546 page picture of the explosion of a hydrogen bomb. I should like to know whether it is likely that the advertisement here would be prohibited under Clause 2 (b). It certainly makes things difficult. If the editor of the Manchester Guardian were brought before a court and threatened with a sentence of imprisonment for four months on the ground of obscenity and having published something which was violence, what would happen? He would be able to plead that this was an advertisement which came from the War Office. It will be very difficult indeed to carry on this kind of recruiting propaganda if the…—
§ Viscount Lambton
I do not see how a photograph of an explosion could ever be interpreted by any judge as obscene.
§ Mr. Hughes
It is a photograph, and it is a photograph of horror and violence. I believe that the very interjection that the noble Lord has made shows that there is some need to clarify the situation. Otherwise, we shall find the Secretary of State for War disappearing for four months.
§ Mr. Hughes
I am sure that the noble Lord will be glad that he has my support. I hope that in Committee he will seriously consider my point about extending the benefits of the Bill to Scotland. It should not be thought that Scotland is still in the days of John Knox. I can understand the noble Lord not wanting to get into trouble by including Northern Ireland. Northern Ireland had better be left out for geological, theological and ideological reasons. However, if it is not too complicated a matter, I suggest that he should consider extending the benefits of this very enlightened Bill to Scotland.
§ Viscount Lambton
I certainly have no objection to doing that. The only reason Scotland was not originally included was that, living south of the Border, I felt that Scotsmen were passionately fond of making their own laws. If there is a genuine feeling that the Bill should apply to Scotland, I, and, I am sure, the Government, will consider the proposal favourably in Committee.
§ 2.19 p.m.
§ Mr. Peter Kirk (Gravesend)
I think that all hon. Members who have spoken in the debate today have been generally agreed on what we want to do, even my hon. Friend the Member for Exeter (Mr. Dudley Williams), the only hon. Member who has so far spoken against the Bill.
We all, however, slightly disagree about the best way of achieving what we want. The difficulty is partly one of definition. What is "obscenity"? The hon. Member for South Ayrshire (Mr. Emrys Hughes) seems to think that two of his constituents—who, though dead, apparently vote for him, as they do in Ireland—would now be regarded as obscene under the Bill though they were not regarded as obscene at the time they wrote, and that the Manchester Guardian might also be considered to be obscene.
The hon. Member also suggested that this was purely a British problem and that we tended to be rather more hypocritical than other nations. I do not think that that is so. A French court last month, after a long period, banned the works of De Sade. Also, quite recently, the American Post Office has refused to send through the post a copy of "Lysistrata" on the ground that it is obscene. We are not the only country which runs up against this difficulty, and which finds difficulty in distinguishing between obscenity and literature.
There seems to have been a feeling that provided a book is old it is all right; if Boccaccio had written the "Decameron" today it might be considered obscene but as it is mediaeval literature it is O.K. A great deal of gentle fun has been directed at the magistrates of Swindon who ordered that Boccaccio should be burnt, although the decision was reversed. I have a great deal of sympathy with the magistrates of Swindon, because they had to administer an impossible law. They were not simply given a copy of Boccaccio and asked whether it was obscene or not; they were given something like 150 titles of books all from one shop and not all of the same literary merit as Boccaccio. Some of those titles were "Flirt" "Wink" and "Girl". They were asked to decide whether those were obscene.
In the context of the case it was quite clear that the owner of the shop was 1548 selling Boccaccio because he thought that it was obscene, whether it was obscene or not, just as he was selling all those others because he thought they were obscene. I sympathise with the magistrates, faced with that very difficult decision, in saying, "Take the whole lot away and burn them." They were dealing with a law which is very difficult of definition. We rely upon a judgment of 1868. About ten years before that, "Barchester Towers" was first published. It ran into difficulties with the Press because one of the scenes took place in a bedroom and depicted one spouse, but not two spouses, in bed. I do not think that many people today would apply the same judgment to it.
We have reached a situation where, in 1954, prosecutions were brought against five books and nearly all of them the wrong books. My objection to the law is that it is quite possible, if we have the money and know where to go, to buy as much pornographic literature in London as we want, and I suppose it is so in the major provincial cities. I remember that when I was in Fleet Street, four or five years ago, there was a case involving a shop in Soho selling obscene literature which was openly displayed in the shop. The customer could walk in, buy a book, pay the money and go out again. We sent a reporter there and he managed to do it with no difficulty whatever.
To see what had happened to that shop I went there again yesterday and discovered that it is still possible to pick up these books. Most of them are in the French language. I do not think that that makes it less an offence. One can look at them, buy them if one has the money—the prices are very high—and take them away. The books are real, genuine filth and not books which might conceivably be judged to be literature. I do not think that anybody who looked at the books would say that they should be allowed to be circulated freely around the country.
The great difficulty is to catch those books without catching everything else. I am puzzled. The Bill is an improvement on the present law; it will at least enable people to know what the law is. The two judgments of 1954 showed that people do not know what the law is now 1549 I am worried about the definition of obscenity in the Bill, which is:… its dominant effect is such as to be reasonably likely to deprave and corrupt persons to or among whom it was intended, to be distributed, circulated, or offered for sale.Is that word "intended" a defence? I should like the Government or the promoters of the Bill to answer this question. If I wrote a filthy book, I could say that I intended it to be circulated among people who were already corrupted and, therefore, could not possibly be corrupted. Would that be a defence under this Bill?
The hon. Member for Barking (Mr. Hastings) suggested that a book might be intended to be circulated among students of psychology or psychiatry. The author could say, "It is no business of mine if the book found its way into the public shops. I did not intend it to go there." The publishers might say, "The bookseller got hold of it somewhere else." I am therefore worried about the word "intended." Does my noble Friend think that it is sufficiently defined? Everyone wants to catch the really bad book, but not to cause the type of prosecution which occurred in 1954 and which most of us regretted.
The promoters of the Bill obviously had in mind the Boccaccio type of book in the proviso at the end of Clause 2, which attracted the critical attention of the hon. Member for Coventry, North (Mr. Edelman). The proviso says that… in deciding whether such matter is or is not obscene the court may receive expert evidence as to the literary or artistic merit, or the medical, legal, political, religious, or scientific character or importance of the said matter.The phrase "literary or artistic merit" also worries me. The hon. Member for Coventry, North pointed out that a homosexual literary critic could give evidence as to the literary merit of a homosexual book. The prosecution would be entitled to hear expert evidence from a professor of English literature at Oxford University that the book was entirely worthless as literature. The magistrates would then have the frightful job of choosing between two professors of English literature, one from Oxford and one from Cambridge, giving testimony on different sides.
§ Mr. Kirk
That is quite possible. I say that without reflecting on the character of anybody who has ever held those positions.
The Bill makes an essential change in the law, and much more in Clause 2 than in Clause 1. It raises the difficulty of definition. What separates, what is the dividing line, between a book which is undoubtedly pornographic, and one that is not pornographic and is of high literary merit? It is possible to combine both pornography and extremely high literary merit. Is it fair on the wretched magistrates that they should have to hear expert evidence to prove that a book is pornographic and of high literary merit? Can they authorise a restricted sale or circulation? All these points have puzzled judges and juries and others, and they will continue to baffle them in the future. Nevertheless, the Bill is a great improvement, which I welcome.
The hon. Member for St. Pancras, North (Mr. K. Robinson) referred to Clause 8, which is entitled "Initiation of proceedings," and under which proceedings can be initiated only by or with the consent of the Attorney-General. That is an excellent alteration and I hope it will lead to a great deal less prosecution.
There are one or two points in the Bill which will have to be gone into in Committee. I hope that it will be possible, as a result of the Bill, for booksellers and publishers to know in advance what the law is and what the chances are of their being subjected to prosecution, which may or may not succeed. As the result, life will be made a good deal easier for them. There will be a much freer circulation of literature than in the past, but there will still be, and, I hope, there will always be, an unrelenting attack upon the kind of filth which is still circulated, and in places not many miles from this House.
§ 2.28 p.m.
§ Mr. Anthony Greenwood (Rossendale)
At the risk of repetition, I would add my compliments to the all-party group which is responsible for the Measure that we are discussing. I would congratulate not only the noble Viscount the Member for Berwick-upon-Tweed (Viscount Lambton). 1551 but my hon. Friend the Member for St. Pancras, North (Mr. K. Robinson), who seconded the Motion for Second Reading, on their wholly admirable speeches.
I congratulate, also, the hon. Member for Stafford and Stone (Mr. H. Fraser) who introduced a similar Bill on a previous occasion, and especially my hon. Friend the Member for Stechford (Mr. Roy Jenkins) who, throughout, has played such a prominent part in the campaign which, I hope, we shall take to a triumphant conclusion today.
The fact that this is a subject which unites hon. Members of different political outlook and different religious creeds gives it an added importance. I am sure that we all feel grateful for what they have all done. No one, I think, can say that this subject is a vote winner. Their advocacy of liberalisation of the law is, therefore, the more to be admired. My hon. Friend the Member for Sowerby (Mr. Houghton) had something to say about most of the hon. Members showing courage on somewhat contentious issues of this kind. The noble Lord the Member for Berwick-upon-Tweed spoke of the way, as he put it, in which decent publishers are curtailing respectable literature while others are exploiting pornography.
It reminded me of a Ministry of Information Press censor who, during the war, was reprimanded for having let through a gross bit of security. When he was reprimanded his defence was, "Oh, you should just see some of the things I have stopped". We really are getting into that sort of situation. The hon. Gentleman the Member for Carlisle (Dr. Johnson) spoke of the fair treatment which booksellers and circulating libraries can extend, but I think that all of us must have been a little shocked recently at the treatment of the book produced by Mr. Randolph Churchill.
In two of the weekly papers today we see reference to the action, first, of a firm of booksellers and, secondly, of a circulating library. In today's Spectator we find a statement that Mr. Churchill has now been informed by W. H. Smith and Sons that on legal advice they are not handling his book. In the New Statesman, dated tomorrow, we find a reference to The Times Library, in Wigmore Street, which states that it was 1552 not able to lend the book and, in a letter, wrote:We must confirm with regret that the book has not been taken into the library as it was published in a type of binding unsuitable for circulation.That is getting us into a serious situation. It is the more insidious, I think, because it is done under the cover of the kind of excuse which The Times Library has advanced. That kind of insidious censorship is, I think, much more dangerous than the one which is imposed by law. I very much hope—and this is one of the factors in my approach to the Bill—that we are not getting back to the days when the circulating libraries refuse to handle books of which they themselves disapprove.
If the figures which the hon. Member for Carlisle gave are right—and I have no reason to believe that they are wrong—it would seem that it is perfectly easy nowadays for three or four people virtually to say that a book must not get into the hands of the public. If that is the case, we are getting back to the days when Mr. Mudie's circulating library banned books like "Tess of the d'Urbervilles" and "Esther Waters ". I am afraid that that danger will exist so long as the law remains in the present state of uncertainty, because one cannot altogether blame publishers, booksellers, or proprietors of libraries, for hesitating to accept responsibility for a book which might, in fact, bring on their heads severe legal penalties.
If we are in danger of the same kind of attack being launched as in the days of Sir William Joynson-Hicks, and, as it was in 1954, being repeated, it will have the effect on those people of making them impose an unofficial censorship to which the noble Lord was referring. It is not only a matter which is important, as my right hon. Friend the Member for Dundee, West (Mr. Strachey) said, to publishers, authors and booksellers, but it is of vital importance to all of us who want to protect public morality and, at the same time, to defend freedom of expression.
It is, of course, a difficult balance that we have to try to strike. I think that too great rigidity would be a serious mistake, because we have to allow for changing attitudes on moral issues. If we are in doubt about that, we have only 1553 to search the shelves of the House of Commons Library for which I suppose that you, Sir, are in the last resort responsible. I ventured yesterday to make a spot check in the Library and I took seven books which, at one time or another, had been banned on grounds of obscenity either here or in the United States. I found that six of those seven books are available on the shelves' of the Library of the House of Commons.
Havelock Ellis's study in "The Psychology of Sex" was originally banned even by the Library of the British Museum. George Moore's "Esther Waters" was banned by circulating libraries and his "A Storyteller's Holiday" was banned by the United States Customs Court as obscene in 1932, but approved by the Treasury Department as a classic in 1934. Leo Tolstoi's "The Kreutzer Sonata" was banned by the United States Post Office Department, in 1890, and Theodore Roosevelt referred to Tolstoi as a sexual and moral pervert. I am happy to say that "The Kreutzer Sonata" is available in the Library of the House. Ibsen's "Ghosts" was banned by the Lord Chamberlain from 1892 to 1915 and in 1935 was banned in the United States and described as a "closet drama".
I think it would be true to say that almost invariably censors, in the long run, make fools of themselves. The Brooklyn Public Library, for example, refused to house "Tom Sawyer" and "Huckleberry Finn" because, they said, they provided a bad example to young people. In 1933, the United States Customs, I think, really excelled itself when it seized a copy of Michaelangelo's fresco of "The Last Judgment", in the Sistine Chapel, on the ground that it was obscene.
I have no doubt that, finally, ridicule is probably the best weapon to use against censorship, but I would rather not take chances, and I feel that the law in its present state is far too uncertain and incapable of conflicting interpretations. There must be something very wrong with the law which can look to the judgment of Mr. Justice Stable, on the one hand, and the Recorder of London, Sir Gerald Dodson, on the other. There seems to be general agreement that the law needs clarification and I welcome the Bill purely personally although I think that in some respects 1554 it is slightly less radical than the Bill which Campbell introduced in 1857. It has been the Hicklin judgment which has, to a large extent, averted the intentions of the Campbell Act of 1857.
The Bill before us today has very great merits indeed. It is good in that it provides a new test of obscenity particularly so far as intention is concerned. I join with my hon. Friend the Member for Gravesend (Mr. Kirk) in welcoming the Clause which relates to the Attorney-General, because I think that it will make for uniformity in the handling of this problem and avoid some of the rather erratic decisions taken in the past. Unlike some hon. Gentlemen who have spoken, I welcome the fact that expert evidence will now be available in cases of this kind.
I should like to remind the House of what happened in the case of the "Well of Loneliness," when Sir Norman Birkett told Sir Chartres Byron that he proposed to call 39 other witnesses, in addition to Mr. Desmond MacCarthy, to prove the value of the book. He said that they would include booksellers, ministers of religion, social workers, magistrates, biologists, including Professor Julian Huxley, educationists, including the Registrar of Durham University, medical men and representatives of the London libraries. Sir Chartres Byron with supreme arrogance replied, "I reject them all."
I have no doubt that there are defects in the Bill, as hon. Members have pointed out, especially the right hon. and learned Member for Chertsey (Sir L. Heald). I have grave doubts about the practicability of Clause 5. But we all appreciate that it is extremely difficult for private Members to bring in perfect Bills of this kind, and I hope that the Government will bless the purpose of the Bill and offer to help it on its way through subsequent stages. I hope that we shall get an assurance of that kind from the Government; indeed, I think that we shall.
Perhaps I might now tender an apology to the Home Office for a reference I made about it in a speech I made over a year ago, when I complained of its inactivity and said that the snores of the Home Office reverberated round Whitehall and were disturbing the pigeons in Trafalgar Square. We are 1555 glad to think that those criticisms, however well justified at that time, are to be disproved by future events. We have recently had reason to think that that is the case.
I conclude by reading an extract from the leading article in today's News Chronicle, which says:Mr. Butler has already shown, through his approach to prisons, that the Home Office is being brought into contact with reality. Parliament should follow this example. The last attempt to revise the 1857 Act, by a Private Member's Bill, was talked out. Today, the House has a second chance to translate Victorian good intentions into contemporary and effective common sense.I should like to express my agreement with that point of view, and say that I hope that we shall seize the opportunity which the noble Viscount has presented.
§ 2.42 p.m.
§ The Joint Under-Secretary of State for the Home Department (Mr. J. E. S. Simon)
I should like to start by joining in the congratulations which have been universally offered to my noble Friend the Member for Berwick-upon-Tweed (Viscount Lambton) upon his success in the Ballot, and upon the admirable speech with which he introduced the Bill. I am sure that all those who heard it would salute it as a notable Parliamentary performance. This has been a most useful debate, upon an important subject. The Bill involves the interplay of the two great constitutional principles with which the House is frequently and closely concerned, and which certainly animate most of the thinking and action of the Department which I represent.
These principles are: first, the liberty of the subject; and, secondly, the maintenance of public order and decency. In truth, those are merely different aspects of the one principle, for the purpose of maintaining public order is, ultimately, to enable individuals to enjoy personal freedom to live their lives without unreasonable violence, interference or offence from others. The aspect of the liberty of the individual with which the Bill is concerned is freedom of expression.
I have dealt with the constitutional abstractions, but we have been repeatedly reminded today that the principle of freedom of expression has a close relationship to the production of works which may, among much ephemeral stuff, 1556 prove to be among the imperishable glories of our civilisation. It is true that great works can be produced in a very narrow and rigid literary or iconographic tradition, and drawing upon a very limited field of experience. Hon. Members will call to mind the ancient Egyptian sculptures, the painting and mosaics of the Middle Ages, or Jane Austen's novels. On the other hand, there are artists whose genius is not fulfilled unless they break through existing rules and draw on virtually the whole of human experience as their material. I suppose that Shakespeare is the supreme example of that.
None of us would desire unduly to limit artistic expression of that sort. Nevertheless, as I ventured to point out during the debate on the Second Reading of the earlier and less satisfactory Bill introduced by my hon. Friend the Member for Stafford and Stone (Mr. H. Fraser), we all recognise the need for some necessary limitations upon the right to freedom of expression. For example, it is limited, with general approbation, by the law of defamation. I say "with general approbation", because I heard what my hon. Friend the Member for East Bournemouth and Christchurch (Mr. N. Nicolson) said about it. But I think that it is generally accepted that we should not permit freedom of expression to be so used, or abused, as to cause wrongful injury to the reputation of other individuals or ascertainable classes.
Similarly, by the law of sedition, we do not permit freedom of expression to be used in such a way as to subvert that public order which itself is the prerequisite of liberty. We do not allow liberty to be used to destroy liberty, in other words. So, again, with the law of obscenity. This debate has shown that it is universally accepted that freedom of expression should not be so abused as to be not an instrument of enlightenment and of spiritual enrichment but one of corruption of the human mind and soul. One must balance the right to freedom of expression with the right of every individual to go his way without unreasonable offence being caused to him.
With very great respect to the hon. Member for Sowerby (Mr. Houghton), who made a most interesting and moving speech, it is the law which must draw the line in these matters. We cannot rely 1557 upon educational influence in any of the spheres with which I have been dealing. Perhaps I can best pose the issue by quoting from the summing-up to the jury by Mr. Justice Stable in the case that has been referred to so frequently in the debate. He said:The decision that you will give, is a matter of the utmost consequence in general. … It will decide where the line is drawn between liberty and that freedom to read and think as the spirit moves us, on the one hand, and, on the other, a licence that is an affront to the society of which each of us is a member.That, indeed, is the duty which lies upon us today.
It is not surprising, therefore, that the debate has shown a general consensus of opinion, as much on the part of those who support the Bill as those who oppose it, that the Bill must be sufficiently armed to deal with mere pornography—I use the words "mere" pornography, rather than the "pure pornography" mentioned by the hon. Member for St. Pancras, North (Mr. K. Robinson)—just as our public health law is properly armed to deal with the discharge of untreated sewage in public, and for the same reason, except that in one case we are concerned with physical health and, in the other, with moral and mental health. Nor do I think that we should underestimate the evil with which the law is designed to deal.
There is a continual and highly lucrative traffic in pornography. I do not imagine that many hon. Members have had occasion, or even opportunity, to read or look at such works. During the last week, I have felt it my duty to glance at some. They are, in many, cases, smuggled into the country. Some of them come in in packages made up to look like bundles of newspapers, the centres of which are cut out to secrete these quite disgusting works. Some come in with false book covers. One I saw had a cover of a perfectly innocuous "Western", but the title on the title page was quite different and was certainly designed to inflame a prurient curiosity—and the contents fully satisfied any such curiosity. There were many others of a similar nature. None that I saw had the smallest literary value but, paperbacks as they were, they sell for anything up to £7 apiece.
I do not suppose that anyone would deny that such works are inherently liable to cause mischief. I know from those 1558 whose duty it has been to read them for the purpose of administering the law that even they have felt a sense of unease which has subsisted for some time afterwards. Speaking for myself, I have spent much of my professional life in the jungle warfare of the matrimonial law. One develops there a reasonably clinical approach to these sorts of problems, but I confess that I was disturbed by the things I have been seeing recently.
Again, one has only to read the records of crimes of sexual violence and perversion to see the part that this sort of matter can play in the engendering of crime—to say nothing of the unhappy, and frequently disgusting, forms of sexual deviation with which these books frequently deal and, indeed, to which they conduce.
That is the problem with which the law has to deal, and I thought that it might be of help if I said a word or two about the law's instruments and their incidence. The first is the common law. The publication of any obscene matter is a misdemeanour at common law. Generally speaking, proceedings are brought on behalf of the Director of Public Prosecutions—which does ensure a considerable uniformity in the administration—but there is, in fact, nothing to prevent a private prosecution. The crime is triable on indictment by a jury at assizes or quarter sessions, but sometimes, where suitable—and only with the consent of the accused—it can be tried summarily, in which case there can be an appeal.
Last year, 42 people were found guilty of publishing obscene libels in England and Wales. I think that it would be of interest to the noble Lord, who was asked a question about it, if I said that most of those were pictorial representations. Not one, as I think has been pointed out, was the sort of work with which the Society of Authors is concerned, nor was there any such prosecution in the previous year.
In 1954, of course, there were the five prosecutions which have been referred to. They were of value, I think, in establishing the sort of line which could be drawn—and, of course, the Director of Public Prosecutions has to administer the law as he finds it. He is in duty bound to submit borderline cases, in certain circumstances, to the jury, and those cases were of value in showing the sort 1559 of cases which would be held to fall on one side of the line or the other.
Those found guilty last year were dealt with either by fines, which amounted in all to about £1,700, or by imprisonment which, in that year, ranged from two months to one year. But in 1955 there was a sentence of three years, and that may be of significance to the House in considering the penalty position.
That is the first instrument of the law. The second way in which the law deals with objectionable matter of this sort is by summary proceedings in rem under the Obscene Publications Act, 1857, for the seizure and destruction of the obscene works. This is not in the nature of criminal proceedings, and no person can be penalised other than by losing his books or pictures or models in consequence of a destruction order. The procedure was designed as a preventive measure for rapid action to stop the dissemination of objectionable material.
§ Brigadier Sir Harry Mackeson (Folkestone and Hythe)
I entirely and absolutely agree with my hon. and learned Friend, but does not his statement of these works selling at £7 each in comparison with the total fines for a year not only support this Bill but make it more important that the Home Office should have greater powers? If they can make £7 on one book, total fines of £1,700 in a year are just childish.
§ Mr. Simon
I am grateful to my hon. and gallant Friend. I gave the figures of the penalties as I thought that it would be of assistance to the House to know, on the one hand, the profits to be made, and, on the other, the penalties that are imposed. I have no reason to think that they are excessive under the existing law——
§ Sir H. Mackeson
With respect, I agree with my hon. and learned Friend's very lucid explanation which is given in support of the Bill, but should not there be far more serious penalties imposed on the publishers of these works?
§ Mr. Simon
With respect, my hon. and gallant Friend is not quite right. Under the existing law the penalties are indeterminate—there is no limit—and I must advise the House that, in my view, the penalties under this Bill—and this. 1560 of course, is a Committee matter—are quite inadequate in view of the extent of the traffic and the profits to be made.
I was dealing with the purpose of the procedure in rem. I do not know whether hon. Members either heard, or subsequently read in The Listener, two remarkable broadcasts on this subject by Mr. Odgers, the Lecturer in Criminal Science at Cambridge. They were in the Third Programme, and perhaps it might be of value if I quoted him. Mr. Odgers said:The purpose of the legislation "—that is, the 1857 Act—is to give a power to destroy obscene matter before it can do harm, a power to be exercised locally and speedily, a power more akin to the removal of refuse from the streets than to the ordinary criminal procedure …It would be an error to think of destruction orders as being a normal method of dealing with books published by established and well-know houses.I do not think that I need go into the details of how that procedure works, except to say that there is an appeal to quarter sessions. It was on an appeal that the "Decameron" was reprieved—I think that it is right to say that, in vindication of the law which, formerly, I served. Last year, under this procedure, there were 38 destruction orders involving, in all, about 22,500 postcards—a far, far higher figure than it had ever been before; over 3,000 photographs; 1,044 books—I think all of the paper-backed variety to which I have referred—966 magazines, and 42 spools of film.
As a necessary corollary to the common law and the Statute, the Post Office Act, 1953, makes it an offence to send an indecent or obscene work through the post, and the Customs Consolidation Act, 1876, prohibits the importation of indecent or obscene works. The Customs and Excise Act, 1952, lays down a common procedure for the seizure and forfeiture of all articles which are prohibited imports—not only obscene works.
Both the Post Office Act and the Customs Act apply throughout the United Kingdom, whereas the Obscene Publications Act applies only to England. I think I am right in saying that the common law applies to Scotland equally, and is interpreted in much the same way as is the English common law. All these provisions, so far as England is concerned. 1561 form a complete code and are, in a large measure, mutually dependent.
That is the machinery that the law has to deal with this evil, but what is vital to know is what is the test of obscenity which the law applies. As I ventured to point out, what the law seeks to do here is to place a necessary limitation on the right to freedom of expression in the interests of public order and public decency. But if such a limitation is to be accepted—and I do not think that any hon. Member, not even the hon. Member for Sowerby, has suggested that there should be no such limitation—it is necessary, first, that no greater inroad should be made on freedom of expression than is necessary for the purpose of preventing corruption, and, secondly, and perhaps equally important, that there should be certainty as to where the line is drawn. I think that the noble Lord and other hon. Members who spoke in support of this Bill were on good ground when they complained that it is precisely in these respects that the law as it stands today is to be criticised.
The test of obscenity was quoted by my noble Friend. It iswhether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.The first thing to be said about it is that, although this has been accepted as a proper test to be put to the jury, the glosses put upon it have varied very greatly.
Hon. Members have drawn attention to the discrepancies in the summing-up of Mr. Justice Stable, on the one hand, in the Seeker & Warburg case and, on the other hand, of the learned Recorder of the City of London, shortly afterwards. It seems to me that the promoters of this Bill can justly claim that this is a sphere where it is important that authors and publishers should have reasonable certainty as to what the law says.
The House will notice another curious feature about the definition that I have quoted. The normal legal test is the effect of any given transaction on a reasonable man. That is not necessarily the test here. It is true that Mr. Justice Stable, in the case that I mentioned, adopted the standard of the average decent, well-meaning man or woman of the day, which is the same thing. The 1562 same standard was adopted by a learned judge in America in the case which has been referred to, which dealt with James Joyce's book "Ulysses". But that is not the standard which is applied in all cases and it is possible to take the wordscorrupt those whose minds are open to such immoral influencesas applying a very much lower standard than the reasonable man. It might include, for example, the high-grade feeble-minded, or the latent pervert. I think that some judges have charged the jury with what would be the effect on the budding schoolgirl or schoolboy.
Those, it seems to me, are the principal defects of the present law, the main one being this uncertainty. There are others, to which I think I should refer. The first is that there is no opportunity for an author or a publisher to intervene to show cause against a condemnation of a work for which he is responsible as obscene; and, secondly, a book retailer may commit an offence without knowledge or negligence on his part since he cannot possibly read all the books he has to sell. Therefore, the House may well come to the conclusion, having heard the admirable speeches which have been made in support of this Bill, that the present law is not satisfactory.
I now turn to the Bill itself, and I know that my noble Friend will not take it amiss if I make criticism of it because, as I have said, and I am bound to say, I think that it is a very great improvement on the earlier Bill which I, as a private Member, sponsored. But I am advised that, as it stands, the Bill would make it virtually impossible ever to deal with purely pornographic books, literature and artistic material such as the House has clearly shown it intends should be dealt with.
§ Mr. Simon
The hon. Gentleman's ears are far too acute. I see that I caught him on the raw.
To satisfy a jury beyond reasonable doubt that the dominant effect of a publication is to deprave and corrupt persons among whom it is intended to be circulated, is really an impossible task. How does one prove the intention of either author or publisher as to the section 1563 of the community in which it is to be circulated? Apart from that, which itself is really fundamental to the Bill, the words "to his knowledge" would make it extraordinarily difficult—in my view, impossible—ever to secure a conviction in a merely—I emphasise that word—a merely pornographic case.
The hon. Gentleman the Member for Coventry, North (Mr. Edelman) pointed out that it is possible for an author to say, "I do not know whether that is obscene. I certainly do not have the same test of obscenity as you do ". There are those, fortunately a minority, who say, "Evil, be thou my good". Their test of obscenity would undoubtedly be very different from that of the ordinary man and woman.
It would be possible to take those words out and substitute a type of defence which one finds in the Children and Young Persons (Harmful Publications) Act, wherein it is a defence to show that the publisher or retailer, or whoever it may be, had no reasonable means of knowing that the work was obscene. Such a defence might well commend itself to the House.
The proviso to Clause 1 of the Bill does not provide any machinery. I need not go into it in any more detail. The hon. and learned Gentleman the Member for Northampton (Mr. Paget), in an intervention, referred to it as a highly novel procedure and one which it would be extraordinarily difficult to fit into our system. On the other hand, it is attractive, hon. Members may think, to allow anybody who may be adversely affected, because he is in some way ultimately responsible for a work, to be able to justify it. But, in view of the suggestion that I am going to throw out later, I do not think that it is necessary for me to go into what I regard as the very grave procedural difficulties in the way of that course.
In Clause 2, the use of the words "dominant effect" might make it very difficult to secure a conviction. On the other hand, I think that what the promoters of the Bill have in mind, which may well appeal to the House, is that the effect of the work as a whole should be the test. Very often, necessarily, in the press of judicial business, particularly 1564 when the matter is dealt with summarily under the Obscene Publications Act, one or two isolated passages may be read out or marked which may, in certain cases, be out of their context or, at any rate, may be corrected by their context.
There is another defect in the present law in that connection, namely, that there is nothing to tell the publisher, as a result of a summary procedure order, what is the objectionable passage, so that he can put it right in subsequent editions; there is no means of making it known to him.
I myself see no difficulty in enacting that the test should be the work as a whole. For example, I suppose that it might be said that the scene wherein a character's eyes are gouged out in full view of the audience is a highly obscene and disgusting one; yet no one would say that the total effect of "King Lear" is obscene. I do not think that I need say more about Clause 2 (b), because conflicting views have been very clearly put forward about it in this debate.
Again, on the question of expert evidence under the proviso of Clause 2, differing views have been put forward. I confess that I see no answer to the logic of the hon. Member for Coventry, North when he says that the literary merit of a work has really no bearing at all on its obscenity and that a work is well written may even make it even more corrupting, more damaging. But the fact that a work is condemned in one generation and applauded in the next does not really conduce to the authority of the law, and, on examination, it might be thought that it would be of assistance to the court to receive expert evidence; but that is a matter on which it is possible to hold conflicting views.
§ Mr. Strachey
Is not it the experience of successive generations that literary merit does act as a kind of antiseptic to statements which are very frank and very broad, and that if people had not had literary merit the statements would have been obscene if they had been put in the form in which they appear in the paper backs to which the hon. and learned Gentleman referred? The very fact that they have been written by a master has, in the experience of the world, meant that their effect has not been obscene.
§ Mr. Edelman
Is not my right hon. Friend committing the critical heresy of trying to separate form from content?
§ Mr. Simon
I think that there is a good deal in what the right hon. Gentleman says. It might be said that it remains obscene, that the mere pornography disappears and that it is simply the work of enduring merit which subsists, notwithstanding that it is pornographic. It is the fly in the amber.
I have dealt already with the subject of penalties. The Customs and Excise Clause has been referred to by the hon. Member for Sowerby. It does not impose any prohibition on the importation of obscene matter. Of course, we are bound by an international convention to do what we can to prohibit traffic in obscenity. The House rejected a similar proposal on the Children and Young Persons (Harmful Publications) Act; and there is the third objection to that Clause that it imposes a differential code in different parts of the country and, from the point of view of the working of the Customs, might provide quite extraordinary difficulties.
I do not think that I need go into detail on Clause 5. The hon. Member for Rossendale (Mr. Anthony Greenwood) indicated that there were objections to that. I think that I should draw attention to Clause 8 which has, on the whole, been acclaimed. It requires the Attorney-General to examine every single obscene piece of matter which is the subject of any proceedings, not only those on indictment, not only those at common law, but also those at present the subject of destruction orders. I must say that that is putting a quite impossible task on him.
§ Mr. Simon
The Attorney-General cannot really consent to prosecution in a matter of this sort without being personally responsible for examining it. It is really putting an impossible task upon him.
Earlier, I gave the figures of the number of destruction orders. Certainly, that Clause would have to be very closely examined with that objection in view. Also, understandably, the existing proviso 1566 to Clause 2 imposes on him the further duty of acting as a literary critic in deciding whether a prosecution should be launched. As I said, I know my noble Friend will not take these criticisms as other than intended constructively.
I sum up the view of the Government. This is a Private Member's Bill, and it is for hon. Members, having heard the arguments on either side, including, I hope, the criticisms which I have ventured to put forward, to decide whether the Bill should have a Second Reading. If the Bill does go further the Government will give such help as they can towards making it workable. But I am bound, first, to issue a warning. I shall follow it up with what, I hope, may be regarded as a constructive suggestion.
My warning is this. I am advised that the Bill could not easily be made workable, could not easily be amended in Standing Committee in such a way as the House has plainly shown it itself desires, that is to say, so as to protect serious works of genuine merit without weakening the law against pornography. Hon. Members with more experience than I have of legislation will know that it is possible to amend a Bill in such a way that suddenly one finds that it has fallen to pieces; and in place of the legislative feast of delight which my noble Friend desires in his munificence to lay before us we might find before us a statutory dog's dinner. That is the warning I feel bound to give, and I know that hon. Members who know my interest in this matter will take it as not lightly given.
Let me now make a suggestion for the consideration of my noble Friend. It is entirely a matter for him, of course. It is that if the House gives the Bill a Second Reading—and that, as I say, is entirely a matter for the House—the Bill be sent to a Select Committee instead of a Standing Committee. It is true that there is no recent example of a Private Member's Bill going to a Select Committee, but I am advised that there is nothing to prevent it from being sent to a Select Committee.
There are certain things about that which may appeal to the promoter and supporters of the Bill. They will, no doubt, bear in mind, in the first place, the present state of business upstairs and what chance, in any event, there is of 1567 getting a Bill this Session out of a Standing Committee. A Select Committee has a much more flexible control of the drafting of a Bill. It takes cognisance, of course, of the views expressed in the House, but it can also take evidence from outside, and the House may well think that in certain matters, like the proviso to Clause I and the machinery difficulties the hon. and learned Member opposite referred to and the Clause concerning the Customs and Excise, that would be a very real advantage.
There are recent examples of Public Bills—the Army Bill, the Naval Discipline Bill and the House of Commons Disqualification Bill—in considering which the Select Committee was very much assisted by an inter-Departmental committee of officials which worked alongside it. The right hon. Gentleman the Member for Dundee, West (Mr. Strachey), I think, was on that Committee; at any rate, he will have followed its proceedings. It was found to be of very great value.
It obviously would not be in all cases a suitable machinery, and I suggest that there are two prerequisites in general. First, there must be a general consensus of opinion that modifications of the law are desirable but that, nevertheless, certain matters must be safeguarded. For example, over the Army Bill there was the general consensus that the existing Army Act was thoroughly unsatisfactory, but, nevertheless, it must not be amended in such a way as to be utterly subversive of discipline. That seemed to me to be a very close analogy with the problem we have here.
Secondly, it is more desirable in a case where the difference of opinion does not run down the centre of the House but across the House. I think that that is what we have seen today. Such misgivings as have been expressed have been expressed on each side, and the Bill has had support on each side. Certainly, my right hon. and learned Friend the Member for Kensington, South (Sir P. Spens) has shown in recent years how very valuable the constitutional instrument of the Select Committee can be in drafting a difficult Bill.
I say that it is entirely for my noble Friend to decide, and he may think that this course has a good deal to recom- 1568 mend it. If the Bill goes to a Select Committee, just as much as if it goes to a Standing Committee. Government assistance will be available, and, although, in point of fact, it is not necessary in a Select Committee, because it can send for such documents and persons as it chooses, I do make that offer.
May I end, as I began, with congratulations to my noble Friend? It is for the House to decide whether to give the Bill a Second Reading or not, and the House will weigh in that decision the difficulty of satisfactorily amending the Bill in Standing Committee. No doubt it would help the House in deciding whether to give the Bill a Second Reading or not if it knew that the suggestion I have thrown out is one which appeals to the promoter and supporters of the Bill. If the Bill does receive a Second Reading, whatever course is taken, the Government will assist in trying to make it workable, so that offensive and corrupting matter may be effectively suppressed without trenching further than is necessary on the pursuit of their vocations by serious artists.
§ 3.21 p.m.
§ Mr. Roy Jenkins (Birmingham, Stechford)
I think that those of us who have been interested in promoting the Bill, or a similar Bill some time ago, are very grateful to the Joint Under-Secretary for some of the things he has said. Certainly, his speech is at the very least a great improvement on what his predecessor said on a similar Bill eighteen months ago, because, although somewhat longer, it was made at a much more appropriate time.
I think that we are also very glad that he has given us clearly on behalf of the Government a statement that the law as it stands at present is in many respects highly unsatisfactory. With some of the other things which the hon. and learned Gentleman said I will deal in further comments as we go along. I think we should also say straight away that we are very glad to hear that the Government at least have no intention of opposing a Second Reading, but I very much hope that if the House decides, as I trust it will, in view of what the hon. and learned Gentleman said, to give the Bill a Second Reading, the Government will not regard the Second Reading as being merely a demonstration. 1569 We had a demonstration of intent about the matter at least two years ago. We had a demonstration on the First Reading of a Bill under the Ten Minutes Rule, and widespread expressions of good will in March, 1955, that led to absolutely no action at all, to no improvement in the law, and, clearly, at that stage, to no desire on the part of the hon. and learned Gentleman's predecessor and the Home Office generally to assist us in that improvement.
I think we should all like to feel that at this stage we were treating the Second Reading, which I hope the Bill will get, not as a demonstration, because the time for demonstrations on this question has gone past, but as a prelude to having such a Bill on the Statute Book at a very early date.
In view of the tenor of the debate throughout the day, it would indeed be highly disrespectful to the views of the House if the Government were to think that, having allowed the Bill to get a Second Reading, they need not worry about it very much more. I think that the hon. and learned Gentleman a little over-estimated the division of opinion which has been expressed during the debate. He said that this division of opinion ran, not down the House, but across the House. I am not quite sure what he meant by that.
§ Mr. Jenkins
That may be an absolutely fair point, but the idea that the House was divided into four quarters with one quarter on this side and one on the other side in favour and equally one quarter on either side against the Bill would be an entirely false picture of the debate. Apart from the rather confused complacency of the hon. Member for Exeter (Mr. Dudley Williams) I heard no support at all for the law as it stands or for any suggestion that it is not in need of drastic reform.
I hope, therefore, that the Government will take note of what is, in many ways, the remarkable fact that after a full day's debate on a Private Member's Bill, on what might reasonably be regarded as a very difficult and controversial subject, there has been only one hon. Member in 1570 the whole House who has thought it worth while to come here and oppose the principle of a Second Reading. That seems to me a very remarkable fact which, I am sure with the best intention, perhaps the Joint Under-Secretary did not fully bring out in the course of his speech.
It is not only opinion within the House that is clearly in favour of reform, broadly along the lines of the Bill. In the course of the past ten days we have had support for the Bill expressed by The Times, the Manchester Guardian and the News' Chronicle amongst daily newspapers, the Sunday Times and the Observer among the Sunday papers and the Spectator, the New Statesman and Nation and the Economist among weekly journals. I should find it very hard indeed to think of any other cause which would bring together all these journals. That also is a remarkable fact which ought to be taken into account in the Government's consideration of what is to be done on this matter.
I think, also, that there is a degree of urgency for this reform. We have heard a great deal about the year 1954 and the five prosecutions, associated with various other acts of illiberalism which took place during that year. We are all inclined to assume, and we certainly all hope, that that 1954 is behind us and that there will be no early repetition. We have not, of course, heard either from the hon. and learned Gentleman or any other Government spokesman why 1954 occurred, and why 1957, 1958 or 1959 arc different, but, particularly as I regard the hon. and learned Gentleman as one of the harbingers of a more liberal era, I would not wish to press him on that point. Nevertheless, because 1954 is a few years behind us, we should not regard this problem as in any way lacking in urgency.
We have a good deal of evidence, not only of the illiberalism of the law as it expressed itself in 1954, but of the fact that, particularly because of the law's extreme vagueness, a printer's censorship continues at present. And it is a printer's censorship which is probably a good deal more stringent than any censorship which, even under the Hicklin judgment, the courts would choose to impose—because printers desire not only to keep themselves just inside the law but clear of any possible proceedings in the courts.
1571 There are possibilities of the actions of printers in this matter being followed by the actions of librarians and of booksellers. My hon. Friend the Member for Rossendale (Mr. Anthony Greenwood) mentioned that a leading firm of booksellers had been rather restrictive in its attitude to the distribution of a book at present, and not a book directly concerned with the question of obscene libel. I would not be too confident about the future actions of that firm in this respect. It was the same firm that refused to distribute Hardy's "Jude the Obscure" in the 1890s and which is now refusing to distribute Mr. Randolph Churchill's "What I said about the Press," which shows that the firm has a fairly catholic taste in the books that it chooses not to distribute. Certainly there is a danger here of a growing unofficial censorship.
Then there is the Customs procedure. I agree that in this case, as in most other matters with which we are dealing, there are no doubt difficulties about instituting a new system. I was, perhaps, a little disappointed that the hon. and learned Gentleman stressed to such an extent the difficulties of a new procedure, rather than the disadvantages of the existing procedure, in what he said about the present system by which the Customs deal with the matter.
We have just had a case in which the Customs procedure has come before the eye of the public. This is the case in which the Birmingham City Librarian, after reading a notice in The Times Literary Supplement, decided to order for the City of Birmingham libraries some of the works of Jean Genet, and had them seized by the Customs authority.
§ Mr. Jenkins
Yes, the works were in French. The hon. Member for Exeter, who addressed us at considerable length but who has not honoured us with his presence at such length——
§ Mr. Dudley Williams rose——
§ Mr. Jenkins
I beg his pardon. The hon. Gentleman spoke in rather pejorative terms about M. Jean Genet—choosing to pronounce his name in a way which added to the pejorative nature of his description—and spoke even more pejoratively about M. Jean-Paul Sartre who, 1572 he rightly said, was an admirer of the works of Jean Genet.
I frankly admit that there is undoubtedly a good deal of room for difference of opinion about both the character and the literary works of M. Genet, but where there is no room for a difference of opinion is the extraordinary behaviour in which the Customs under the present law are allowed to indulge, a position, in fact, in which the normal procedure of British law, in which there is a presumption of innocence until guilt is proved, is completely reversed.
The position under the present Customs procedure is that the Customs can seize any book they like coming into this country, and that unless the lawful owner of the book himself takes the trouble to institute legal proceedings to dispute the action of the Customs authorities, that is the end of the matter. It seems to me a most undesirable state of affairs. Under any reasonably liberal system the onus of showing that a book is obscene ought to be on those who wish to destroy it, but there is no such provision at present.
§ Mr. Simon
I am not sure that the hon. Gentleman is not muddling the onus of bringing proceedings before the court with the onus of proving obscenity. The procedure of the Customs, as I understand it, is that, when they seize any matter which ought not to be imported—whether it is obscene or objectionable for any other reason—give notice to the consignee, the owner, and he may then bring the matter before the court. That, however, is merely the onus as to bringing before the court. He is given notice, and he himself, if he thinks it is wrongly seized, can bring the matter before the court.
§ Mr. Jenkins
I am sorry if I suggested in any way that the position was different from the way in which the hon. and learned Gentleman has clearly stated it. I am arguing, and would continue to argue, that it is undesirable that there should exist a right on the part of the Customs to seize matter of this kind, independently of any legal proceedings, unless the individual concerned is willing to incur the odium—which it may well be in many cases—of himself taking legal action to dispute what is being done. After all, what would happen if it were 1573 the position generally under our law that the police, or whoever it may be, might say to the individual, "Nothing much more will happen about this. There will be no publicity, there will be no proceedings that you need worry about, provided you yourself do not take action to bring the matter before the courts." I should have thought that undoubtedly many people would fall for such an offer, and that is exactly the position of the present Customs procedure.
§ Mr. Edelman
Before my hon. Friend proceeds with his indictment of the Customs being illiberal, will he inform the House that Jean Genet's Roman d'un Voleur is a paean in praise of homosexuality, notorious both in France and in many circles of this country too?
§ Mr. Jenkins
I have been interested throughout the debate to watch the way in which the wholehearted support for the Bill which my hon. Friend the Member for Coventry, North (Mr. Edelman) claimed at the beginning of his speech has been delicately modified as our proceedings have gone on. I was broadly aware of the nature of the work, though not quite with my hon. Friend's expert knowledge. What is undoubtedly the case about the work is that, while there is room for a good deal of difference about its merit, there are many French literary critics of undoubted authority who think it is an important literary work. It was noticed prominently in The Times Literary Supplement, and the Birmingham City Librarian thought it desirable to have in the reference library a copy—in French, as was pointed out by my hon. Friend the Member for Deptford (Sir L. Plummer)—available for students of French literature.
I do not understand the point of my hon. Friend's interjection unless he wished to dispute what I have said and say that, because of the fact which he put forward for the consideration of the House, it is highly undesirable that such a work, in French, should be available in the reference library of the Birmingham City Council.
§ Mr. Dudley Williams
In fairness, the hon. Member should point out that The Times described this work as a repugnant sink of evil. I should have thought that there was ample justification for the action by the Customs.
§ Mr. Anthony Greenwood
Is not the importance of Genet proved by the fact that the British Journal of Delinquency devoted a four-page review to the work, which was on the whole. I gather, in favourable terms?
§ Mr. Jenkins
It is clear that we have a good deal of conflicting evidence. I should have thought that in view of that conflicting evidence, hon. Members would have thought it desirable that some serious students of French literature, even in Birmingham, should be able to make up their own minds about it.
I wish now to deal with some of the points which have been raised, principally in the extremely helpful speech of the hon. and learned Member for Chertsey (Sir L. Heald). As I understood it, the right hon. and learned Gentleman was a good deal doubtful, in respect of not principle but practice, about our suggestion that an author or publisher should be represented when proceedings were being taken under the Obscene Publications Act, 1857. I would certainly bow to his legal knowledge. All I would wish to put before him and the House is the fact that the present position in this respect is highly unsatisfactory. An author or a publisher can have his good name brought into ill-repute without having any chance at all to put forward a defence on his own behalf.
There was a famous case—we are going back a little while, but, after all, the hon. Member for Exeter invited us to consider the operation of the law over the past 100 years—to which I wish to draw the attention of the right hon. and learned Gentleman. When Havelock Ellis's "Sexual Inversion" was published in 1898, a bookseller was charged with publishing an obscene libel. Havelock Ellis himself briefed Horace Avory and prepared a most elaborate defence. However, the bookseller pleaded guilty and Havelock Ellis was unable to put forward any word in his own defence. The magistrate summed the whole thing up by saying:It is impossible for anybody with a head on his shoulders to open this book without seeing that it is a pretence and a sham and that it is merely entered into for the purpose of selling this obscene publication.The only point that I want to make at this stage is that as the law exists at present there is a genuine difficulty and 1575 a genuine unfairness to certain people who might be involved. As to how we might deal with this, we should be open to consider detailed suggestions at a late stage of the Bill.
The hon. and learned Gentleman also queried our extension of the meaning of obscenity" to cover undue exploitation of cruelty or violence.
§ Sir L. Heald
I have an open mind on the matter. There is some misunderstanding, because I merely rose on some question of definition.
§ Mr. Jenkins
I think I am speaking on behalf of the noble Lord the Member for Berwick - upon - Tweed (Viscount Lambton) when I say that we have an open mind on that point, too. The Bill was drafted before the Harmful Publications Bill, dealing with horror comics, had been put before the House. We thought it desirable, because we believed it possible to give greater security in regard to genuine literary matter while also dealing with the whole subject of the corruption of youth by means of horror comics. We thought that might be done by extension of the normal meaning of the word "obscenity". The Clause was first included to deal with that situation. When we redrafted the Bill we thought there was some sense in keeping it in, because it might give a better approach than the Harmful Publications Act.
I speak for myself, but I suspect that the noble Lord would agree with me, in saying that we would not regard this Clause as an essential part of the Bill but as something on which we should be very happy to be guided by the House or by hon. Members who happen to be on the Standing Committee or on the Select Committee, or whatever it might be.
My hon. Friend the Member for Coventry, North raised another specific objection. He was strongly against the admission of expert evidence. There may be a case against the admission of expert evidence, but if there is I did not hear a very strong one today. As far as I understand his main argument, it was that if we allowed expert evidence there was a danger that the homosexual literary critic might give criticism or expert evidence adverse to books dealing with 1576 heterosexual subjects. I hope that the House will not reject this proposition on the basis of a contingency so unlikely.
§ Mr. Edelman
I used it only as an illustration. I said that it was very much a matter of taste and that to invite people to give evidence on matters of sex in order to establish proof of literary quality was not in itself an exclusion of pornographic quality. The hon. Gentleman is now advancing the argument that it is possible to separate content and form and that, provided we can establish that a work has literary value, its pornographic content is unimportant. I cannot accept that argument.
§ Mr. Jenkins
My hon. Friend not only said that sex was a matter of taste. He repeated it several times in his speech. I did not find that approach particularly helpful to our desire to produce a censorship Bill which will be at once liberal and reasonable. I hope that the House will take the view, which I understand was put forward by the hon. and learned Member the Joint Under-Secretary of State for the Home Department, that there is a great deal to be said for the admission of expert evidence.
Of course, we are not suggesting that expert evidence should determine the whole matter. We have claimed that there might well be cases where expert evidence should be a relevant consideration to be taken into account by the court. In those circumstances it is highly undesirable that it should be there, readily available, and should be prevented from being called by the state of the law.
§ Mr. N. Nicolson
Before the hon. Member leaves the point about expert evidence, can he say whether the Clause would allow evidence to be given for the defence upon the professional standing of the author or publisher of a work? As at present drafted, the Bill would not permit of any evidence of that kind but only evidence upon the specific work under consideration.
§ Mr. Jenkins
I speak with extreme hesitation on that point, but I should think it would be possible for character evidence to be called for the defendant under the existing law. That is what I understand the hon. Member has in mind. It would not be affected one way or the other by the part of the Bill that we are now considering.
1577 I began by saying that while we are naturally extremely pleased and grateful that the Government will not oppose the Second Reading of the Bill, we are less pleased that the Government will want to make fairly substantial changes in it. Let me say straight away that this is not because we wish to take up any attitude of dogmatic certainty about the perfection of the Bill as it stands. I have been concerned first with one draft of a Bill and now with another draft of a Bill and I have no desire at all to say that one particular draft answers all the questions. What we want to get away from is the position in which one is able to say that one is in favour of the Bill in principle and of reform in principle, but is against it in practice in whatever form it is presented. That is the slight fear and the slight hesitancy that I think that we have at the back of our minds at the present time.
§ Mr. Jenkins
I am extremely glad to have that intervention from the hon. and learned Gentleman and to know that he recognises this fact.
This is a difficult and complex subject—I am not for one moment trying to deny that—but I was interested to the extent to which once or twice in his speech he seemed to be suggesting that the earlier Bill—the Bill presented by the hon. Member for Stafford and Stone (Mr. H. Fraser) was perhaps better than this second draft of the Bill in one or two isolated respects.
The hon. and learned Gentleman said that, in general, he preferred, as I do, this new draft, but there were one or two matters in which he seemed to be moving back a little towards the earlier draft, and I express the hope that we are not going to get into the position whereby we move backwards and forwards between an almost unlimited number of possible drafts without accepting one.
As I understand it, the chief difficulty which the hon. and learned Member felt about the present draft was that it would 1578 make it more difficult to prosecute successfully cases of mere pornography. As the hon. and learned Member has admitted, and as is undoubtedly the case, those responsible for this Bill have no desire in any way to encourage the pornographic trade or to make things easier for pornographers. I hope that neither the hon. and learned Gentleman nor anyone else will rest too much on this position, because I should have thought that if anyone were considering objectively the present position of the censorship and how it operated in this country at the present time, they would say that in London, and no doubt in the country as a whole, the sale of pornographic material today flourishes about as much as it does in any country in the world, and that, on the other hand, there is a great deal of uncertainty so far as pub-Ushers of repute of works of literary merit are concerned. In other words, we are already pretty near to getting the worst of both worlds.
I think that has been powerfully brought out by the Economist in one of its notes of the week published last week. Therefore, we are not in a position, of having already struck a desirable balance from which it is very undesirable that we should be dislodged. We are at present in the position in which the balance struck is about as undesirable—perhaps it would be an exaggeration to say as it is possible to imagine—as is struck in any civilised country. Therefore, do not let us take the view that any change is likely to be a change for the worse.
It seems to me—though I would not wish to pitch the merits of the Bill nearly at low as this—that the position at present is such that any change is likely to be a change for the better, in the matter of striking a reasonable balance between straight forward pornography and works of literary merit. Therefore, I very much hope, in view of the Government's attitude in the debate, that the interesting and in some ways complex suggestion that the Bill might go before a Select Committee and not a Standing Committee is made in the spirit of wanting to see an enactment placed upon the Statute Book very quickly.
I should like to know how the hon. and learned Member envisages proceedings 1579 being conducted in the Select Committee. As I understand it, it would be possible to use the Select Committee merely as a means of general investigation of the problem. I hope that I am right in assuming that the Joint Under-Secretary has no such desire but that, on the contrary, while the Select Committee could go wider than the Standing Committee, his general understanding is that it would be a substitute for the normal Committee stage. I hope that it would work with the Bill as its terms of reference, and that the normal process would be that it would produce a Bill which, though no doubt amended, was based upon the noble Viscount's Bill at the end of its proceedings.
Secondly, although as a method of proceeding a Select Committee has some advantages, it is not always the most expeditious means. We must clearly take into consideration the possibility that such a Select Committee would not have completed its deliberations in time for the Bill to have a Report stage and a Third Reading in the normal time allocated for Private Members' Business towards the end of the Session. I would hope that the proceedings would be completed in time, but we must certainly ask what the position would be if they were not.
In that case would the help which the Government have offered extend to giving Government facilities for the Bill in the next Session? I very much hope that they would, and I believe that it is the desire of the House that that should be so. Perhaps the Joint Under-Secretary could give an answer to that point.
§ Viscount Lambton
I should like to associate myself with some of the thoughts of the hon. Member for Stechford (Mr. Roy Jenkins), but I would assure my hon. and learned Friend that I am only too anxious to fall in with his suggestion, and later on to move that the Bill be committed to a Select Committee. I should be very grateful, however, if the Joint Under-Secretary could reply to the questions which have been put to him.
§ Mr. Simon
If it is for the convenience of the House I shall certainly try to answer the questions which have been asked of me. As I understand it—and many more experienced Parliamentarians 1580 than I are present—the procedure of a Select Committee is completely within the control of, and the responsibility of, that Committee. It can send for persons and papers; consider the earlier version of the Bill together with this one; examine the existing law, and make any report it chooses.
With regard to expedition, the normal procedure is that if a Select Committee has not finished its deliberations by the end of one Session it is reconstructed at the beginning of the next and continues from the point at which it left off. That happened in the case of the Select Committee on the Army Bill, which, I think I am right in saying, continued for more than two Sessions. Naturally, any offer by the Government to endeavour to help the work of that Select Committee would apply to the reconstruction of the Select Committee.
On the subject of expedition, I threw out the idea of a Select Committee generally, but really, the promoters of the Bill must decide amongst other things, not only the difficulties of drafting the Bill, but what chance they stand of getting the Bill at all out of the Standing Committee this Session.
§ Mr. Jenkins
I am extremely grateful for what the hon. and learned Gentleman has said. Of course, the noble Lord and the others associated with him must, as he says, make their own decision about the Select Committee, but we are naturally anxious to make our decision on the fullest possible information that the Under-Secretary can put before us.
There is just one other point that he has not covered. If a change of Session were to occur during the work of the Select Committee, I understand that the Bill which would emerge from the Select Committee would require another Second Reading and another passage through all its stages. I hope that we can at least have an expression of good will from the Government that they would try to find time for those stages in such an event.
§ Mr. Jenkins
We are naturally disappointed with that answer, but I hope that he and the Government will take account of certain expressions of disappointment which fell on the House when he had to make that answer as, no doubt, within the terms of this brief, he had to.
I think I can say that we will, in all the circumstances, although perhaps with a little reluctance, accept the Select Committee, but we hope that what I think is the intention of the House will be carried into effect, that is, that certain dominant features of this Bill will be continued in existence. In the first place, that what is, in legal language, referred to as mens rea will become part of the law in this respect; that the offence of obscene libel will no longer be separated from almost all other criminal offences by being something which can be proved without any reference to the guilty mind of the person charged. Secondly, whether the words chosen are "dominant effect", as we say in our Bill, or "as a whole" as the Under-Secretary prefers, that it will be at any rate the work in total which will be taken into account. Thirdly, that due regard will be had to the class of persons amongst whom it is intended that the work should be circulated.
Let me say in a concluding sentence that I hope very much that we can make real and rapid progress here. I hope that the hon. and learned Gentleman will not misunderstand me if I say that the reputation of his Department for liberalism is, perhaps, in need of a little burnishing at present. To help the Bill on its way will give him and his Department an opportunity to do that, and I hope and believe it is an opportunity that they will not lose.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Select Committee.—[Viscount Lambton.]