§ As amended (in the Standing Committee), considered.
§ New Clause.—(DEFENCE OF PUBLIC GOOD.)
- (1) A person shall not be convicted of an offence against section two of this Act, and an order for forfeiture shall not be made under section three thereof, if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.
- (2) It is hereby declared that the opinion of experts as to the literary, artistic, scientific or other merits of an article may be admitted in any proceedings under this Act either to establish or to negative the said ground.—[The Solicitor-General.]
§ Brought up, and read the First time.
§ 1.2 p.m.
§ The Solicitor-General (Sir Harry Hylton-Foster)
I beg to move, That the Clause be read a Second time.
I hope that this new Clause will be accepted by the promoter of the Bill for what it now is, a complete effort to dismiss once and for all the fears that he and his supporters have had on this topic, that in some way the kind of evidence they want to call might be excluded from the defence or otherwise in proceedings under the Bill.
I have to acknowledge that it is all my fault, because, had I been able to convince the promoter and his supporters, we would not have had to have this Clause. If I try again to explain to the House our reasons for thinking that there is no necessity for their fears, it is not because I am feeling eminent or infallible, or worthy of any of those pejorative epithets attached by us to the opponents of our propositions, but because I must not present the House with this Clause unless I make quite plain what we conceive its limitations are. I am, therefore, in no way presenting it to the promoters without indicating what it does and I hope that it will completely dispel any fears that they have.
If I may go back to first principles, I would say that the law of evidence ordinarily allows only evidence of fact, but exceptionally it allows evidence of opinion. As to when it allows evidence of opinion, I am bound to accept the general statement 804 from Halsbury's Laws of England, quoted by the hon. Member for Birmingham Stechford (Mr. Roy Jenkins) in Committee, namely, that "opinions of experts are gevrally admissible whenever an issue comprises a subject in which knowledge can only be secured by special training or experience."
I know of no instance in which Parliament has sought to interfere with the limited field in which the law permits evidence of opinion. In making this point in Committee, I did so in such wide terms that I stuck my neck out so as to incur the genial censure of Sir Alan Herbert against me in The Times. I do not mind that, because he has acquired a credit against me for all the enjoyment which his works have given me and he can go on drawing on it for a long time; but battered with Bardell v. Pickwick, and no doubt bloody, I am still unbowed. I insist that the essential point is true and that Parliament has never sought to change what the law lays down as the scope of the field in which evidence of opinion is admitted.
We thought—I hope that the House will take the same view—that it would be a bad precedent to alter the scope of that field by a change in the law relating to some particular subject matter. The new Clause does not do that. We make it declaratory in form, which does not matter from the promoter's point of view and keeps it innocuous in the sense in which I was talking.
What is the peril of which the promoters are afraid? There is another rule, familiar to lawyers and laymen, that neither an expert witness nor any other person can in any ordinary circumstance be asked to express an opinion on any of the issues, whether of law or fact, which a court and jury have themselves to decide. That is well recognised. I suppose that it runs on the principle that we accept that we do not have trial by experts; we have trial by court and jury.
It is said that the evidence of experts has in the past been excluded or rejected in prosecutions relating to the publication of a literary work. The answer is. "Yes they have," although I do not know of any parallel instances relating to art or science, and, indeed, the instances in which there have been such rejections are, I think, fairly thin in the history of the matter. On what principle has that 805 rejection been made? I have had regularly cited at me by the hon. Member for Stechford in Standing Committee and by Sir Alan Herbert in the Press, the case in which the then Sir Norman- Birkett appeared for, I think, the publishers. I thought that I might take that case to illustrate the point that I seek to make.
As I understand it, the evidence tendered by the witnesses in that case was not rejected on the ground that they were experts, or that literature was not a type of subject in which one could not acquire a state of expertise by special training or science. Indeed if hon. Members who have the OFFICIAL REPORT of the Standing Committee look at the citation of what Lord Birkett then said, as given by the hon. Member for Stechford on 18th March, it appears that a number of the witnesses whose evidence was rejected were to express the view that the work was not obscene.
Clearly, one can understand that that proposal would fall foul of the principle that we all accept, and the promoter of the Bill accepts, that neither the expert nor any other witness is to be entitled to give an opinion about the very issue that the court has to decide. No doubt under the old law there was room for the rejection of the evidence of such witnesses on that basis, and, also, under the existing law, that is, under the common law of obscene publication, it is arguable that the literary merit or demerit of a literary work is wholly irrelevant once it appeared that the work tends to corrupt and deprave, and for that reason it was decided to exclude the evidence under the law before this Bill.
The view which I wanted to present to the House is that under the Bill the position is wholly different, because in the Bill as it stands we provide the defence which we have called "of public good". Hon. Members will find it in Clause 2 (6), where they will read:A person shall not be convicted of an offence against this section if he proves that publication of the matter in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.…I should like to stick to literature to avoid having to mention all the other matters. I submit to the House that 806 this defence involves at least two principal questions. The first question to be asked is: is the publication in the interests of literature? If it is, the second question to be asked is: is it justified as being for the public good on that ground?
I conceive it that the second question —is it justified as being for the public good on that ground?—is the very question which the court or jury have to decide, and the view which I submit to the House is that neither under the subsection as it is, with the words about expert evidence in it, nor with those words out of it, would the court allow evidence of opinion to be called as to that question.
I rejoice to see present the hon. Member for Lewisham, North (Mr. MacDermot). There was some possibility that he would not be able to be here. The point which I have just mentioned was a point about which he spoke in one of the many valuable contributions which he made to our discussions in Standing Committee. We have considered all the points which he took—indeed, I have considered them personally—and I have that point in mind. The House will see that subsection (2) of the new Clause confines and makes clear the question as to which the expert evidence is to be admissible.
Turning to the other question which arises on this defence—is the publication in the interests of literature?—we have thought, and I must confess to the House that I still think, and shall always think, that no court would say that the literary merits or demerits of the work were irrelevant to the question whether publication of it was in the interests of literature, and that no court would say that literature was not a topic on which one cannot acquire an expertise in the sense of which I am speaking. If the court were to take such a view, I can imagine some uproar from the professors of literature at some of our universities.
§ Sir Kenneth Pickthorn (Carlton)
With respect, I think that my right hon. and learned Friend used one more "not" than he intended to use.
§ The Solicitor-General
I think that that is very likely, but no doubt it would not have appeared in HANSARD if my hon. Friend had not been alert enough to notice it.
807 As I was saying, it would not go very well with professors of literature if it were suggested that such expertise could not be acquired, nor do I think that any court would ever say it. That is why I urge the view to the House that it is right to believe, before any express provision is made of any kind in the Bill, that the issue raised by this new defence of public good would have the result in turn that expert evidence, evidence of opinion, would be admitted on the issue which arises under that question.
That is why I regret all the more bitterly that I could not persuade the hon. Member for Stechford and his horn Friends, in Standing Committee, that their fears were ill-founded, but at least I hope that by this new Clause we have done exactly what they want, because, in effect, we declare their fears to be unfounded and declare the law as we believe it to be. I hope that it will get rid once and for all of the fears which are sincerely held.
I may be asked why it is to be done by a new Clause. If it is right to have a declaratory evidential enactment in relation to the defence of public good in respect of a prosecution under Clause 2, we think that it must follow logically that we should have a parallel enactment relating to the destruction proceedings under Clause 3. The tidiest and most commodious way of dealing with it, therefore, was to have a new Clause to avoid repetition. I greatly hope that by taking this step we have firmly met the promoters' wishes and that we can get on with this difficult Bill. I hope that the House thinks that this is an acceptable way of finally disposing of their fears.
§ 1.15 p.m.
§ Mr. Roy Jenkins (Birmingham, Stechford)
The new Clause is entirely acceptable to me and, I hope, to the House. I am grateful to the Solicitor-General and his colleagues for having felt able to put it on the Paper.
As the right hon. and learned Gentleman said, we had arguments in Standing Committee over some of the ground which he has covered today. The purpose of Parliamentary debate is to argue to a conclusion, not to argue to ultimate truth. As we are completely agreed on the conclusion, I propose to say no more 808 except to thank the Solicitor-General and to say that I regard the new Clause as very fair.
§ Viscount Lambton (Berwick-on-Tweed)
I should like to repeat what the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) has said. May I add how much we all appreciate the sympathetic treatment which we received from my right hon. and learned Friend the Solicitor-General in Committee?
§ Question put and agreed to.
§ Clause read a Second time, and aided to the Bill.
§ Clause 1.—(TEST OF OBSCENITY.)
§ The Solicitor-General
I beg to move, in page 1, line 5, to leave out "matter" and to insert "an article".
The Standing Committee decided that the Bill ought to operate not on a "matter", as it was designed to do, but on an "article". They achieved this in the oddest possible way by voting into the Bill a definition of "matter" which, hon. Members will see, consists only of articles. This has resulted in some joyous things. I hope that even as a lawyer I may draw the Committee's attention to the glorious nonsense which we have now perpetrated by that means. In Clause 3 (7) hon. Members will read:In this section 'obscene article' means an article such that if published in any manner in which it was likely to be published, having regard to the circumstances in which it was found, the article would be obscene matter:I hope that Sir Alan Herbert notices that. Something might be done with it.
The result is that it becomes a great deal more convenient and, we think more effective to construct the Bill on the basis of applying to "articles" throughout. The first Amendment is the first to effect that object, and I shall not have to talk about the others on the same question. For that reason, I wish to draw attention to a happy result of this process.
The hon. Member for Lewisham, North (Mr. MacDermot), in particular, will remember that we undertook to be careful that we attained the right result in seeing that words were not left in the Bill which would enable the prosecution to pick out the obscene fractions of a 809 matter from a book or some other object embodying a quantity of matter and base their prosecutions on it. It was everybody's desire that the work should be taken as a whole for the purpose of these proceedings, and one fortunate result of operating upon "article" instead of upon "matter" is that it enables us to be quite sure that the article has to be taken as a whole at all times for purposes of prosecution.
§ Amendment agreed to.
§ Further Amendment made: In page 1, line 6, leave out "matter" and insert "article".—[The Solicitor-General.]
§ The Solicitor-General
I beg to move, in page 1, line 10, after "hear". to insert:the matter contained or embodied in".
|(2) In this Act "article" means any description of article containing or embodying matter to be read or looked at or both, any sound record, and any film or other record of a picture or pictures.||(3) For the purposes of this Act a person publishes an article who distributes, circulates, sells, lets on hire, gives, lends or (in the case of an article containing or embodying matter to be looked at or a record) shows, plays or projects it, or who offers it for sale or for letting on hire.|
§ This Amendment has separate and distinct objects. One of them is to remove the proviso at present in Clause 1 (1) so that we may replace it later with another and better proviso.
§ Secondly, it replaces the definition of "matter" in the Bill by a new definition of "article" and redefines the definition of "publish" in slightly wider terms. Although I do not want to occupy time unduly I must say a word about this because there are points of substance to be argued and explained about it.
§ I understand the difficulties of the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) when he asked us to vote the existing definition of "matter" into the Bill. The hon. Member for Stechford did not want to miss out anything which ought to be included properly in this branch of the law. He did it by putting in the long string of words which hon. Members see on line 20 of page 1, ending with the words "or other article". The result was to make it a very wide enactment. and it is difficult to think of any article which would not be included.
§ We have to consider how best to confine it within the realm which it would be the wish of the House to accept, and we have found it better to do it by the definition appearing on the Paper in more810
§ This is in substance consequential. The difficulty is that it is not the article but the matter contained or embodied in the article which corrupts and depraves. That sounds silly and academic enough in relation to a book where the article is cardboard, ink and the outside cover, but it is not academic in relation to an obscene gramophone disc or an obscene sound recording script, because it is then essentially the matter embodied in it which does the corrupting. The Amendment is put down to meet that point.
§ Amendtnent agreed to.
general terms. It is narrower than the definition now in the Bill because it does not apply to articles to be used. The words
to be read or looked at or both",
together with The provisions of the new definition of "publish", and in particular the references to articles to be shown, played or projected, seem to have given rise to strange apprehensions in some quarters, even in the august columns of The Times, which said that they sought
to bring films, gramophone records and television within the scope of the Bill.
With respect, that is a misapprehension. I do not blame anybody for misjudging these things because of the dreadful turgidity of the words which we are apt to use in finding the right form of legislation. "Film" is not in addition to the Bill; it is in line 21 now. "Gramophone records" is in no sense an addition and is in line 23. For reasons which I will explain, I do not think that in practice what we are doing will involve any peril to television.
§ In proposing the Amendment, we accepted the Committee's view that "publish" should include "distribute or circulate": that is to say, something not involving gain. I am, however, 811 speaking out of my own order and will leave that point for the moment and deal with another one first.
§ The Committee indicated the view that it did not want the whole of the existing common law relating to obscene publications to be supplanted by this enactment. We have accepted that view and followed it with this difference. Hon. Members who were in the Committee may remember that I expressed the view that we were anxious to avoid some of the rather absurd and awkward consequences that would follow from leaving to the common law some kinds of offence and putting other kinds of offence to be dealt with by the Bill.
§ The illustrations that I gave to the Committee to make the point—they may not he in the minds of the House—were that under the definition of "publish" as it now is in the Bill, one of the results would be to leave closely connected acts to be dealt with by quite different forms of law. That sentence of mine was reported in the newspaper with a capital letter to the word "acts". I hope that that will not happen again, because it makes nonsense of the point which I seek to make.
§ The illustrations were that under the definition of "publish" as it is in the Bill, in the case of a film the distribution of the actual reel would be an offence punishable under the Bill with the appropriate new defences available to the defendant and with the penalties that the Bill provides. On the other hand, showing the film, which is the more depraving form of the two activities, would be left to the common law without those defences and with a different set of penalties.
§ To take another instance, the distribution of pornographic photographs would be caught by the Bill and be dealt with in that way and the new defences would be available to the defendant. The showing of dirty pictures to a child, for instance, to evoke lust would still have to be dealt with by the common law with different penalties and these defences would not be available. We thought that that kind of result should be avoided because it would be confusing and anomalous and especially confusing to magistrates' courts. My last instance is 812 not an academic matter. I was surprised to learn that there are about a dozen or so prosecutions a year for that kind of offence. We have sought, therefore, to widen somewhat the definition of "publish," although we have narrowed the definition of matter."
§ I should like to give some further instances because, although I would be out of order in discussing it, I cannot help seeing that there is on the Order Paper an Amendment to my Amendment. It will probably save time if in explaining my Amendment I explain why the words which, apparently, are questioned have been included. Hon. Members were anxious to ensure that a speech or a joke should not be caught. Under the Amendment, they are not caught. There is no article which is published in the case of a speech or a joke. Hon. Members have been worried to keep the risk of any censorship of a live performance of a play out of the ambit of the Bill. A live performance is not caught. There is no comprehension of oral communication in the definition of "publish."
§ Mr. Ede (South Shields)
Would not the report of a speech in a newspaper be an article for the purposes of the Bill?
§ 1.30 p.m.
§ The Solicitor-General
I think that would be a record, but I do not know that anybody wants to exclude that.
§ The Solicitor-General
I presume that the newspaper or what the right hon. Gentleman has in mind would contain or embody matter to be read and, consequently, would be an article, and it would be published if it were distributed, circulated, and so on.
§ The Solicitor-General
I share the right hon. Gentleman's misery at that fact. I am not certain that I would wish it to be applied had I had the misfortune to make a speech tending to deprave and corrupt those whom it was likely to reach. No one would worry, of course, that it might reach the right hon. Gentleman, because 813 he has such vast experience. All right hon. Gentleman who have formerly been Home Secretary have had to deal with such offences, and, I hope, will be sensitive to our need, while enacting this legislation, to ensure that the right classes of pornographic activity are covered.
Why do we want the words "gives" and "lends"? I was saying that the Committee had indicated that by using the words "distribute or circulate" they wanted activities covered in which the element of gain was not involved. They wanted to cover selling and to cover letting on hire. When we remove the aspect of gain, the equivalents of selling and letting on hire are giving and lending. That is why we 'thought it strictly logical, in accord with the views of the Committee, to include these words. They also serve a useful purpose when we want to deal with the single instance.
The word "distribute" has some element of multiplicity about it. It ordinarily suggests handing out a number of copies to a number of different people. The word "circulate", which also has an element of multiplicity about it, suggests the idea of passing one copy among a number of people. We want to be sure, very much on the lines of the illustration which I was giving of the person giving or showing a single dirty picture to a child; we want to keep in this Statute words to deal with that case. "Distribute" and "circulate" would not suffice to cover it.
I hope that nobody will have any fears about the use of the word "plays", because it is plainly tied by the words in brackets which precede it to the playing of sound records. It may be asked why we want the words "plays or projects" which, apparently, have given rise to alarm. We want "plays" for the obscene sound recording strip or record. In my innocence, I did not realise the importance of these dirty sound-recorded strips, but it is a matter against which one wants to keep power.
Despite the fears which have been aroused, I am sure the House will appreciate that a television performance cannot in any ordinary sense be caught. A live performance will not come within these words. I suppose it is right to say that if a person made a record of an obscene television performance and 814 played over the sound record and the film of the pictorial part, in that rather abstruse situation the playing or projecting of the record of the television programme could be caught by these words. It is, however, absurdly academic to think of that.
§ Mr. Kenneth Robinson (St. Pancras, North)
It is anything but absurdly academic. Clearly, the Solicitor-General has not heard of video tape, which is becoming more and more the normal method of transmitting a television programme. It is extensively used in America and already is extensively used in commercial television in this country, and, no doubt, will spread to the B.B.C. The programme is recorded on video tape, perhaps, days before and then transmitted at the advertised time. Clearly, on the right hon. and learned Gentleman's showing, a performance of that kind would come within the ambit of this wording.
§ The Solicitor-General
Certainly, it would. I am obliged to the hon. Member. I meant academic, however, in another sense. I explained to the Standing Committee upstairs, and I hope that my assurance was accepted, that no device was being made here to create some new kind of film or television censorship. There is no intention of using anything of the kind.
What we want to do is, rightly, to meet the known evil of projecting deliberately a pornographic film in a cellar, a cabaret or club, or that kind of place, in private circumstances, which is a profitable pornographic activity. It would not be right to leave that to the common law with the unhappy and anomalous result which I indicated earlier, that the penalty and defences in relation to distribution are dealt with by one branch of the law and the penalty and defences in relation to projection or playing of the sound part of it are left to another part of the law. That is a dangerous difficulty to create for the courts in administering the law, and particularly the magistrates' courts. That is why we have to this extent, and for no more sinister purpose, suggested that we should widen the definition of "publish" in the Bill.
§ Mr. Niall MacDermot (Lewisham, North)
Will the right hon. and learned Gentleman help the House a little further by giving more information about the dozen or so prosecutions of this kind 815 which, he says, are taking place every year? What sort of offences are they? What sort of charges are being brought? That is something which would help us considerably, because part of the objections that were raised on this point were based on the belief that this part of the common law was largely a dead letter.
§ The Solicitor-General
I think I misled the hon. Member. I cannot offhand give more information that I have given. If the House will give me leave to speak again, I will, however, try to get instructions. The precise topic of which I was speaking was the kind of offence which consists of an individual showing "dirty" pictures to children to corrupt or arouse lust, I was speaking of that and not of a cinematograph display in this context. I was speaking solely of the handing of the "dirty" picture to a child. It is that type of prosecution, the publication of an obscene libel in that context, of which, I am told, there is a dozen or so a year.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
I should like to intervene on the limb of the Solicitor-General's argument which dealt with the question of narrowing the definition of "article." The right hon. and learned Gentleman's propositions were, as I understood, under two heads. The first dealt with the widening of the term "publish" in the Bill and the other the narrowing of the term "article" He said, as I understood, that the definition of "matter" under the Bill was too wide and that as a matter of language and exact formula the proposed wording was preferable.
The Amendment in the Bill was a consequence of the treatment of this matter in Standing Committee, and the right hon. and learned Gentleman made the point that the definition of "matter" contained a succession of particular items as part of the definition and then ended with the words "sound recording or other article." He said that it was difficult to conceive of any article which would not come within that definition. He put that forward as a reason why the wording now proposed was preferable.
Does not exactly the same objection apply to the definition of "article" in his Amendment? Can he or any other hon. Member think of any article which 816 does not contain or embody matter to be read or looked at, or both? I should have thought that exactly the same criticism and objection applied. I suppose that in this age of marvels it is just possible to manufacture an article which is too small to be looked at, but unless that is true, and unless one gives the draftsmen the benefit of that doubt, it would seem that the Solicitor-General has adopted language which is all-embracing and which includes every article known to man. In that respect—I do not say that it is true in all respects—the definition in the Amendment shows no improvement upon the definition of "matter" in the Amendment passed in Standing Committee.
§ Mr. J. Grimond (Orkney and Shetland)
The last thing that I want to do is to delay this admirable Bill, but, not having had the advantage of sitting in Committee under the guidance of the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) and the Solicitor-General, should like to ask one question about the Amendment. We are all under the shadow of Sir A. P. Herbert and we must be careful of the language which we use.
I do not entirely share the fears of the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine). The words "to be read or looked at" imply that this is the particular purpose of the article in question. I can think of many articles which are much better not read or looked at and it has never been suggested that that is their main purpose.
I have no doubt that there is a simple answer to it, but what is the necessity for the wordsand any film or other record of a picture or pictures"?I find it difficult to see what those words add, because I should have thought that anything which came under that heading was covered by the words in the earlier part of the Amendment, namely,any description of article containing or embodying matter to be read or looked at".Surely those words coverany film or other record of a picture or pictures".
§ Mr. Ede
On a point of order. The Solicitor-General began by pointing out that what he means to leave out in this Amendment includes two things—the proviso to subsection (1) and subsection 817 (2) which he reimposes in the words which he proposes to insert. He then said that another Amendment dealt with the reenactment of the proviso to subsection (1). Could he say which of the Amendments is supposed to do that, and may we take it that we are discussing that Amendment with the one now under discussion? Otherwise, we may strike out these words and then not like the words which he proposes to insert in substitution.
§ 1.45 p.m.
§ The Solicitor-General
The further Amendment to which I made reference was the one in Clause 2, page 2, line 34, to add a further subsection. What the right hon. Gentleman the Member for South Shields (Mr. Ede) says is quite right I did not appreciate that I would be allowed to discuss that Amendment with this one, but if the Committee and you, Mr. Deputy-Speaker, think that that is the right course, I should like to ask leave to do so.
I do not think so. The right hon. and learned Gentleman is not in charge of the Bill. I understand that the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) is in charge of the Bill.
§ Mr. Roy Jenkins
Perhaps I may help the House by saying that, while I and some of my hon. Friends think that the Amendment moved by the Solicitor-General is rather wide, we think that the best thing to do is to move on to the Amendment to the Amendment, which I understand you will call, Mt. Deputy-Speaker, so that the discussion can be more closely focussed.
§ Question, That the words proposed to be left out stand part of the Bill, put and negatived.
§ Question proposed, That the proposed words be there inserted in the Bill.
§ Mr. Roy Jenkins
I beg to move, as an Amendment to the proposed Amendment, in line 5, after "sells" to insert "or."
Perhaps it would be convenient to take with this Amendment the Amendments after "lets" to insert "it," and to leave 818 out from "hire" to the third "or" in line 6.
The Amendments touch on the only controversial matter still outstanding between the promoters of the Bill and the Government. They concern the scope of the Bill. Originally, as the Title of the Bill indicates, the promoters were anxious that the Bill should be concerned only with publications, as the word is commonly understood.
The desire of the Government, which they put forward in the draft Clauses for consideration in Committee, was that the scope should be widened and that the Bill should replace the whole of the common law relating to obscenity. We were reluctant to accept that desire, and it might clear the mind of the House if I give straight away the two reasons why we were reluctant to go as far as that and the two doubts which we have about going too wide.
First, the common law at present covers obscenity in every possible aspect, from a speech, a conversation, a chance joke, a lecture, to a film, a play, a television performance, a book—almost anything that one can think of. To the extent that all those subjects are covered in the Bill, it may be said that it is not an extension of the law of obscenity. We take the view that there is a difference between having a perhaps rather archaic bit of common law and enshrining it afresh in a Statute in 1959. We thought that to set up a new law of obscenity for films, plays or television shows, even though we were merely taking it out of the common law and putting it in Statute form, may possibly give a new cutting edge to a law which, over the years, has lost its cutting edge.
We are anxious, so far as possible, to confine ourselves to the matters with which we were originally concerned in bringing forward the Bill. We thought, possibly presumptuously, that in presenting the Bill we knew something about those who were concerned with the written word and associated matters. We had heard their views. We knew the difficulties. We knew what they wanted. In the Select Committtee, we heard a great deal of evidence. We have not concerned ourselves in any way with a range of other subjects, such as stage plays, television performances and films. We have given no opportunity to the 819 parties interested in those matters to make their views and possible difficulties known to us. We were very doubtful, very hesitant indeed, about legislating by the back door, as it were, for a whole range of subjects on which, quite honestly, we did not feel competent to legislate. Therefore, we wanted to keep the issue as narrow as possible. We sought to keep it to publication only.
The Government, in the Standing Committee, sought to extend it to the whole field. We put in a new definition which went some way to meet the Government's point of view, a definition which went some way certainly from the draft of the Bill as originally presented to the House on Second Reading. I think that it can best be summed up by saying that it covered the whole field of tangible objects. We put in photographs and sculptures—"novelties" as, I think, they are called in the trade that the Solicitor-General was so very concerned about in Committee.
We also put in sound recordings, and we also put in films in the sense that films have a tangible quality. We put in films in the sense that somebody sells them to another person. We did not put in films any more than we put in television shows in the sense that they are shown to the public.
This may be said to be illogical, but, of course, we have been up against illogicality all the time that we have been dealing with the Bill. After all, corruption comes not from selling a book but from somebody reading a book. Therefore, this is not absolutely logical. Our purpose, as far as possible, was not to concern ourselves with matters on which we did not feel competent to legislate, and not to build up the possibility of a new censorship on a wide range of activities on which we had no desire at all to legislate.
We are worried about the new Government definition, which, admittedly, is an improvement on the definition they wanted in Standing Committee but which was rejected by the Standing Committee. We are worried about it on two grounds. First, "gives, lends" is rather a serious matter. We had evidence before the Committee that the police would never, for instance, concern themselves with private libraries, but, suddenly, one has got very near to the position in which 820 there might be an invitation to do so, when somebody lends a book from his library to another person, and the police may wish to behave in—what shall I say? —in some way perhaps not envisaged now—I am sure, not envisaged by the Solicitor-General—but which might happen.
We could then have a situation arising in which one person lends a book from his private library to another and so may be leading to a criminal offence. I am quite sure that no one wants that to happen. I am sure that the Solicitor-General will say that that is not his intention at all, but, as everyone knows, when we are legislating in the House we must have regard to the words which we put into the Bill, and not to the intentions of the Law Officers or any other Member of the House. There is only too much experience to show that it is words, not intentions, which count.
The classic example of this is when the Obscene Publications Act, 1857, was going through the House of Lords. Lord Campbell was trying to reassure Lord Lyndhurst, who had not been a notably liberal Lord Chancellor, but who, on this matter, was relatively liberal. There was a very sharp personal quarrel between Lord Lyndhurst and Lord Campbell about it. Lord Campbell said—I am freely quoting him now, but this was the sense of what he said—"It is inconceivable that this Act could be used against books which have any literary merits whatsoever". It is quite clear from what has happened over the last 102 years that Lord Campbell's words have proved not to be the governing factor in the matter.
Therefore, we must have regard to the words, not intention, in considering the words "gives, lends". Frankly, we feel extremely worried that they may lead to gross interference with the rights of private individuals. I think, therefore, that the House should feel able to dispense with these words.
Then there are the words "shows, plays or projects." Again, we do feel considerable doubt about those. We do not want to introduce the possibility of a film censorship. We do not want to introduce a sort of long stop behind the Lord Chamberlain. I am not absolutely sure whether a play is not treated as an illegal show when we say "plays or projects it". I am not sure that would not 821 cover the performance of a play upon the stage. My hon. Friend the Member for St. Pancras, North (Mr. K. Robinson) raised the question of the way in which the showing of television performances has been extended and would be covered by these words, and I am afraid there is the danger here of extending the Bill to new fields to which we do not desire to extend it. I think that the Government would be ill-advised to do so.
Let us not take the view that by excluding these matters we are leaving great loopholes for pornographers. After all, the common law will still remain. What is excluded from the Bill remains subject to the common law. The common law has existed for a long time, and, presumably, has enabled the Government to take what action they want. Had it not been through the promoters of the Bill the common law and nothing else would be the law covering this matter. It has not been on the initiative of the Government that an advance has been made forward from the common law.
I would hope very much. therefore, that the Government will feel able to meet this point by accepting our three Amendments to their Amendment for restricting the scope of the Bill and for resting on the common law in other matters.
§ Sir Leslie Plummer (Deptford)
I beg to second the Amendment.
I wish to make some points which I hope the Solicitor-General will receive as sympathetically as he has received most other points which we have raised with him recently. We have made it quite clear that the promoters of the Bill have no desire in any way to aid the trader in pornography in his work, and the Amendments to the Amendment are not directed to making the task of that gentleman any easier than it is today. I must say, however, that it seems to me that what is now envisaged is taking action which would put the perfectly innocent person in the role of the trader in pornography.
In saying that, I refer to the word "lends" in the Solicitor-General's Amendment. In the Select Committee, I asked the authorities what action they took over the disposal of libraries containing what are advertised by the rather odd term as "curious and rare books". The Solicitor-General, who is a fairly 822 naive person in these matters, would not understand the true significance of those words, but they are well understood by the gentlemen in the trade. They would not, of course, be regarded as pornography, but they bear an honoured name in the auctioneering world. Nevertheless, books falling under this description are sold at auctions, and disposed of in one way or another. The police made it quite clear that there is no concern with that sort of thing at all.
Suppose, however, a man inherits a library which contains some of these books described as curious and rare, and suppose that he lends one of those books to a friend of his and that person in turn leaves it lying around his house so that it falls into the possession of somebody else. Is not that person being made subject to police action?
A man may inherit such a book, and it is not outrageous for a man to have it who does not deal in books of that sort. A man who does not deal in books of that sort may have such a book in his possession. He may have inherited it; he may even have bought the thing some years ago; he may have acquired it on a pleasure trip to Paris, thinking it had great literary merits; and, indeed, it may have. He is not dealing in it, but he lends it in a casual way to another adult, intelligent person. Surely it is not the wish of the Solicitor-General that that man should be put into peril of any sort because of these words in the Amendment, when the man might like to sell the book at auction, and we know quite well that the police would have no objection at all?
This may seem a small point, but there is a question here of putting innocent people in peril, and for this reason I beg to second the Amendment to the Amendment.
§ 2.0 p.m.
§ Viscount Lambton
I should like to support the two speeches just made and to consider especially the words "gives" and "lends" for a reason which has not yet been mentioned. What my right hon. and learned Friend desires—indeed, what we all desire—is to penalise those who make profit out of the purveyance of pornography in one sense or another. If one gives or lends a book, how can one make any profit out of it? There is great 823 danger that penalties could possibly be—I do not say would be—laid upon people who would make no profit out of the transaction. I hope that my right hon. and learned Friend will allow the Amendment to go through in the hope that it could be corrected in another place so as to provide that the giving or lending which entailed profit to a person who pretended to give or lend should become the legal phraseology.
As has been said, there could be nothing so ridiculous as the owner of a library who gives or lends a book, the contents of which he does not know, finding himself prosecuted and brought before the courts. The criterion should be whether a profit was made out of the transaction. Since there is no mention whatsoever of a profit in my right hon. and learned Friend's Amendment, I suggest that is a matter which could be considered and, in all probability, remedied in another place.
§ Mr. John Strachey (Dundee, West)
. I want to ask the Solicitor-General to clear up one point which would, I think, decide my view on this matter. I have been very much impressed by the last two speeches made.
Prima facie, it seems obvious that we intend to confine these pains and penalties to commercial transactions which have the aim of gain for somebody, which I believe to be right. The Solicitor-General asked, "What about the instance of a man who shows a dirty postcard to a child? Would it not be very wrong to exclude him from the pains and penalties of the Bill?" The Solicitor-General went on to say that there are some half-dozen prosecutions for this type of offence today. But does not that destroy his argument for including that in the Bill?
Is it not better that these offences should come under the common law, as he himself says they do quite satisfactorily today, rather than that we should put into the Bill something which, on other grounds, is decidedly objectionable, as I think it has been conclusively explained to us?
If we were concerned directly with the man who shows dirty postcards to a child, we should be convinced by the Solicitor-General's argument and we shoud be forced to make some provision of that kind in the Bill, but surely there 824 is no substantial objection to one type of offence being caught by the Bill and the other being caught by the common law. Is not that the more satisfactory solution?
§ Mr. MacDermot
The Solicitor-General has shown himself so open to persuasion during the various stages of the Bill that we are all very grateful to him. I hope that he will continue to be open to persuasion if we can use sufficiently persuasive arguments. The right hon. and learned Gentleman has already made it clear that Ihe has come a substantial way to meet us. The main question of principle which divided us has gone. As he argued in Committee, he wanted to abolish the common law in this field and replace it by statute law. We who took a different view argued that if that were done we feared that it would have the effect of stimulating and provoking prosecutions in a field in which we believe the common law to be largely a dead-letter.
We did not want to see that happen. Therefore, we thought that this new statute law should be confined to those evils and mischiefs which existed, and about which there were difficulties in the existing law as was seen in the evidence placed before the Select Committee. That difference in principle has now gone. The Solicitor-General now concedes that there are classes of activity which should not be brought within the ambit of the Bill but should be left to the common law. The most important, perhaps, is any kind of live performance. I share the anxiety expressed by my hon. Friend the Member for Birmingham, Stechford (Mr. Roy Jenkins) whether on the present wording the Government have succeeded in achieving that object.
The manuscript of a play is an article. It sems to me very possible that a court might hold that a live performance of that play was a playing of the play and that that was covered by the word "plays". Equally, one speaks of a "theatrical show", and it could be said that a live production "shows" the play. Perhaps that is a question merely of drafting and the wording could be looked at further.
It was gratifying to hear the Government accept that live theatrical performances should be excluded, because 825 at was the matter which was concerning us most. If the Government accepted that, if would mean that there would be no precedent left in the reported cases in the textbooks of any publication of an obscene libel in the sort of activity which the Solicitor-General now wants to bring into the Bill, for example a film show.
In Committee, when we argued this matter, the Solicitor-General drew my attention to two cases and a textbook. The first case, Curl's case, decided at the beginning of the eighteenth century, was concerned not with a theatrical performance but with the publication of obscene written matter. The language used in that case was so exceedingly wide that I do not believe that the Solicitor-General would attempt to defend it as a true statement of the common law today. It was accepted by the then Lord Chief Justice that any kind of publication which attacked religion would be an offence against the common law. Clearly, that case was stating the common law in terms which were far wider than anything we find today.
The second case was the Saunders case in 1875. It concerned an indecent exhibition in a booth on Epsom Downs during Derby Week. That was held, without much argument or evidence to support it, clearly to constitute an offence against the common law. On the Solicitor-General's own concession now, that type of case would not come within the Bill as he proposes it should be amended.
The result would be that, as regards the decided cases, there would not be a single case to support it as far as I have been able to ascertain. The right hon. and learned Gentleman has told the House that there are a dozen or so prosecutions a year taking place which would fall within the kind of wording he wants in this Bill. My own view is that if these are limited to the kind of cases about which the Solicitor-General has told us—someone showing dirty postcards or obscene photographs to small children —it would be better to leave those to the common law, because this is analogous to various other common law offences not covered by this Bill.
Such offences as indecent exposure, indecent assault, are dealt with by the common law, and it does not seem to 826 me that there is any necessity to disturb the existing common law practice on this matter, since it has not given rise to any difficulties. It was not referred to in the proceedings of the Select Committee from start to finish. It was not referred to in Committee. Until the Solicitor-General told us about it this morning I do not think many hon. Members were aware that it was going on. So it seems to me that we can leave well alone there.
The Solicitor-General argues for the words "gives or lends" to cover the case of the distribution which is not for gain but is only a single instance. It is only right to point out to those of my hon. Friends who have been objecting to the idea of distribution which is not for gain coming within the ambit of the Bill, that in the second line of page 2 it is made clear that publication shall be an offence under the Act whether for gain or not. No objection was taken in Committee nor in this House to those words, so I feel that, if we are to oppose the Solicitor-General, this is not the principle on which we should do so.
I would take up the right hon. and learned Gentleman precisely on the distinction which he pointed out exists between his wording and the wording we are arguing for by this Amendment. The right hon. and learned Gentleman says that the words "distribute" and "circulate" carry with them the idea of a multiplicity of publications, whereas "gives or lends" would cover the single case. I would suggest respectfully to the House that this is precisely the distinction we ought to draw. Throughout this legislation we are aiming at those who are trading in pornographic matter—I am not dealing with the question of gain or otherwise for the moment—in substantial quantities. It does not seem to me necessary to bring within the ambit of the Bill the odd, individual case, whether it be the example of someone lending a novel to a friend or whether it be the passing of one of those fairly harmless but obviously obscene little pieces of paper which someone shows another in a public house. We ought to confine the Bill to the major traffic in this kind of work.
There is a final point in this connection, namely, that we see on the Amendment Paper that it is the intention of the Solicitor-General later today to move an Amendment which would leave out the 827 provision in the Bill requiring the consent of the Director of Public Prosecutions to prosecute. If that Amendment is to be accepted, as I understand it may be, then it seems to me that it is more important than ever to tighten the scope of this Bill, because we do not want private individuals to initiate prosecutions on trivial matters under this Bill or to be encouraged to do so by our having included those words within it.
§ Mr. Ede
It is with great regret that I dissent from the views expressed by my hon. Friends on this side of the House and by the noble Lord the Member for Berwick-upon-Tweed (Viscount Lambton) in respect of this Amendment. I do not think we are aiming merely at the question of profit in this Bill, and I was surprised to find that the noble Lord thought there was something wrong in making a profit.
§ 2.15 p.m.
§ Mr. Ede
I think the offence is obscenity and not making a profit. We have to face the fact that this Amendment is aimed at protecting the rather wealthy person who shows to young people either books or pictures of an obscene character, not for profit but for the titillation he gets out of seeing the reaction in the minds of the young people. When I was Home Secretary I was approached by the then Chief Scout on the difficulty he found on occasion in scout masters who were engaged, not the whole time but as opportunity afforded, in the corruption of young people, not for profit but for such titillation as they got out of the reactions of the young people.
Everyone who has been connected with our education service knows the problems that arise from the circulation of indecent matter among young people, not for profit. Let us face the fact seriously that there are wicked people in this country who delight in the corruption of youth. For the first time in my experience the Amendment moved by the Solicitor-General is a declaration by the authorities of the country against such a practice. It did not matter so much in the days when the mass of the population were illiterate, but one of the responsibilities that falls on a State which insists on 828 everybody being literate is that it has to take steps to guard against the abuse by wicked people of the opportunities for corruption that this state of affairs creates.
I am well aware that my hon. Friends will all say that they are as vehement in their condemnation of the practice I have described as I am. It has been suggested that because an ancestral library contains a book which, by modern standards, might be obscene, and the owner of the library lends that book, he may be in danger of prosecution. I should have thought that prosecution would arise only if the person to whom he lent the book felt offended at having been regarded by the owner as being a person likely to be amused or titillated by the book. I do not see why, merely to protect the ducal owners of these ancient libraries, we should object to the Amendment moved by the right hon. and learned Gentleman, and if he resists the Amendment, although I always regret voting against Amendments moved from this side of the House, I shall feel that on a Private Member's Bill I am entitled to support even the Solicitor-General.
§ Mr. Robert Jenkins (Dulwich)
On a point of order, Mr. Deputy-Speaker. Having regard to the vital nature of this discussion, and there being very few Members present for this issue, may I call your attention to the fact that there are not forty Members present?
§ Notice taken that 40 Members were not present;
§ House counted, and, 40 Members being present—
§ 2.20 p.m.
§ Mr. Grimond
We have all listened with the greatest respect to the right hon. Member for South Shields (Mr. Ede). As he suspected, I do not think that anyone would dissent from his desire to stop the use of filthy literature for the perversion of the young, but in spite of what he said I would support the proposed Amendment to the Government Amendment on the ground that, however admirable his purpose, the Bill is not the place to put the provisions of the Government Amendment into effect. First, I find its wording rather obscure. Secondly, the right hon. Member for Dundee, West (Mr. Strachey) raised a powerful argument 829 when he pointed out that if there were a danger of literature being used for per. version could be dealt with by the common law.
It seems to me that if we include the words "lends or… shows" we shall make the provision far too wide. Friends across the Atlantic have sent me a copy of Casement's diaries. It is conceivable that these may fall within the purview of the Bill. If the Bill becomes law, as I understand I should be committing an offence if I were to show the book to the Solicitor-General. It cannot be the intention that it should be an offence merely to show a book which might conceivably come under the purview of the Clause.
It may be said that the police would never prosecute in such a case, but as the hon. Member for Birmingham, Stechford, (Mr. Roy Jenkins) pointed out, this argument has been the downfall of many valuable enactments. and I do not think that the House should agree to a provision of this sort when, on the face of it, it could be used for a purpose which the House could not possibly approve.
§ Mr. John Hobson (Warwick and Leamington)
My experience of obscenity is not extensive. Nevertheless, I recollect that in one of the few cases of this nature in which I was concerned the court had before it an enormous quantity of photographs which a gentleman thought might prove salacious and of interest to people who got in touch with him. He had no system of distribution, and he was not circulating the photographs. It was merely a case of those lucky enough to get in touch with him having the photographs sent to them, so that they could enjoy, in their own way, the obscenities to be derived from a series of most disgusting photographs.
§ Mr. Hobson
I should have thought not, but if that is so, the grounds of my opposition to the proposed Amendment to the Amendment fall by the wayside.
§ Mr. Roy Jenkins
Did not the gentleman in question sell the photographs, even though he did not distribute or circulate them?
§ Mr. Hobson
No; he neither sold them nor circulated them. He used to hand 830 them to somebody and allow him to keep them for a few days, the object being that it would lead on to other things. It was usually the introduction to some physical association. In those circumstances, he was lending the photographs as an introduction to other matters.
§ Viscount Lambton
Cannot the Solicitor-General state whether such action would be liable to prosecution under the common law?
§ Mr. Hobson
I leave that for the Solicitor-General to deal with as he thinks fit. I thought it right to draw that sort of case to the attention of the House, as it is obviously something which may require to be covered and perhaps would not be covered either by the common law or by the Bill if the proposed Amendment to the Amendment were accepted.
§ The Solicitor-General
I hope that by gently cheating against the rules of order, with your leave, Mr. Deputy-Speaker, I may contrive, in replying to the hon. Members' Amendment, to answer as well some of the ingenious questions which arose on my Amendment.
The right hon. and learned Gentleman is not obeying my Ruling. He did not move the Amendment himself. Therefore, he has to ask the leave of the House to speak again. He is not in charge of the Bill.
§ The Solicitor-General
But this is the first opportunity that I have had to reply to the Amendment to my Amendment, Mr. Deputy-Speaker.
§ The Solicitor-General
That is not surprising, with so many different aspects to be covered.
Fortunately, some of the problems put to me have fortunately been answered already. The hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) mentioned the width of the definition of "article", which I propose to incorporate in the Bill, in comparison with the definition of "matter" which is already in the Bill. The answer to the hon. and learned Member's point was given by the hon. Member for Orkney and Shetland (Mr. Grimond). If the 831 hon. and learned Member will contemplate, with humility, a tablespoon, not of particular artistic merit, he will agree that it is difficult to say what is an article to be read, looked at or shown, although I dare say that a burglar may have glanced at it from time to time. One could hardly imagine any sane court being asked to construe the word "article" in that context, as comprising an object of that kind.
§ Mr. A. J. Irvine
The right hon. and learned Gentleman will agree that it is often wise to have a look at such an article.
§ The Solicitor-General
It is not made to be read, looked at or shown.
The hon. Member for Orkney and Shetland bowled a rather faster ball at me, which I find rather intriguing. He asked why it was necessary, after talking aboutany description of articles containing or embodying matter to be read or looked at or both…to bother to deal withany film or other record of a picture or pictures.I hope that he will not think that this is all my ingenuity, but those who advise me make the point that a film is not an object primarily to be looked at. It is what the technicians call a transparency. it is the presentation of the film which is looked at. That is why we have to wander into this strange realm of words.
I was surprised to hear my noble Friend the hon. Member for Berwick-upon-Tweed (Viscount Lambton) going back on the words "whether for gain or not." I thought that we had all worked on the basis that whatever kind of offence we were dealing within the Bill it was to be dealt with whether there was or was not any question of gain. I do not think that we should run away from that criterion now.
What is at issue between the Government and the supporters of the proposed Amendment to the Amendment is the point at which we are to draw the line between offences to be dealt with by the common law and offences to be dealt with by the Bill. There is no other issue. If the hon. Member taunts me with not having legislated in this field I hope that he will not pursue the matter, because he 832 has had a jolly good run with his Amendments, thanks to his persistency, upon which I congratulate him.
We are now promoting a new Bill which, on the borderline between the operation of the Bill and the operation of the common law, we fear may cause confusion if courts have to apply one law to one and another law to another of a series of closely connected acts in the form that I have explained. It is solely upon the ground that a new Bill of this kind creates these complications that we have thought fit to widen the definition of "publish."
§ Mr. Donald Chapman (Birmingham, Northfield)
Can the Solicitor-General say whether the common law is adequate to. deal with cases that have been mentioned?
§ The Solicitor-General
It is not part of my case that the common law is not adequate to deal with these matters, but I explained that the result of accepting the view of the Standing Committee, that we should not substitute this Bill for the entirety of the common law, is that we get a dividing line between the two. The important thing, we think, is to get the dividing line at a point where it will not, in practice, create complications and difficulties in the magistrates' courts that have to administer it. It is on that ground, and for the reasons I have given that I ask the House to look favourably on the Amendment as it stands—
§ 2.30 p.m.
§ Mr. A. J. Irvine
Would the Solicitor-General be kind enough to deal with the case raised by his hon. and learned friend the Member for Warwick and Leamington (Mr. John Hobson)? That seemed to present a very fair example of the kind of case that creates a difficulty in the minds of many hon. Members here. In the circumstances referred to by his hon. and learned Friend, is it the right hon. and learned Gentleman's view that the offence would be prosecutable?
§ The Solicitor-General
I am not sure that I was sufficiently attentive to the facts of my hon. and learned Friend's case, but I do not imagine that any display or distribution—or rather, publication—in the strict sense of dirty photographs cannot be caught by the common law in its present form. No one is 833 suggesting that. The difference between us is whether it will not be difficult for the courts to remember that if we are dealing with the distribution of photographs, that has to be dealt with on the basis of this Bill, whereby certain defences would be available and certain penalties applicable; but that if we are dealing with the showing, or the handing out, or the giving of, or the lending of a dirty photograph, it has to be dealt with under a different form of law, with different penalties and without those defences. We do not want to put magistrates in that difficulty.
Perhaps I may give an illustration. One keeps learning, and I learned only recently—indeed, only when my hon. and learned Friend was speaking—that one of the instances they get is the gentleman —I should not say "gentleman", but the person—who goes round putting dirty photographs in the baskets of schoolgirls' bicycles. One does not think of the joys of these things—it is, perhaps, a rather Epicurean form of pleasure.
It is important, I would have thought, to be well armed against that person, and we would be well armed against him by the hon. Member's Bill as he had it, because the man would be distributing photographs. Do we really want to have different defences and different penalties for a person who, instead of putting these things into schoolgirls' bicycle baskets during his round in the morning, hands one photograph to one little girl in equally unpleasant circumstances—perhaps in a room, or elsewhere? We do not think that we should complicate the magistrates task by putting a dividing line between the two matters—
§ Mr. Roy Jenkins
Would not "distribute" still apply, even if our Amendment to the Solicitor-General's proposed Amendment were accepted?
§ The Solicitor-General
I do not run from that. The question is whether I would be right in saying that it would be a complication for the magistrates courts to have to remember that if dealing with the distribution of dirty photographs, or the circulation of one dirty photograph, they must apply one set of law, and when dealing with the handing out or showing of one dirty photograph they must apply another form of the 834 law. We do not think that that is right.
The hon. Member for Deptford (Sir L. Plummer) raised a rather alarming proposition about one of his friends. I do not put it upon him, so let me say that I myself might lend to a friend a book, that friend might leave it about, his children might see it, and I, the lender, in all innocence, would be caught by the provisions of the Bill—that is, if my Amendment is allowed to remain as it stands.
I would suggest that while that is a possibility, it is a very remote one when we remember the test of obscenity. By that test, this article is to be deemed to be obscene…if its effect… is, if taken as a whole, such as to tend to deprave or corrupt persons who are likely, having regard to all relevant circumstances, to read…the matter contained or embodied in it.
I have to take into account for this purpose—and perhaps, with your permission, Mr. Deputy-Speaker, I may say that I hope the House will vote it into the Bill—the proviso in the Amendment in page 2, line 34. That is a new proviso based on an idea introduced in Committee by the hon. Member for Lewisham, North (Mr. MacDermot).
When we have to decide, aye or no, whether something is obscene matter likely, under the definition, to tend to deprave or corrupt, we have to consider whether such publication could reasonably have been expected to result from the publication by the person charged. We are, therefore, concerned only with publication reasonably to be expected to result from my lending the book to my friend.
I would assure you, Mr. Deputy-Speaker, that I do not lend a book of that kind to a friend if I think that there is the slightest risk of it tending to deprave or corrupt him. When I speak of myself, I speak, of course, forensically. I should have thought it quite unreasonable to expect that the person to whom it was lent would leave it about open for his children to look at—if it were a book of that character and he was a reasonable person. I would ask the hon. Member to bear in mind what the definition of an obscene article will be in the Bill. I think that the peril that he contemplates for 835 the particular lender of the particular book to the particular person is really rather a fanciful one.
I should like to add a word about television and broadcasting, particularly in relation to the anxieties expressed about video tape. I cannot remember whether the hon. Member who mentioned this was in the Standing Committee when we discussed it, but we believe that the idea of a prosecution in an attempt to effect a new form of censorship in that field to be quite academic. Television and broadcasting have their own censorship arrangements, as have films.
The point that we have always sought to make, and I believe it to be sound, is that it is inconceivable that on the full public broadcasting of B.B.C. or I.T.A. there would ever be a programme so flagrantly obscene that it could be prosecutable under this Bill. If it were. it would be very difficult for the defendant to defend himself, because such programmes go out and are published to a very wide audience.
In the same way, a film is licensed by the censors for public display, and really, keeping that in mind, what are the prospects of a prosecution which has to go forward at the Old Bailey? I would say that if those publicly charged with this censorship thought the subject matter right for public exhibition—well, it might go as far as a good luncheon with the sheriff, but after that the prosecution would die.
In those circumstances, while I always try to be as obliging as possible, I must here be unobliging, and adhere to my Amendment as it stands.
§ Mr. Charles Doughty (Surrey, East)
I rise with more than my usual diffidence, Mr. Deputy-Speaker, because I did not hear all my right hon. and learned Friend's opening remarks, although I did hear a good deal of what he said and of
§ what was said subsequently by hon. Members. Perhaps, therefore, I can approach this matter with an open mind in making this, my first intervention of any kind in the proceedings on this Bill.
§ Having heard the objections, I must say that I come down against the proposed Amendment to the Amendment. As to the arguments advanced in favour of it, I do not agree that the Bill should deal solely with the making of money out of obscene publications. It is a Bill which should deal with all aspects of obscene publications, and if it does not do that it ought to be amended so that it does. We can all, no doubt, think of many cases where obscene publications have produced very different, more immoral and perhaps more harmful results than the making of money.
§ In the Sexual Offences Bill, which was passed in the last Parliament, we endeavoured, and I think succeeded, in codifying most of the law relating to sexual offences. In my view, the Bill should deal so far as possible with the whole law relating to obscene publications.
§ Viscount Lambton
Are my hon. and learned Friend's fears covered by reference to that Act concerning pornographic material?
§ Mr. Doughty
It is not so covered under the Sexual Offences Act. This is a most undesirable form of giving and lending. It covers a most undesirable form of pornography, using the word not in the sense in which it is used in this Bill. I am sure that it is the wish of the promoters to make this a stronger Bill and I ask them, therefore, not to press the proposed Amendment to the Amendment, but to accept the Amendment of the Solicitor-General.
§ Question put, That "or" be there inserted in the proposed Amendment: —
§ The House divided: Ayes 40, Noes 28.837
|Division No. 91.]||AYES||[2.42 p.m.|
|Albu, A. H.||Hall, Rt. Hn. Glenvil (Colne Valley)||Reeves, J.|
|Balfour, A.||Holman, P.||Reynolds, G. W.|
|Bottomley, Rt. Hon. A. G.||Houghton, Douglas||Skeffington, A. M.|
|Bowden, H. W. (Leicester, S.W.)||Hunter, A. E.||Strachey, Rt. Hon. J.|
|Butler, Herbert (Hackney, C.)||Irvine, A. J. (Edge Hill)||Thomson, George (Dundee, E.)|
|Chapman, W. D.||Isaacs, Rt. Hon. G. A.||Warbey, W. N.|
|Cronin, J. D.||Jenkins, Roy (Stechford)||Weitzman, D.|
|Darling, George (Hillsborough)||MacColl, J. E.||Wells, William (Walsall, N.)|
|Davies, Ernest (Enfield, E.)||MacDermot, Niall||White, Mrs. Eirene (E. Filnt)|
|Deer, G.||Mallalieu, J.P. W. (Huddersfd, E.)||Younger, Rt. Hon. K.|
|Edwards, Robert (Bilston)||Mellish, R. J.|
|Gaitskell, Rt. Hon. H. T. N.||Mitchison, G. R.||TELLERS FOR THE AYES:|
|Griffiths, David (Rother Valley)||Oliver, G. H.||Mr. Kenneth Robinson and|
|Grimond, J.||Peart, T. F.||Viscount Lambton|
|Hale, Leslie||Plummer, Sir Leslie|
|Allan, R. A. (Paddington, S.)||Hirst, Geoffrey||Profumo, J. D.|
|Brooman-White, R. C.||Hobson, John(Warwick & Leam'gt'n)||Rawlinson, Peter|
|Courtney, Cdr, Anthony||Hylton-Foster, Rt. Hon. Sir Harry||Redmayne, M.|
|Craddook, Beresford (Spelthorne)||McAdden, S. J.||Renton, D. L. M.|
|Crowder, Sir John (Finchley)||Macmillan, Maurice (Halifax)||Sharples, R. C.|
|Ede, Rt. Hon. J. C.||Manningham-Buller, Rt. Hn. Sir R.||Simon, J. E. S. (Middlesbrough, W.)|
|Farey-Jones, F. W.||Mawby, R. L.||Thompson, R. (Croydon, S.)|
|Grimston, Sir Robert (Westbury)||Nicolson, N. (B'n'm'th, E. & Chr'ch)||Whitelaw, W. S. I.|
|Harris, Reader (Heston)||Page, R. G.||TELLERS FOR THE NOES:|
|Harrison, Col. J. H. (Eye)||Plckthorn, Sir Kenneth||Mr. Robert Jenkins and Mr Doughty.|
§ Further Amendments to the proposed words made: In line 5, after "lets", insert "it".
§ In line 5, leave out from "hire" to third "or" in line 6.—[Mr. Roy Jenkins.]
§ Proposed words, as amended, there inserted in the Bill.
§ Clause 2.—(PROHIBITION OF PUBLICATION
OF OBSCENE MATTER.)
§ The Solicitor-General
I beg to move, in page 2, line 2, to leave out "obscene matter" and to insert:and obscene article".In view of the patent and firm determination with which the Government are "steamrollering" their Amendments into the Bill, I need say no more than that this is a consequential Amendment.
§ Amendment agreed to.
Further Amendments made: In page 2. line 20, after "matter", insert:
contained or embodied in an article".
§ In line 23, leave out "matter" and insert "article".
§ In line 27, leave out subsection (6).
§ In line 28 leave out "matter" and insert "article".—[The Solicitor-General.]
§ The Solicitor-General
I beg to move in page 2, line 34 at the end to add:(7) In any proceedings against a person under this section the question whether an article is obscene shall be determined without regard to any publication by another person unless it could reasonably have been expected that the publication by the other person would follow from publication by the person charged.The Clause, as amended in Standing Committee, fell under fire from my hon. Friend the Member for Worcestershire, South (Sir P. Agnew) on the ground that it was unintelligible, and it fell under fire from the hon. Member for Lewisham, North (Mr. MacDermot) on the ground that it was not the right test that was being applied.
838 It is difficult to find the right form of wording to apply because one wants all proper forms of publications to be referred to. On the other hand one does not want to have taken into account what will be unfair as against an individual person charged with publication. What the new proviso does is to adopt an idea founded basically on an Amendment tabled by the hon. Member for Lewisham. North, which makes the test that when one is considering obscenity and it is governed by the persons likely to read or hear the matter contained or embodied in the article published, in considering the position of any one publication one has to have regard only to such publications as would reasonably have been expected to result from the publication charged. We believe that is the right and fair answer.
§ Mr. MacDermot
I hope that the Solicitor-General's lucid explanation will satisfy The Times, which was worried about this Amendment. It meets our point. For my part, I am most happy and I hope that the House will accept the Amendment.
§ Mr. Ede
As a former magistrate, I have no faith in those who have survived as magistrates being able to understand what this form of words means at all. Each line seems to contradict the one in front of it and confirm the line but one in front of it. I look forward to many difficult explanations that will have to be given by magistrates' clerks to magistrates when they are considering what these words mean.
§ Amendment agreed to.
§ Clause 3.—(POWERS OF SEARCH AND SEIZURE.)
§ The Solicitor-General
I beg to move, in page 3, line 43, to leave out subsection (7).
The object of the Amendment is twofold. First, to remove the absurdity to which I had drawn the attention of the 839 House; secondly, to remove the proviso to sub-Clause 7, because I will ask the House to put another one in its place.
§ Amendment agreed to.
§ The Solicitor-General
I beg to move, in page 4, line 5, at the end to insert:(8) For the purposes of this section the question whether an article is obscene shall be determined on the assumption that copies of it would be published in any manner likely having regard to the circumstances in which it was found, but in no other manner.The idea is, in destruction proceedings, to ensure that the appropriate test in relation to the obscenity of the article is provided. The proviso that we have just voted into the Bill, the one which the right hon. Gentleman the Member for South Shields (Mr. Ede) found so obscure, which makes it the test to look at the publications which may be expected to result from the publication in question, will not do for the purpose of destruction proceedings, because, there, one does not have any publication to which one can attach a phrase like the publication charged.
We have therefore, to find another test to put in and make it fair under this Clause. If one looks at the circumstances in which the matter seized was seized one can get a fair idea of the kind of publication likely to take place, and that would be a proper guide in this context. It is not difficult when the publication is being sold off a barrow in the street. One has to remember the wide possibilities in that context.
§ Amendment agreed to.
§ Clause 4.—(INITIATION OF PROCEEDINGS.)
§ 3.0 p.m.
§ The Attorney-General (Sir Reginald Manningham-Buller)
I beg to move, in page 4, line 10, to leave out Clause 4.
This Amendment, which stands in the name of my right hon. and learned Friend the Solicitor-General, is the last one on the Notice Paper, and I hope that in the course of this discussion it will have an unusual result for those Amendments. The Amendment seeks to leave out Clause 4 of the Bill, which states:No proceedings under section two of this Act shall be commenced except with the consent of the Director of Public Prosecutions.The first thing I want to make clear to the hon. Member for Birmingham, 840 Stechford (Mr. Roy Jenkins) is that the Government's objection to the Clause is based on principle. I want to make that clear at the outset, because I understand that in Standing Committee the hon. Gentleman said that it was not until my right hon. and learned Friend the Solicitor-General had spoken that ally question of high constitutional principle had been raised. In fact, at the request of the Select Committee, of which the hon. Gentleman was a member, I submitted a memorandum setting out my views on the proposal that no proceedings in respect of obscene libel should be instituted without my consent.
I will, if I may, quote from the memorandum. I said:In my opinion the problem should be approached on the footing that it is a fundamental principle of English criminal law that proceedings may be instituted by private individuals and, accordingly, that the right to prosecute is unrestricted unless some very good reason to the contrary exists.Therefore, right at the very beginning of the long discussions on this subject it was pointed out that there was a fundamental principle involved and one which applies in relation to restricting prosecutions to ones with the consent of the Director of Public Prosecutions, just as it does to restricting them to those with my consent. Indeed, I made it very clear then, for at the end of the memorandum, I said:The conclusions I have expressed in this memorandum apply with equal force to any proposal that the right to institute proceedings should be limited to the Director of Public Prosecutions.Unfortunately, the Select Committee, I am sorry to say, did not give me an opportunity of giving evidence before it in support of that memorandum, and without having heard any elaboration of the views therein expressed it recommended, for a reason which I will deal with in a short time, that the right to begin proceedings should be restricted to the Director of Public Prosecutions.
As my right hon. and learned Friend the Solicitor-General said to the Standing Committee—and I repeat it now—we regard it as most important that the right to prosecute should not be restricted unless there is some very good reason for imposing the restriction. During the course of this year one of Her Majesty's 841 judges— am quoting from the judgment —said:One of the ultimate sanctions of the rule of law in this country is the right of private persons to lay informations and bring prosecutions.I think that that was truly stated.
If one accepts this approach as correct —I have not heard it challenged and I hope that it will not be -then the question whether this Clause should remain in the Bill depends on whether there are good and sufficient reasons for making an exception to the general rule which, in my belief, is a general rule of considerable constitutional importance in England and Wales. The Government have carefully considered this question, and we have reached the conclusion that there is no good reason for departing in this instance from the general rule.
Three grounds for making the departure have been advanced in the course of the discussions. With great respect to those who advanced them, I am sorry to say that we think they are all bad grounds. I want to say a little about each of them in turn. The first reason advanced, and it was the only reason put forward by the Select Committee, was that it was desirable to restrict the right to institute prosecutions in order to secure uniformity in the administration of the law, a point that the right bon. Member for South Shields made in the debate on the Select Committee's Report. He said, on 16th December, 1958:The standards of chief constables on these matters differ very considerably… it is highly desirable that publishers and authors should not be left in the position that a prosecution might be successful in one part of the country but not in another."—[OFFICIAL REPORT, 16th December, 1958; Vol. 597, c. 1029.]What the right hon. Member said then may have been very pertinent some years before, but it was slightly out of date in 1958 for, in 1958, we already had, as we have today, uniformity in the administration of the law in prosecutions by the police. Under the Prosecution of Offences Regulations of 1946, every chief constable is required to report to the Director of Public Prosecutions cases of obscene or indecent libels, exhibitions or publications where the chief officer of police thinks there is a prima facie case for prosecution.
842 Those Regulations in terms impose no restriction on the right to institute a prosecution, but the result has been that since 1946 there has not been one prosecution by the police for any offence connected with the publication of obscene libels which has not been instituted either by the Director of Public Prosecutions or with his consent. So that position is safely covered now.
Although the point the right hon. Member made would have been a very good one but for those Regulations, the effect of which might have escaped his recollection at the time, I hope I have satisfied him and others that it is not a good point now. Equally bad, with respect to him, was the point made by the hon. Member for Lewisham, North, because he said in Standing Committee thatThe only way in which that uniformity can be satisfactorily assured is by making the consent of some person competent to deal with the matter necessary before prosecution can be commenced." —[OFFICIAL REPORT, Standing Committee C, 25th March, 1959; c. 172.]For all practical purposes, the desired uniformity has been achieved and has been in operation since 1946.
§ Mr. MacDermot
I was not speaking in Standing Committee about uniformity of police practice. In fact, I think that I referred in my remarks there to the very point that the Attorney-General is making. I was anxious to have uniformity between private prosecutions and police prosecutions.
§ The Attorney-General
If there were private prosecutions, the observations of the hon. Member would have more point. I am dealing now with the practical matter, which is police prosecutions; because normally people report to the police when they are so brought.
I was going on to say that that was the reason put forward by the Select Committee and others who supported the insertion of this Clause and, in my submission to the House, it is not a good one. They may argue that if no police prosecution is now instituted without 'he Director's consent, no harm can be done by the retention of this Clause. I must confess that I should not think very much of that argument, the argument that one should impose a restriction because it will make no practical difference if one 843 imposes it, but that argument in turn is fallacious. I shall deal with it after I have dealt with the other arguments advanced for the Clause.
The second line of argument was that the restriction is justified on the ground that the offences under the Bill—and I quote words that I have used before in another context—are in their nature liable to provoke vexatious legal proceedings, that is to say, proceedings instituted rather to gratify some whim of the prosecutor than to vindicate his rights or assist in the administration of justice.That is one ground on which I stated in my memorandum to the Select Committee the restriction of the right to prosecute might be justified.
The hon. Member for Lewisham, North said in Standing Committee that it was precisely to protect people against prosecutions of that kind that the Clause is in the Bill. The right hon. Gentleman the Member for South Shields made the same point in the debate on the Select Committee's Report. He said that he remembered a number of prosecutions brought by a young woman in Birmingham which, he implied, were of a vexatious character. I can assure him, and I hope satisfy the hon. Member for Lewisham, North, that there have been no frivolous or vexatious proceedings for this sort of offence since 1946.
The young lady in Birmingham, to whom the right hon. Gentleman referred, did not, in fact, prosecute. She reported the matters to the police and on the advice of the Director of Public Prosecutions police prosecutions were instituted there were no private prosecutions at all. As: there have been no such frivolous or vexatious proceedings since 1946, I must confess that I see no reason to expect that there will be any in the future. I therefore submit to the House that the second reason advanced for this restriction is not valid at all.
I come to the third reason that was put forward. It has been said that there is an analogy between this Bill and the Children and Young Person (Harmful Publications) Act, 1955. I quoted that Act in a memorandum which I submitted to the Select Committee as an example of an enactment where the restriction of a right to prosecute could be justified. I said then that that was 844 justified owing to the difficulties of definition and drafting because the letter of the law is so wide that it could catch persons who have not offended against its spirit.
The House will remember that the Defence Regulations were often drawn in the widest possible terms to ensure that no one whom they were intended to catch should escape from the net, but the very width of the terms might have embarrassed a number of persons whom it was never the intention to bring within the ambit of the Regulations, so in relation to the Defence Regulations it was right to restrict the right to prosecute.
I made it clear when dealing with what perhaps I might call the "Horror Comics" Bill that it was on account of the difficulty of definition that that provision was inserted. I am sorry that the hon. Member for Stechford, no doubt due to faulty recollection, appears to have misled the Standing Committee on this point. He said that the amendment was made in another place. In fact it was not. It was made in this House as a result of an Amendment moved in this House by the hon. Member and after I had told him that the Government would accept the Amendment on account of the difficulty of definition.
I submit to the House that the "Horror Comics" Bill bears no relation to this Bill. There, we were dealing with horror comics which were easy to identify, but difficult to define. Here, the difficulty is not so much that of definition as the difficulty of substance. There was a considerable discussion in the Standing Committee about a particular work, which I will not advertise further, but it was interesting because it reveals the true problem here. The problem in relation to that and many similar works is not that of defining what constitutes an obscene libel so that the law will or will not apply to those works. The problem is not just one of definition, but one of principle. The problem in relation to such a work is to decide whether the law ought to apply to it. and on that subject few people agree.
I am covering the ground as rapidly as I can. Those were the three reasons advanced for the Clause. To my mind, after very careful and, I can assure the 845 hon. Member, sympathetic consideration. they are not good reasons for departing from the general rule and they are not valid. I appreciate the desire for uniformity, but I do not think that the fears about the future have any basis in fact. I have carefully considered it and spent much time with others in considering it, and we have come to the conclusion that we must reject the Clause for those reasons.
The arguments which I have advanced, however, may not commend themselves to the promoters of the Bill as much as two further arguments which I desire to advance and which I will advance shortly. The Clause as it stands will, in my view, lead to results contrary to those which I understand the promoters of the Bill desire. The hon. Member for Stechford has, I understand, on occasion described the supporters of the Bill as liberalisers and its opponents and critics as at heart censors. I do not put myself in the latter category.
This Clause will, in fact, operate to impose a kind of censorship, because if it is allowed to stand, the publisher who contemplates publishing a borderline work will send it to the Director of Public Prosecutions and ask whether there will be a prosecution if he publishes it. One publisher has already told the Director that that is the course which he would pursue. The Director will be asked by publishers to operate a kind of censorship. If he answers the request, that is what he will be doing. If he does not answer it and the book is subsequently published and a prosecution brought, he will be open to criticism for being unhelpful, to say the least. That would be one effect of retaining the Clause.
The second reason, I think, is even more important. The House will appreciate that the Director of Public Prosecutions, if at present asked by people whether he will prosecute, can reply, "I will not prosecute. I do not think that the public interest requires it. If you think that there should be a prosecution you can yourself go to the courts and run the financial risks entailed".
If the Clause is retained in the Bill it will deprive the Director of Public Prosecutions of the right to make that kind of observation. The sole object of 846 imposing restrictions is to secure that the same standard is applied to the bringing of prosecutions, and I want to make it clear that if the Clause is retained the Director could not give consent to someone else prosecuting when he could not himself institute a prosecution. If it is left to him, and only to him, to decide whether a prosecution should or should not be brought, he will be duty bound to put before the courts borderline cases so that they may be tested, because it is only by bringing a disputed work before the court that he can properly protect himself in the execution of his duty.
I have discussed the matter with the Director on a number of occasions and I have no doubt at all that if the Clause is allowed to remain in the Bill it will mean an increase in the number of prosecutions. I have no doubt that that would be the case, because the Director would feel obliged to put to the test many of the cases in which, in the exercise of his discretion at present, he does not prosecute and advises the police not to prosecute.
I am glad to have had this opportunity of putting forward the grounds for resisting this proposal which commended itself to the Select Committee. The hon. Member for Stechford and his hon. Friends who supported it have always been able to rely on that fact. I hope, however, that I have been able to satisfy them that for this variety of reasons it would be an unwise step to insist upon these restrictions. It would, I believe, have an effect contrary to that which they desire. It would also involve a substantial breach in what I regard as a constitutional rule of some importance, although attention is not often drawn to it. It is of importance that unless good reasons can be established, private persons should not be deprived of access to the courts. For those reasons I have moved the Amendment.
§ Mr. Roy Jenkins
The right hon. and learned Gentleman has deployed a full-scale case to the House. I think that in all the circumstances, the House would be wise to accept the Amendment, and to do so as quickly as possible and without further debate.
§ Amendment agreed to.847
§ 3.22 p.m.
§ Mr. Roy Jenkins
I beg to move, That the Bill be now read the Third time.
I do so very briefly. The Bill as it has emerged is a compromise Bill. The Solicitor-General has quite rightly pointed out that Government have not done much steamrollering, but the fact that the promoters of the Bill have, on the whole, won the Divisions, either in Standing Committee or in the House, does not mean that we have not made concessions too. Perhaps we have been wiser than the Government in choosing the Divisions. Certainly, the Bill in its final form bears more relation to the Government draft than to the original Bill to which the House gave a Second Reading two or three months ago. We do not complain about that. The compromise Bill, which has been produced by good will on all sides, will, I think, substantially improve the law in this difficult and complex subject.
In conclusion, I should like to thank those who have made this stage in the progress of the Bill possible, and particularly the noble Lord the Member for Berwick-upon-Tweed (Viscount Lamb-ton), because without his support it would certainly not have been possible to have got the Bill through. There is no question whatever about that. I am also grateful to several of my hon. Friends, particularly the Members for St. Pancras, North (Mr. K. Robinson), Deptford (Sir L. Plummer) and Lewisham, North (Mr. MacDermot), who have been associated with the Bill in all its stages. I am also grateful to the Solicitor-General, who in some ways, particularly in Standing Committee, has had a difficult task on the Bill. He has been beaten in a number of Divisions. We are grateful for the unfailing courtesy and good humour with which he has taken those defeats and for the way in which, working with his right hon. Friend the Home Secretary, he has endeavoured to produce a Bill which would be acceptable to the promoters, to the House and, I hope, to opinion generally which is interested in these matters.
§ 3.24 p.m.
§ Mr. Doughty
I want to say only two things about the Bill and its passage. One is that when the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) was gallantly but rather optimistically 848 trying to get the Bill through "on the nod", an expression with which we are all familiar, it fell to my lot on one or two occasions to object to it. I always hope that non-contentious matters in this House will go through in that way, but after what has happened on Second Reading, in Committee and on Report, how can anybody suggest that this was a non-contentious Bill with which everybody was in complete agreement and which should go through in that way? The deliberations which have taken place amply support the course of action which I took at the very early stages. The Bill having been obtained, the hon. Member for Stechford certainly cannot say that I have held it up in any way, my entire intervention being confined to about three minutes earlier this afternoon.
Now that this compromise Bill is just about to go through, I should like to compliment everybody concerned in it, whom I have seen only from a distance as a spectator on the Bill, on the common sense and give and take which they have shown, which, I hope, will he followed in a great many Private Members' Bills.
To anybody who is completely intransigent and says that a Bill must go through as it is or not at all, the answer is nearly always "Not at all." I had to say that earlier today in relation to another Bill. It was only because a concession was obtained on it at the last minute that we were able to give time for this Bill to reach its present stage now.
I compliment all concerned who have been through the Committee and Report stages on dealing with this undoubtedly difficult subject. We have been talking about definitions and about its ramifications. It is possible to have many different views. The proper discussion of the Bill and the proper Committee stage having been obtained and the Bill having been dealt with in the way that a complicated Bill of this kind ought to be treated, I do not wish to object to it or hold it up in any way. I only hope that it will work well in practice and cure the evils that it is designed to cure.
§ 3.27 p.m.
§ Mr. K. Robinson
The House should not part with the Bill without expressing it; congratulations to my hon. Friend the Member for Birmingham, Stechford (Mr. 849 Roy Jenkins) for all the work he has done on the Bill, and, indeed, on its predecessors. My hon. Friend has been gracious in thanking other people who have helped him, but the fact remains that throughout a period of about four years the initiative has come from him.
I agree with my hon. Friend that this is a Bill which the Government themselves should have tackled. It is a particularly thorny field of legislation, but if the initiative had to be left to a Private Member, it is very fortunate for all concerned that it has been left to my hon. Friend the Member for Stechford. He has been accommodating throughout, he has handled the Bill brilliantly, and I hope that it will now complete its passage to the Statute Book.
§ 3.28 p.m.
§ The Solicitor-General
I should like to make just one or two observations before the Bill goes on its way. I do not suppose that such a complicated matter will entirely escape discussion in another place, but it will not be inspired by me and they are welcome to it as far as we are concerned.
It has been very hard work in Standing Committee. It would have been extremely hard work if the Committee had not been so quick on the point. That was largely due to the succinct, neat and cogent way in which, in particular, the hon. Members for Birmingham, Stechford (Mr. Roy Jenkins) and Lewisham, North (Mr. MacDermot), and other hon. Members interested, stated their case and the fair way in which they recognised from the first that the Government could not escape their duty in relation to this part of the criminal law of seeking to assist their views as we went along from time to time.
We had our brighter moments. There was a moment when I succeeded in voting against one of my own Amendments, and at least one moment when the hon. Member for Stechford succeeded in inducing a Member on this side to vote in favour of my propositions. But those things went by, and we now have a compromise Bill which I hope will be satisfactory in its working and a useful addition to our public law.
I should like especially to associate myself and the Government with what 850 has been said about the hon. Member for Stechford. It is truly his pertinacity and skill that have brought us to this stage, and it is right that we should take this opportunity of giving him the credit which is due to him.
§ 3.30 p.m.
§ Mr. A. J. Irvine
I should like to join in the congratulations to my hon. Friend the Member for Birmingham, Stechford (Mr. Roy Jenkins) for the very distinguished services he has rendered in bringing forward this Measure. I came in on the proceedings at a rather late stage, but it has been enjoyable and interesting to read the proceedings of the Standing Committee, which confirm how much valuable work was done there.
The Bill has offered a most admirable example of what can be achieved by cooperation between an hon. Member and his colleagues and the Government on a Private Member's Bill. It provides a very good example of the excellent results that can flow from such association. I only wish that there could have been equivalent governmental assistance on a Bill which I promoted, the Exchange of Dwellings Bill.
I am sure that my hon. Friend will be recognised as a benefactor at the Temple, among other quarters, and among all those who practise the law, because for a considerable time there has been a great deal of obscurity and difficulty in this branch of the law. The Bill will do a great deal to clear up difficulties which have existed, and in that respect no one will feel more indebted to my hon. Friend than lawyers for the services which he has given. It will be recognised that he has fought and worked hard for a long time on this matter. As I have said, I wish to join with the utmost warmth in the observations about what he has done.
§ 3.33 p.m.
§ Mr. Robert Jenkins (Dulwich)
I should like to join in congratulating the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) on getting the Bill as far as this stage. I shall do nothing to prevent the Bill going through, but unfortunately I must bring a note of discord into a debate which has been so pleasant and agreeable and in which everybody, perhaps with the exception of the right hon. Member for South Shields (Mr. Ede), agreed with 851 the Bill generally and differed only in small particulars.
I remain completely unrepentant about my attitude to the Bill. I do so with some diffidence; nevertheless, I do so. I stated what I feel about it in Committee, and I shall not repeat what I said because it would be out of order. However, I consider that the Bill is a retrograde step and will make it more possible for literature of an unpleasant kind to be published in this country.
In Committee, a number of hon. Members, including the hon. Member for Islington, East (Mr. E. Fletcher), mentioned a book which has been referred to, although not by name, by the Solicitor-General this afternoon. None of us wants to give it any further publicity; therefore, I do not propose to give its name just in case the Bill may allow it to be published. The hon. Member for Islington, East thought that this book was a good one and ought to be read because it was full of good literature, but I think that that would be a book to which, but for the Bill, the attention of the police could be directed if published in this country. It is well known that a case concerning that book came before the courts some two years ago, and the person who sold it was heavily fined, with costs. At present the law of the country is, in my opinion, that that rather vicious and rather horrible book—I have read it more than once—is illegal. I pointed out to the hon. Gentleman the Member for Stechford that of this Bill goes through this is the sort of book which will be freely sold in the United Kingdom, when children, girls of 12 and others will be in a position to read it.
This Bill, in my view, is a retrograde step. With great respect, and almost with humility, I offer this contention, that it will prove a boomerang in relation to the law on obscene publications. Whereas I am perfectly certain that the promoters of the Bill believed, when the Bill was originally framed, that it would be for nothing but the good of the people concerned, my own feeling is that it will be a very dangerous weapon in the hands of the pornographers who write books. I think we shall find that people, and particularly the rather bad type of publisher whom we have been discussing today, who wish to make money out 852 of pornography, will have a much easier time. As I said in Committee, certain publishers are falling over backwards to publish books of this kind at the present moment, and without any doubt whatsoever they will be eased in their intention and be incited to go on to take action of this kind by the passing of this Bill.
The trend in this House, since I have had the privilege of being a Member, has always been to strengthen the law relating to crime and other matters of that kind. My right hon. and learned Friend has already mentioned, a moment or two ago, that when the teachers of this country banded together to prevent horror comics from being sold or distributed to children they produced a great deal of evidence to show the harm which those horror comics had done to the children. As a result, an Act was passed which prohibited by certain definitions the sale of comics of that sort. I must say that that was a first-class Act, and it has had an enormously good effect on the minds of the children of this country, and everybody was behind it. Everybody takes an interest in seeing what measures can be adopted to stop juvenile delinquency. Only this week we have been considering the Street Offences Bill. I see the hon. Member for Stepney (Mr. W. Edwards) is here. It was argued that that Bill was to protect young persons and to prevent them from going into that noxious trade.
I shall not detain the House long, but I would just develop this point, to show that I am not, perhaps, the crank which it may have been supposed I was on this matter. It seems to me that the trend of the House and the trend of legislation has been to strengthen those influences which bring to bear decent ideas and decent motives in the minds of children. I believe that as a result of this Bill the opposite will be the case. For the first time since the war, when this Bill gets on to the Statute Book, legislation will be passed which will loosen that stranglehold which society had on these vicious-minded pornographers. I believe that that will happen, and it will be a sad day if it does. Anything that tends to loosen the moral fibre and texture of the country, anything done in that direction by this House, particularly in regard to juveniles, is dangerous and contrary to the interests of the State.
853 There are plenty of decent books that most of us have not read. I am sure that the hon. Gentleman will not mind my quoting what he said to me in private conversation some little time ago. He told me, "It would take fifty or a hundred years for any of us, reading all day, to read all the decent books there are to be read in this country." It would take us a long time, and our minds would be very well filled by the really clean and uplifting books now available. If publishers want to make money out of pornography and are permitted to make even more by this Bill—as I maintain they will—this is a bad Bill. Many decent-minded, clean authors will probably have their places taken, because they are not by any means such great money spinners, by the other type, and we may thereby lose fine books because of the desire to make cash out of pornography such as this Bill might permit.
I started by congratulating the hon. Member for Stetchford on his pursuing this Bill to its conclusion. I congratulate him on his pertinacity and on the way he has conducted this Measure through the Committee stage and through our proceedings today. With great respect to him, I think that it is highly creditable that it has got so far, but, holding my own strong views, it would be wrong if, even at this late stage, I did not say that, because of the effect it will have on large sections of the community, it is a bad Bill.
Some day someone will regret that it was ever passed. This Bill may loosen some of that sense of control, and perhaps weaken that influence for good that this country has always known in its books. It is a retrograde Measure. It takes us downhill. Although it will obviously be passed today and go to another place, I regret it.
§ 3.43 p.m.
§ Mr. Ede
I should not have addressed the House but for the reference made by the hon. Member for Dulwich (Mr. Robert Jenkins) to my intervention in today's debate. My name is on the back of this Bill. I served on the Select Committee which examined two Bills and sat during two Sessions. The point that arose today arose only because of an Amendment put down by the right hon. and learned Gentleman the Solicitor-General, to which Amendments were put down by my hon. Friend. Until I came 854 here today, I had not had an opportunity of considering those Amendments, but I stand by every word that I said.
I think it regrettable that the Solicitor-General's Amendment was not passed as moved. I gave my reasons for that at the time, and I will not labour the point now, but I am a House of Commons man. The only way in which this Bill could now be amended would be by an Amendment in the House of Lords, and that I should very much resent. I want to make that plain. After all, the Amendment was carried here by 40 votes to 28 which, out of a membership of 630, cannot be regarded as an overwhelming expression of public opinion, but it is a better number than their Lordships generally manage to muster when they are sending legislation to us, and I hope they will take that into account.
I dread some of the things mentioned by the hon. Gentleman the Member for Dulwich and I think that there would have been better protection against them if we had made it clear that we are not legislating against profit but against the corruption of youth. no matter whether it is done for financial profit or for the delight some wicked people get out of titillating some of the least desirable passions they can arouse in youth. I am certain that in the end, if the effect of the Bill is as bad as the hon. Member for Dulwich says it will be, the conscience of this country will certainly revolt against it and there will have to be other legislation to amend it.
I join heartily and sincerely in congratulating my hon. Friend the Member for Birmingham, Stechford (Mr. Roy Jenkins) and I hope he will believe that these words have been carefully chosen—on his great Parliamentary triumph. For it is nothing less than a triumph to get this Measure through in any form. Those of us who sat here when his father was in the House are glad to recognise in the hon. Member a worthy son of a father who gave great attention to the duties of this House, and whose early death all those who sat with him regarded as a considerable loss. Therefore, I congratulate my hon. Friend on what he has managed to achieve today.
My hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) strained my credulity almost 855 to the limit when he stood at the Box and declared, not on behalf of his party but on behalf of all the Inns of Court, gratification that legislation should be passed that will reduce the possibilities of litigation. I have heard trade union leaders sometimes make speeches about their motives which I have had to regard with some suspicion, but to ask me to accept that doctrine, even from a learned Member of my own party, is something to which I can never strain either my conscience or my belief.
§ 3.48 p.m.
§ Mr. Eric Fletcher (Islington, East)
Like my right hon. Friend the Member for South Shields (Mr. Ede), I am only provoked to intervene for two minutes because the hon. Gentleman the Member fix Dulwich (Mr. Robert Jenkins) made a reference to myself in his speech. I do not doubt the sincerity with which the hon. Gentleman spoke, but I should not be supporting the Third Reading of this Bill this afternoon if I apprehended, as he did, the dire results which he thought might flow from its passage into law.
Like everybody else who has spoken during this Third Reading debate, I want to pay my tribute to my hon. Friend the Member for Birmingham, Stechford (Mr. Roy Jenkins) on his great ability and perseverance in piloting this Measure through all its stages in this House over a long period of years. There is no doubt that the preponderance of opinion in this country will welcome the Bill because, if it does nothing else, in future it will place the law of obscene libel on a far more satisfactory basis than it has existed in the past. At the moment it is uncertain and capricious, and it produces a diversity of results which nobody can foresee.
I do not believe for a moment that the Bill will produce any ill effects, or that it will have any effect upon juvenile delinquents or potential juvenile delinquents. I do not believe that it will do anything to increase the distribution of pornographic literature. We would all agree that there is far too much pornography in this country today; in fact, it is one of the scandals of our time that much blatant pornography passes with immunity. The Bill will remove the predicament which has hitherto faced serious authors and publishers of serious literature in regard to their doubt 856 whether certain literature, whether by ancient or modern authors, would invite a prosecution.
Whatever else we may think, we would probably all agree upon the great desirability of checking juvenile delinquency. The principle enshrined in the Bill, namely, the liberty of the Press, is of equal importance. It is no part of the function of this House or of Parliament to act as a censor of literature. The hon. Member for Dulwich said, in effect, that he thought the Bill would result in much good, clean and decent literature having a smaller sale. I do not believe that for a moment. But even if that were to be the case, it is not a question for us to judge. Every member of the public must be free to judge for himself what and what not to read. Serious authors, especially of literature which has artistic or other merits, must be free, without any risk of censorship or control, to publish work of that kind. I welcome in particular the new Clause introduced by the Solicitor-General which makes that abundantly clear.
I also welcome the Clause enabling expert evidence to be called. In future, when any publication is challenged, the persons responsible for it—publishers, authors or otherwise—will be able to call as witnesses, as they have not been able to do in the past, independent persons either as literary critics or persons engaged in social welfare to give their opinions on the merits of the publication.
I therefore join with other Members in hoping that the Bill will have as smooth a passage in the other place as it has had here, but that it will be dealt with more quickly.
§ 3.55 p.m.
§ Sir K. Pickthorn
I shall be as quick as I can in making my speech. Everybody seems to have enjoyed this debate very much, and everybody seems to be extremely pleased with everybody else. I gathered from the speech of the hon. Member for Islington, East (Mr. Fletcher) that the preponderant opinion of the country is quite clear that the Bill is a great improvement. The great preponderance of opinion in the country must be quicker on the uptake than the preponderant opinion in this House, because the House has no corporate opinion on this matter at all. The one thing 857 that is quite clear from today's debate —every word of which I have heard—is that this was a most unsuitable exercise for a Private Member's Bill. It has not had a proper discussion in the House.
My other point is that what has been said to be the main improvement in the Bill is not, so far as I can understand, understood by anyone. The hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) was in favour of these experts—and we have now been told that these people may be experts in social service, whatever that is —sometimes because he thought that their evidence might go to upset what would otherwise be prima facie obscene, and sometimes—as he made clear in the same paragraph of his speech—because even if the article were obscene, if the experts thought that it had sufficient literary value it would not be interfered with. That is the deepest thing in the Bill. I have heard not a word about it today. We have not heard a word about it on the Floor of the House either before today. What was the intention of the Bill as introduced on that point I do not know. What is the intention of hon. Members opposite or the Solicitor-General at the moment, I do not know, and if I knew both those things I should not have the least idea what the effect is going to be.
§ Question put and agreed to.
§ Bill accordingly read the Third time and passed.