§ 7.19 p.m.
§ Mr. Roy Jenkins (Birmingham, Stechford)
I beg to move, in page 1, line 15, at the end to insert:(3) Where an article is seized under section 3 of the Obscene Publications Act 1959 (which provides for the seizure of obscene articles kept for publication for gain) and a summons is issued under subsection (3) of that section, if the person summoned or any other person entitled to appear under subsection (4) of that section admits to the court that he has or has had that article or another copy of that article for publication for gain and gives full particulars on oath of the circumstances of his ownership, possession or control of it, the court, if satisfied that the person making the said admission bona fide intends to raise a defence that the said article is not obscene or that its publication is justified as being for the public good under section 4 of the said Act and wishes to have the said issue or issues determined by a jury, shall adjourn the proceedings under section 3 of the said Act and shall direct a charge of having the article (or the said other copy of the article) for publication for gain to be preferred under section 2 of the said Act against the person making the said admission.This Amendment concerns the principle that where a book is proceeded against and the defence wishes to raise the defence of public good involving the calling of expert evidence as to literary merit, it is desirable, if the defence so wishes, that the case should be heard before a jury and not before any single individual. I wish to be brief and I do not think it is necessary for me to go over the arguments for the principle.
In the debate on Second Reading, seven of the nine who spoke, excluding the two speakers from the Government Front Bench, but not the speakers from the Government back benches, expressed themselves as being strongly in favour of such an Amendment being made to the Bill in Committee. In Committee we endeavoured by every possible means to make such an Amendment. We started with one new Clause and two Amendments trying in different ways to achieve this principle. The first suggested that all forfeiture proceedings should be replaced by criminal proceedings, and the right of trial by jury 293 would become automatic in all such cases. The second suggested that in forfeiture proceedings, where a defence gave notice that it wished to deploy the special defence, there should be the right of trial by jury. The third and most restrictive of the three said that the defence could have the right to trial by jury where it indicated that it wished to be prosecuted—in other words, where it took upon itself the additional risk and burden of a criminal prosecution. The fourth method, the Amendment on the Order Paper, was put down when the debate was in progress on the other three and it tried to move still closer to the Government point of view to meet any Government objections.
I am bound to say that it will be within the recollection of those who were on the Standing Committee that the Home Secretary did not give the impression, at any rate to some of us, and I believe not only on this side of the House, that he was striving hard to overcome the difficulty. If there were no objection in principle, he raised one of practice. If there were no objection in practice, he raised one of principle, sometimes displaying great ingenuity in advancing arguments, which we had not heard previously, at a very late stage in the debate.
I do not think that his arguments were found very convincing. But the argument which he eventually raised was that it was in some way humiliating to the prosecuting authority, with all the majesty of the State behind it, that it should be allowed to the defence to have the right in any way to choose what sort of proceedings should be followed. I should not have thought that to put upon somebody the right to opt to be prosecuted and to run all the risks, including the risk of prison, was conferring very excessive liberty of choice upon any individual. But the Home Secretary raised a series of objections. Even so he was able to get his way, not on this Amendment but on the third which I have mentioned, by a majority of only one vote in Standing Committee.
We have put down an Amendment which is still more favourable and still closer to the Government's point of view than that which we voted upon in Standing Committee. If there were any 294 desire by the Government to try to meet the wishes of the House, as expressed by seven of the nine speakers on both sides of the House during Second Reading, the right hon. Gentleman would accept the Amendment, because it endeavours, with great ingenuity of drafting by my hon. and learned Friend the Member for Derby, North (Mr. MacDermot), to get round the point that there should be an obvious option for the defence. It places certain obligations upon the prosecution where the defence makes certain submissions; the prosecution then directs that criminal proceedings should be taken, and one gets around the difficulty of it being in some curious way an affront to our law, a difficulty which the right hon. Gentleman raised when discussing the other Amendments.
We debated the matter at some length in Standing Committee. I hope that, having discussed it in the meantime, the right hon. Gentleman will be able, in a way in which he was not then able, to pay greater regard to the view of the House as expressed on Second Reading, the view of substantial bodies of opinion outside, and the view expressed in leading articles in journals of great repute and as expressed by the chairman of the Society of Authors and a number of distinguished publishers. I hope that he will accept the Amendment, which is the most moderate possible attempt to meet every Government objection and still give the principle which seven out of nine speakers on Second Reading wanted in the Bill.
§ Mr. R. T. Paget (Northampton)
I certainly think that this can be described as a Bill which has gained few friends in the course of the stages which it has been through. Indeed, the more we have heard about it, the more suspicious we have become as to the manner in which it will be used. Censorship is always a dangerous instrument. It is the more dangerous in illiberal hands. I rise to ask some very simple questions, which I asked in Committee and to which no answer has yet emerged.
First, do the Government favour in principle the proposition that the decision as to whether a book should or should not be censored is a matter which should be decided by a jury if those concerned with the publication which 295 the Government wish to censor desire it to be referred to a jury? That is quite a simple question. In principle, ought the question, "Censor or not censor?" be one for a jury or one for the Executive?
Secondly—on a number of occasions they seemed to indicate that they favoured this principle—if that principle is accepted by the Government, have they asked the Parliamentary draftsmen to draft them a suitable Clause to put that principle into operation?
The Government have convinced me that they do not want to leave censorship to a jury. They want themselves to censor. The excuse that it cannot be done is false and transparent. With any will at all, a suitable Clause could be drafted. But I do not believe for one moment that they have ever asked for one.
§ Mr. Ian Gilmour (Norfolk, Central)
I said virtually all that I have to say on this point on Second Reading and in Committee, and I have not changed my view. I do not think that I could have changed it, because, with all respect to my right hon. Friend the Home Secretary, he did not attempt to meet the points which were raised. He merely met the argument by asserting that he wished to stamp out pornography. Whether one agrees with the objective, the argument seems quite irrelevant as to the choice of means whereby anybody who may have published pornography should be brought to book.
It seems to me fundamentally right in our British law that, unless there is good reason to the contrary, a man should be tried by jury. It also seems to me that if we are to have Committee procedure and if the arguments are virtually all one way, then it is not good enough for my right hon. Friend to treat the Committee rather like his Department and to stick to his point of view without giving any argument for it. He is entitled to his point of view but not to stick to it while paying no attention to what is said by anybody in Committee. Unless, therefore, my right hon. and learned Friend the Solicitor-General suddenly produces out of the hat arguments which we certainly have not heard 296 up to now, I remain of the view which I have held throughout these proceedings.
§ 7.30 p.m.
§ Mr. Leo Abse (Pontypool)
I am now waiting to hear new technical reasons why, in this particularly and peculiarly sensitive area of what literature should or should not be published, the matter should not go before a jury. There appear to me to be so many overwhelming reasons why the question of determining whether a book is likely to corrupt or not should be determined by a jury rather than by one man or one woman. If there is one thing to be learned from the whole of the Committee proceedings it is that in a Committee of that character there are an infinite variety of temperaments which react in widely different ways to the subject of pornography.
It is abundantly clear that in the Committee, as in the community, there may be people with the temperament and attitude of Mrs. Grundy and those with the temperament and attitude of Don Juan. Unless we have a subsection of this kind in the Bill it is almost inevitable that the question whether a book is likely to corrupt or not will be determined by a particular group of people, by a magistrate or magistrates who often have been selected quite deliberately not because they enjoy a ribald story or have a Rabelaisian temperament, but precisely because they have a certain rigidity and rectitude which although it may equip them in certain respects to deal with many laws makes them, perhaps, peculiarly unsuitable and unacceptable to deal with the question of what is or is not likely to corrupt.
There must be great differences of view on whether a picture postcard sold on the beach in Barry in South Wales would be likely to corrupt or not between a woman who is a member of a Mothers' Union and a miner who is on his holiday. I am certain that what may be regarded by the one as offensive and disgusting may be regarded by the other as diverting, amusing and witty. There must be room in these matters for wide differences of view founded upon reactions to sex and all that is related to it.
It is, therefore, clearly quite wrong in principle that matters of this kind should be adjudicated upon by anyone 297 other than a jury. If there are people who come before a court passionately believing that what they are publishing is not likely to corrupt and passionately prepared to take the risk of heavy imprisonment to put the matter to the test, they should be able to say that the matter should be adjudicated by their peers, a group of men and women on a jury. There are those who have a high regard for Eros as a symbol of love and sex, and there are those who regard this as one of the most valuable elements of life. They believe that life would be much impoverished without it. There is every nuance inside and outside the House on the question of what disgusts and on what could be a matter of joy.
We find this today in the public furore on whether women should or should not wear topless dresses. It is clear that there is a section of the community who believe that a topless dress is sartorially desirable. It is equally clear that there are many who regard this as outrageous. This has always been so. I do not doubt that when bustles came into existence there were those who deplored that attention should be directed to a woman's buttocks. There was a time, doubtless, when codpieces were in fashion in the Elizabethan age, when there was a good deal of opinion in the country that it was quite wrong that attention should be drawn to the male organ. It will always be so, and there will be the same variety of attitudes towards publications about which those who support this proposed subsection are particularly concerned.
Surely, therefore, at this last moment we should strive to make certain that we do not have a Bill which, without a subsection such as this, gives an infinite amount of power to prurient busybodies, of whom the Home Secretary is a typical example. He is having a rare old time these days. He is cleaning up Soho from week to week and when he has finished with that he will determine what pictures will be seen, what books will be read, and what postcards my constituents should be able to send from seaside resorts. I do not think that somebody like the Home Secretary or a magistrate of his calibre should have the right to determine what should be or should not be read. I do not think that any of us have that right.
298 I have been particularly concerned throughout the proceedings on the Bill that when we have matters of this kind to be considered women, as well as men, should be adjudicating on them, as they would be if they were members of a jury deciding whether something is likely to corrupt or not. In these matters women, apart from people like members of the Mothers' Union, have a much more commonsense point of view. They do not believe nonsense of the kind that people who read books become corrupt and promiscuous. They know very well that there are other reasons for that type of behaviour.
I do not want to become involved in the arguments which we heard in Committee. Some believe that literature influences life. Others believe that art influences life. There are those who, I suppose, would have the Crypt of the House of Commons whitewashed. This is why we had the original iconoclasts of early Christendom, and there have always been people who have been frightened that books or pictures would lead to corruption. These are and were people more frightened of themselves than of the pictures they were seeing or the literature they were reading.
I want to make quite certain that what is read or seen in this country will not be determined except by a group of people one of whom may check the other. Each will check the extravagance of the other. If I were on a jury with the Home Secretary somebody might well reach an opinion which would be quite different from the Home Secretary's view of what constitutes pornography and from mine, but the final opinion would be that of a group of people. It is unhealthy, dictatorial and savours of censorship and is quite alien to the best traditions of this country that this Bill should be without a subsection of the kind that we propose.
§ The Solicitor-General (Sir Peter Rawlinson)
The House is considering an Amendment which is in the same terms, subject to some minor variations, as those of proposals which we discussed in Committee and of a new subsection which was then rejected on a Division. The material difference is that this Amendment provides that the 299 intervener must satisfy the court that he bona fide intends to raise the defence of the public good and bona fide intends to raise the defence that the article is not obscene. On those two points, the onus is, and always must be, irrespective of what defence the accused raises, on the prosecution to prove that the article is obscene.
On the second matter, with regard to the accused satisfying the court that he intends bona fide to raise the defence of public good, it is difficult to see how there could be any substantial challenge to it. Thus the position is not very different from what it was before. Therefore, the House, and certainly those Members who were on the Standing Committee, will not be surprised if I raise the same objections. I appreciate that my hon. Friend the Member for Norfolk, Central (Mr. Ian Gilmour) does not feel that they have any substance. Nevertheless, I propose to raise the same objections as were raised in Committee.
Parliament deliberately fitted this issue, which is the issue of obscene publication, within the framework of the criminal law, and the ordinary principles of the criminal law should apply to this decision, taken deliberately by Parliament, to fit this issue into the framework of the criminal law. It is fundamental that the prosecution should enjoy the discretion of whether or not to prosecute. There is no instance in any other branch of the criminal law of it being mandatory to prosecute.
The effect of the Amendment would be to make it mandatory on the prosecutor to prosecute and it would have the effect of conferring a discretion on the accused. It seems to me that this is based on the misconception that, Parliament having taken that decision, the object of legal proceedings under the 1959 Act is to determine whether a book or article is obscene. The court does not and cannot so decide; the procedures are not apt for making that decision. I accept that, in practice, when there has been an acquittal, no further proceedings will be brought by the police in respect of that publication. But it is not so in the converse case. Because there has been a conviction in respect of publication to a minor it does not necessarily follow 300 that there will be another prosecution if there is publication to an adult.
In 1959, Parliament gave these powers to the prosecuting authority—forfeiture and prosecution.
§ The Solicitor-General
The hon. and learned Gentleman will recollect the terms of the Bill, and the circumstances of publication are relevant on the test of obscenity. What may be an obscene publication to a child may not be an obscene publication to an adult—say, a doctor. But Parliament has given these powers to the prosecuting authority, and they were conceived to achieve objects, admittedly, different in degree and kind, but the one punitive and the other preventative. It is wrong to oblige the prosecutor to use one when in his view the circumstances call for the use of the other.
Line 5 of the Amendment uses the words "another copy of that article", and line 12 uses the words(or the said other copy of the article)".If the Amendment were enacted, the effect would be that the publisher could demand to be prosecuted for having other copies available for sale. To return to the example which I gave, if medical works were seized in Soho, or in a child's toy shop, or wherever it might be, the publisher, under the Amendment, could demand that he be prosecuted in respect of other copies which he has available elsewhere for sale, for instance, to doctors. But what this shows is that forfeiture cannot be tied to litigation concerning the publication of other copies or some copies in other circumstances or to different classes of person.
Serious practical difficulties would flow from the Amendment. There is a practice, which is I think accepted and understood by all hon. Members, which is followed where large volumes of material are seized. They may be in the form of roneo-ed documents which no hon. Member in this Chamber would not describe as utter, sheer filth. They may be in the form of magazines or paper-back books. This material is often very considerable in volume. The practice may be for the 301 prosecution to prosecute in respect of, say, half a dozen of the magazines or volumes and then to apply for forfeiture proceedings in respect of the balance.
It would be conceivable, however—and I think that the House must accept this—that if this alternative were presented to the accused whom it was proposed to prosecute in respect of some of the matter which had been seized, he would have little to lose by seeking prosecution in respect of all and something to gain by complicating the process by demanding I hat every volume seized should be the subject of prosecution. As I have said before, a great deal of money is involved in these matters and there is a great deal of sheltering behind the "front" men who might be expected to sustain or suffer the penalties, while many other people merely acquired the money as a result of the activities.
Secondly, the question of photographs was discussed in Committee. If, say, 500 photographs are seized, the photographer, if this choice is presented to him, may wish to take the opportunity of having each photograph tested by trial by jury. There would not be an indictment with 500 counts, but there might be an indictment with one count which would decide whether the man was guilty in respect of that particular photograph. But if this choice is provided, he has the opportunity, if he wishes and if he believes that the photographs are not obscene, of having proceedings instituted in respect of the other 499 photographs by way of prosecution and trial by jury.
§ The Amendment would cause immense practical difficulties. I urge the House to be practical in this matter and to be forthright in recollecting what the Bill is for and its real purposes. I understand the concern of some people—and I think that they are few in number—about the marginal work which could be described as artistic, a new work. I repeat the assurance which I gave on behalf of the Attorney-General in Standing Committee and which appears in columns 77 and 106 of the OFFICIAL REPORT for Tuesday, 16th June, and Thursday, 18th June, respectively. I appreciate that my hon. Friend the Member for Norfolk, Central referred to it as only a titbit, but if the 302 terms of that assurance are studied they must give relief to those who have previously expressed concern.
§ May I repeat the essence of that assurance? If the prosecuting authority has evidence of a deliberate breach of the law, or of breach of the law and a determination to persist in that breach, it will ordinarily proceed by way of prosecution rather than by forfeiture. In the absence of special circumstances, and if satisfactory evidence of the offence is available, the ordinary policy of the Director of Public Prosecutions will be to proceed against the publisher by way of prosecution: first, where an article has been seized under a warrant from a retailer or printer and the publisher, before the case is brought before the justices under Section 3 of the 1959 Act, indicates his intention to continue publishing whatever the result of forfeiture proceedings; and, secondly, where inquiries are being made about an article which the prosecution considers to be, prima facie, obscene and the publisher indicates his determination to publish, and to continue to publish, in circumstances which would constitute a criminal offence. That is the essence of the assurance which I gave on those two days.
§ Mr. Niall MacDermot (Derby, North)
There is one other point which the Solicitor-General made in Committee, and I should be grateful if he would repeat it and confirm it to the House, that in these circumstances it would be the policy to prosecute the publisher alone and not together with a co-defendant.
§ The Solicitor-General
The hon. and learned Gentleman is right. I repeat that assurance and I repeat that what I said in Committee is the formal assurance that has been given. I believe that that really meets the concern of reasonable men as a statement of prosecuting policy. I have not seen any criticism of it in the three weeks since the assurance was given, and I am sure that reasonable men, genuinely concerned, would have been following those proceedings. I cannot believe that it would not be welcomed. It would meet the genuine concern of those people who have expressed concern upon the marginal case, as I have suggested, of the new work or of the work of artistic merit.
In those circumstances, I commend to the House the rejection of the Amendment.
§ Mr. MacDermot
I should make clear, as I did on Second Reading, that on this side of the House we take the view that the Bill is one that should be the subject of a free vote, and so far as my hon. Friends are concerned it will be a matter for a free vote. We think that it is a matter for regret, and have done throughout, that the Government did not make the whole proceedings on the Bill subject to a free vote of the House, in the same way as was done with the Bill which became the 1959 Act, and which this Bill seeks to amend.
§ The Amendment that we are discussing is yet another attempt that we have made to find a solution to the admittedly difficult problem of how to write into the Bill the right to trial by jury, which so many hon. Members on both sides of the House want to see in the Bill.
§ We feel that the Amendment meets the only objection which, up to now, have been put forward as a reason for rejecting our request to have a provision of this kind in the Bill. That was the objection that it was thought to be contrary to the general principles of our criminal law to give, in effect, the right to a citizen to demand of the State that the State should prosecute him, when the discretion whether or not to prosecute is one which rests with the authorities acting for the State, either the police or the Director of Public Prosecutions.
§ We sought to meet that by providing in this Amendment that, in fact, the instruction to prosecute would come from the court itself, where forfeiture proceedings were commenced, if the defendant could satisfy the court that he genuinely and bona fide wanted to raise this defence, and if he also were prepared, on oath, to admit to the facts and circumstances which would show his possession of the article. In that case the prosecution would be in no difficulty about the basic question of proof so that they could bring criminal proceedings. In those circumstances, the magistrate would then adjourn the forfeiture proceedings and direct a charge to be preferred under the criminal law so that the man would have the right to have the issue determined by a jury.
§ The Solicitor-General has now put forward new arguments against the Amendment. 304 I would seek, very briefly, to answer them. First, he says that Parliament deliberately fitted this issue—I am not quite sure what he meant by "this issue"—within the framework of the criminal law. I did not quite follow that. The forfeiture procedure is not within the criminal law. It is an anomaly, it is something quite exceptional, and there is no parallel for it. A man who has a summons under the forfeiture procedure is not charged with any offence or any crime at all and if the forfeiture order is made against him he has not any criminal conviction. This is not the criminal law. It is a form of civil administrative procedure which enables the authorities to destroy bulk stocks of pornographic literature without any criminal proceedings being brought at all.
§ The right hon. and learned Gentleman said that in 1959 Parliament gave these powers for forfeiture and prosecution to the authorities. We did not do that in 1959. Both those procedures existed before. What we did was to change both of them. We changed the forfeiture proceedings by making it no longer necessary for the police to prove an actual sale so as to get a forfeiture order, and we changed the prosecution proceedings by making a new statutory definition—or not a new definition but a statutory definition—of obscenity and by giving a new defence, namely, the defence of literary and analogous merit under Section 4.
§ So it is not as though something new was done in the creation of these procedures under the 1959 Act. It was modification of the existing procedures. It is quite true that there is no other branch of the law where there is anything analogous to the right to demand to be prosecuted on the part of a person brought before the court. Equally, there is no analogy for the forfeiture procedure. There is no other comparable way in which a person can be brought before the court in order to have an issue of this kind raised and not be subject to the criminal law.
§ Because of that there arises this whole problem of how to secure for him the right to trial by jury, because there is this very anomalous forfeiture procedure where he has not got the right. Very cogent arguments were put forward as 305 to why it was not practicable to use the right to trial by jury within the forfeiture procedure. That is why we have sought to devise a solution which would ensure, in the circumstances that I have described, that the defendant to the forfeiture proceedings could say, "No, rather than forfeiture proceedings I would rather be prosecuted, with all the risks and perils that that entails, in order to have this issue of obscenity or non-obscenity, this issue of literary merit or non-literary merit decided by a jury and not by a magistrate".
§ The other arguments put forward by the Solicitor-General suggested that there would be administrative difficulties in the procedure that we propose. He first of all seized on the phrase "or another copy" in the Amendment. I am not sure that I follow fully his argument, but I understand that as an example he referred to a case that occurred in Liverpool, where a pornographer displayed a medical textbook in the window of his shop, opened at the page illustrating the female genital organs—a well-known case. If forfeiture proceedings were taken in such a case and if our Amendment were passed, the publisher of that medical textbook could say that he demanded to be prosecuted in respect of other copies of the book which he sold to doctors and then show that it was of scientific merit and, therefore, should not be forfeited.
§ I do not know whether the Solicitor-General realises that that defence now exists. It would be open in the forfeiture proceedings for the pornographic bookseller to point out under Section 4 that publication of that work was of scientific merit. We deliberately left out the definite article "the" before the word "publication" in Section 4—I remember, because I moved the Amendment—to make it clear that that defence would be open not only in the circumstances of the particular sale by the defendant who was before the court, but to show that publication of the book to the public in general could be justified as being for the public good. I do not, therefore, see that there is any force in that argument. If, however, there is difficulty about it, it is a minor matter which could easily be dealt with by Amendment of the subsection in another place if the House sees fit to pass it.306
§ 8.0 p.m.
§ The Solicitor-General raised again what I suggest is the bogy of saying that if this procedure was authorised, it could be seized upon and used by pornographers to obstruct the work of the courts and to bring to nought the attempts in the Bill to give greater powers of dealing with bulk pornography. What is suggested is that where forfeiture proceedings were being taken and, say, 500 different titles were seized from a pornographic bookshop or 500 different photographs from a pornographic photographer, the defendant would be able to demand that he should be tried by a jury for every one of those titles or photographs. It is precisely to meet that situation that we have put in the Amendment the requirement that that person must satisfy the magistrate that he bona fide intends to raise that defence.
§ In the situation which the Solicitor-General has posed, is it to be imagined that in the case of a pornographic bookseller of the type with whom the right hon. and learned Gentleman said that he was attempting to deal under the Bill—the Soho bookshop—if 500 trashy publications or 500 obviously pornographic photographs were brought before the court, the magistrate, on the say-so of the defendant, would accept at once that he bona fide wanted to raise this defence under Section 4? I cannot imagine it. There is enough common sense among magistrates not to allow the administration of the law to be frustrated in that way. That is the safeguard which we have included. It is perfectly adequate to meet the point.
§ I cannot imagine that there is any real difference between the two sides of the House as to object. There cannot be any objection by the Government to the object which our Amendment tries to achieve. I say that with confidence, because the Solicitor-General has kindly repeated the assurance which he gave in Committee about not only the way in which the Government propose to administer the Bill, but the way they construe it.
§ The Solicitor-General
I should like to make clear, as the hon. and learned Member will appreciate, that it is not the Government who give this assurance. It is given on behalf of the Attorney-General with his duties in respect of prosecution.
§ Mr. MacDermot
I am grateful to the right hon. and learned Gentleman for correcting me. It is, of course, an assurance given not by the Government, but by the Attorney-General. We are appreciative of the co-operation which we have had from the Law Officers in this matter. I concede that they genuinely wish to help us to achieve our object.
The assurance which has been given us certainly carries the matter a considerable way, but it cannot of necessity go all the way, because the power to prosecute in this matter does not rest alone with the public authorities. Any private individual can prosecute. We know that private individuals do not do so, but with the growing enthusiasm which there seems to be on the subject there is no reason why private individuals or societies should not take it upon themselves to initiate prosecutions. If they did, there would be no kind of safeguard that the policy which was being enunciated on behalf of the Attorney-General would be followed, in particular the assurance which we have just received that the publisher of such a work would be prosecuted alone and not have to seek to defend the literary merits of his work against the background of a pornographic bookseller.
For these reasons, I know that many of my hon. Friends feel strongly that this is a matter which should be written into the Bill. We do not say that the Amendment cannot be improved—that is something which could be done in another place—but I hope that the House will support us in asking that the Amendment be passed.
§ Mr. Michael Foot (Ebbw Vale)
It is clear that the Government are adamant in rejecting the proposition that this side of the House and others have put forward on this matter. I certainly will not delay the House for more than a minute or so. It is no good at this stage trying to repeat the arguments, even though the Solicitor-General has been as good as his word and repeated the arguments which he put to us before.
I cannot, however, agree with my hon. and learned Friend the Member for Derby, North (Mr. MacDermot) that the Government agree with us on the principle about this matter. The Government have not made the slightest effort to accommodate the House on this matter. That is proved by the persistent 308 failure of the Home Secretary and of the Solicitor-General to answer the questions put by my hon. and learned Friend the Member for Northampton (Mr. Paget).
My hon. and learned Friend asked the Government, first, whether they agreed with the principle which we are enunciating and, then, whether they had asked the Government draftsman to draft an Amendment which would incorporate the principle. My hon. and learned Friend and others put that question to the Government time and again in Committee. It has been put here again this evening. Not the slightest effort has been made to answer it. All we have been told is that we should trust the undertaking given, not on behalf of the Government, but on behalf of the Attorney-General.
If the right hon. and learned Gentleman looks at his own undertaking, he will see that it is hedged around with many qualifications. Even so, one of the further reasons why it is impossible for us to accept that assurance as a substitute for our Amendment is that the atmosphere in which prosecutions may be taken against the so-called marginal cases to which the right hon. and learned Gentleman has referred will be altered by the Bill, because it condones the procedure that was operated in the "Fanny Hill" case. That means that the whole attitude of publishers in what they publish will be tightened up.
The Government have given not the slightest indication throughout the whole of our discussions, either in the speeches of the Solicitor-General or, less still, in those of the Home Secretary, that they care a fig for this. They are not worried about it. They have not made the slightest effort to try to devise a legal procedure to ensure that reputable publishers publishing material which today may be condemned but which tomorrow will be acclaimed should be protected. The Government have not made the slightest effort to do it. Therefore, we should not pay them compliments.
I am glad that my hon. and learned Friend the Member for Derby, North is pressing the matter to a Division. What the Government are saying to the country, to the publishing world, authors and anyone concerned with literature is that after the House of Commons has examined the whole question in the 309 utmost detail, it is impossible for them to devise any procedure whereby the protection of trial by jury shall be provided for reputable authors and publishers. I hope, therefore, that we will not have any nonsense about the Government being in favour of liberty and freedom, wishing to protect the right to print or anything of that sort.
When any practical question comes before the House, the whole influence of the Government, and in particular of the Home Secretary, is thrown against freedom. The Government have gone through the charade of pretending that they want to listen to what both sides of the House want to say, but they have not made the slightest effort to make any valuable concession to us in this matter.
I do not believe that the Attorney-General's assurance is worth very much in view of the general background of the BUI. Therefore, instead of being fobbed off with a pretence that the Government have assisted us, hon. Members should recognise that the Government, who set out to introduce the Bill, never had any intention at the beginning of caring about literary freedom and have shown throughout the whole proceedings that they have not in any way shifted on that point.
§ Mrs. Eveline Hill (Manchester, Wythen shawe)
We have listened to some earnest pleas today on this subject, as we did in Standing Committee, but I believe that the general public will be very much in agreement with the Home Secretary and the Solicitor-General over this matter.
I have had numerous letters on the subject from parents, teachers and social workers, all begging that the Home Secretary should stand firm and pursue the Bill as it is written, because they believe that the mass of pornographic literature which is flooding the market, and which can so easily be acquired by young people, is of no use whatever to this country.
It was suggested by the hon. Member for Pontypool (Mr. Abse) that women magistrates might take a broader view. As a woman magistrate, I can assure him that women will study the matter very carefully and will take a very sane and sensible view about some of the stuff that is published. I sincerely hope that the Home Secretary will stand firm on the matter.
§ Question put, That those words be there inserted in the Bill:—
§ The House divided: Ayes 81, Noes 124.311
|Division No. 129.]||AYES||[8.13 p.m.|
|Abse, Leo||Griffiths, David (Rother Valley)||Millan, Bruce|
|Alldritt, W. H.||Hamilton, William (West Fife)||Milne, Edward|
|Allaun, Frank (Salford, E.)||Hannan, William||Mitchison, G. R.|
|Awbery, Stan (Bristol, Central)||Harper, Joseph||Oliver, G. H.|
|Bacon, Miss Alice||Hart, Mrs. Judith||O'Malley, B. K.|
|Baxter, William (Stirlingshire, W.)||Hayman, F. H.||Paget, R. T.|
|Beaney, Alan||Herbison, Miss Margaret||Parker, John|
|Bence, Cyril||Holt, Arthur||Pentland, Norman|
|Berkeley, Humphry||Howell, Charles A. (Perry Barr)||Popplewell, Ernest|
|Blackburn, F.||Hoy, James H.||Short, Edward|
|Boardman, H.||Hughes, Cledwyn (Anglesey)||Slater, Mrs. Harriet (Stoke, N.)|
|Bowen, Roderic (Cardigan)||Hughes, Hector (Aberdeen, N.)||Smith, Ellis (Stoke, S.)|
|Braddock, Mrs. E. M.||Hunter, A. E.||Sorensen, R. W.|
|Brockway, A. Fenner||Jones, Dan (Burnley)||Soskice, Rt. Hon. Sir Frank|
|Cliffe, Michael||Jones, Elwyn (West Ham, S.)||Spriggs, Leslie|
|Craddock, George (Bradford, S.)||King, Dr. Horace||Swingler, Stephen|
|Cullen, Mrs. Alice||Lawson, George||Symonds, J. B.|
|Davies, Harold (Leek)||Lee, Frederick (Newton)||Thornton, Ernest|
|Davies, Ifor (Gower)||Lipton, Marcus||Wainwright, Edwin|
|Davies, S. O. (Merthyr)||Loughlin, Charles||Watkins, Tudor|
|Doig, Peter||Lubbock, Eric||Whitlock, William|
|Driberg, Tom||McCarm, J.||Wilkins, W. A.|
|Duffy, A. E. P. (Colne Valley)||MacDermot, Niall||Williams, LI. (Abertillery)|
|Ede, Rt. Hon. C.||McInnes, James||Winterbottom, R. E.|
|Edwards, Rt. Hon. Ness (Caerphilly)||McKay, John (Wallsend)||Yates, Victor (Ladywood)|
|Fernyhough, E.||Mackie, John (Enfield, East)|
|Gilmour, Ian (Norfolk, Central)||Manuel, Archie||TELLERS FOR THE AYES:|
|Gordon Walker, Rt. Hon. P. C.||Marsh, Richard||Mr. Michael Foot and|
|Mr. Roy Jenkins.|
|Allason, James||Barlow, Sir John||Bevins, Rt. Hon, Reginald|
|Anderson, D. C.||Batsford, Brian||Bishop, Sir Patrick|
|Ashton, Sir Hubert||Beamish, Col. Sir Tufton||Black, Sir Cyril|
|Bossom, Hon. Clive||Hughes-Young, Michael||Robson Brown, Sir William|
|Bourne-Arton, A.||Hutchison, Michael Clark||Roots, William|
|Boyle, Rt. Hon. Sir Edward||lrvine, Bryant Godman (Rye)||Russell, Sir Ronald|
|Brooke, Rt. Hon. Henry||Jennings, J. C.||Sharples, Richard|
|Carr, Compton (Barons Court)||Johnson, Eric (Blackley)||Shaw, M.|
|Carr, Rt. Hon. Robert (Mitcham)||Jones, Arthur (Northerns, S.)||Shepherd, William|
|Chataway, Christopher||Kerans, Cdr. J. S.||Skeet, T. H. H.|
|Clark, Henry (Antrim, N.)||Kirk, Peter||Smith, Dudley (Br'ntf'd & Chiswick)|
|Cooke, Robert||Lagden, Godfrey||Stainton, Keith|
|Coulson, Michael||Lambton, Viscount||Steward, Harold (Stockport, S.)|
|Craddock, Sir Beresford (Spelthorne)||Legge-Bourke, Sir Harry||Storey, Sir Samuel|
|Crawley, Aldan||Lilley, F. J. P.||Studholme, Sir Henry|
|Currie, G. B. H.||Linstead, Sir Hugh||Summers, Sir Spencer|
|Dalkeith, Earl of||Longden, Gilbert||Taylor, Edwin (Bolton, E.)|
|Dance, James||Lucas-Tooth, Sir Hugh||Taylor, Frank (M'ch'st'r, Moss Side)|
|d'Avidor-Goldsmid, Sir Henry||MacArthur, lan||Thompson, Sir Kenneth (Walton)|
|Deedes, Rt. Hon. W. F.||McMaster, Stanley R.||Thompson, Sir Richard (Croydon, S.)|
|Donaldson, Cmdr. C. E. M.||Maitland, Sir John||Thornton-Kemsley, Sir Colin|
|Doughty, Charles||Marten, Neil||Tilney, John (Wavertree)|
|Farr, John||Mathew, Robert (Honiton)||Touche, Rt. Hon. Sir Gordon|
|Finlay, Graeme||Matthews, Cordon (Meriden)||Turner, Colin|
|Fisher, Nigel||Maude, Angus (Stratford-on-Avon)||Turton, Rt. Hon. R. H.|
|Fletcher-Cooke, Charles||Mawby, Ray||Tweedsmuir, Lady|
|Foster, Sir John||More, Jasper (Ludlow)||van Straubenzee, W. R.|
|Gower, Raymond||Oakshott, Sir Hendrie||Walker, Peter|
|Green, Alan||Osborn, John (Hallam)||Ward, Dame Irene|
|Gresham Cooke, R.||Page, John (Harrow, West)||Wells, John (Maidstone)|
|Grosvenor, Lord Robert||Partridge, E.||Williams, Paul (Sunderland, S.)|
|Gurden, Harold||Pearson, Frank (Clitheroe)||Wills, Sir Cerald (Bridgwater)|
|Hall, John (Wycombe)||Peel, John||Wilson, Geoffrey (Truro)|
|Hamilton, Michael (Wellingborough)||Pike, Miss Mervyn||Wolrige-Gordon, Patrick|
|Harvie Anderson, Miss||Pitman, Sir James||Woodhouse, Hon. Christopher|
|Hendry, Forbes||Pitt, Dame Edith||Woodnutt, Mark|
|Hiley, Joseph||Pounder, Rafton||Woollam, John|
|Hill, Mrs. Eveline (Wythenshawe)||Proudfoot, Wilfred||Worsley, Marcus|
|Hirst, Geoffrey||Pym, Francis|
|Hobson, Rt. Hon. Sir John||Rawlinson, Rt. Hon. Sir Peter||TELLERS FOR THE NOES:|
|Holland, Philip||Redmayne, Rt. Hon. Martin||Mr. McLaren and|
|Hornsby-Smith, Rt, Hon. Dame P.||Rees, Hugh (Swansea, W.)||Mr. R. W. Elliott.|
|Hughes Hallett, Vice-Admiral John||Ridley, Hon. Nicholas|
§ Mr. MacDermot
I beg to move, in page 1, line 15, at the end to insert:(3) A person who has or has had an obscene article for publication for gain shall not be proceeded against for an offence at common law relating to that article where it is the essence of the offence that the matter is obscene:Provided that this subsection shall not apply to proceedings for conspiracy to commit an offence against section 2 of the said Act.This Amendment deals with a question originally raised by the hon. Member for the Isle of Thanet (Mr. Rees-Davies) on Second Reading but not dealt with in Committee. When the statutory offence of publishing an obscene article was created by the 1959 Act, the question arose of whether or not we should abolish the previous common law offence. It was decided not to do so, with the result that those forms of obscenity which were not covered by the definition Section of the 1959 Act could still be dealt with at common law.
But it was, as I recall, clearly our intention that anything which could be dealt with under the 1959 Act should be dealt with under it so as to make the new Section 4 defence available. For that reason it was provided by Section 2(4) as follows: 312A person publishing an article shall not be proceeded against for an offence at common law consisting of the publication of any matter contained or embodied in the article where it is of the essence of the offence that the matter is obscene.This was a provision which sought to give effect to the intention I have referred to. But, after the Act was passed, a case came before the courts when a defendant was charged with the common law offence of conspiracy to commit an offence against Section 2 of the 1959 Act—with conspiring to publish an obscene article.
It was said on behalf of the defendant that the charge should not lie because it contravened the provision of the 1959 Act that I have quoted. The court rejected the argument because, quite rightly, it said that, in a conspiracy to publish, publication of the matter is not of the essence of the offence because the common law offence of conspiracy consists, in essence, of agreement to do the unlawful and it matters not whether the unlawful act is every carried out or completed. Therefore, completion is not of the essence of the offence.
Some people were disturbed by this decision. I would not quarrel with it. 313 however. It is sometimes necessary to promote a charge for conspiracy in order to bring evildoers to justice. It does raise, however, the subsidiary question—which we did discuss in Committee—as to whether Section 4 defence and rights are available in a case of that kind where the charge is one of conspiracy.
There are, however, a number of other ancient common law offences under which a person could be charged instead of being charged under the 1959 Act. One example was referred to on Second Reading—the offence of conspiracy to corrupt public morals. After the "Ladies Directory" case, an assurance was given by the Lord Chancellor, repeated by the Attorney-General and then repeated again on Second Reading of the Act by the Solicitor-General, that no person would be prosecuted for that offence so as to circumvent his right to raise a defence under Section 4 of the Act. But, of course, that assurance—and I repeat the comment I made on the last Amendment—does not and cannot bind a private prosecutor, and the fact remains that, in the "Ladies Directory" case itself, a person was charged with that offence when the subject matter of the prosecution was of obscene publication within the 1959 Act. Indeed, he was also charged with an offence under the 1959 Act.
On this occasion I tender an apology to the hon. Member for the Isle of Thanet. In a hasty intervention in his speech on Second Reading, I suggested that he was wrong on this point. I accepted his invitation to look up the case and I found that he was plainly right and I was wrong.
I understand that there are other offences at common law which could be preferred, but I do not want to weary the House by going into them now. I was assured by a barrister friend whose responsibility it is to advise on these prosecutions that he had himself in one instance not long ago advised the Director of Public Prosecutions that such a charge could be brought but should not be brought under the 1959 Act for an ancient common law offence. I was glad to hear that the Director also took the view that it was undesirable to do that as it might be thought to be trying 314 to obviate the defence under the 1959 Act.
That, I suggest, showed a healthy and proper attitude on the part of the Director of Public Prosecutions but it reinforces my point that these possibilities are open and would be open to private prosecutors. Our Amendment is designed to ensure that, where a person has or has had an obscene article in his possession for gain, then he must be prosecuted for the new offence or for conspiracy to commit an offence against Section 2—that would in effect be conspiracy to publish an obscene article—but that he could not be prosecuted for any other common law offence.
I hope that the Government will be able to accept the Amendment, which does not run contrary to any declared Government policy that I know of or to the practice of the Director of Public Prosecutions. It merely would ensure that the same standards as are being applied by the authorities would also have to be applied by any private prosecutor.
§ 8.30 p.m.
§ The Solicitor-General
The object of the Amendment is to make it impossible to charge an agreement to publish an obscene article as an offence against common law, and in particular as a conspiracy to corrupt public morals. There are minor drafting defects in the Amendment in that it applies only to persons who have or have had articles for publication for gain. It would not cover conspirators who had never had articles in their possession or control.
The hon. and learned Member for Derby, North (Mr. MacDermot) has raised a position which was brought to the fore by the decision in the case of Shaw v. the Director of Public Prosecutions, a case decided in the House of Lords. It is quite clear from that decision, which admittedly takes some study, that an agreement to publish an obscene article cannot be charged as a conspiracy to corrupt public morals. I remind the House of the facts in a little more detail.
The accused in that case published an illustrated booklet which set out the names and addresses and telephone numbers of certain prostitutes and of some of their particular practices. The 315 advertisements in the booklet were paid for by the prostitutes and the accused derived a profit from the publication which he was making. It was his avowed intention and purpose to assist prostitutes to ply their trade which, following the Street Offences Act, 1959, had ceased to be plied on the streets.
In his judgment, Lord Simonds said that there was in the court a residual power with respect to common law offences where no Statute had yet intervened. In fact, Statute has intervened in respect of the publication of an obscene article, and it has intervened by the Obscene Publications Act, 1959. Shaw's offence was to publish a booklet whose avowed purpose was to provide the names and addresses and practices of prostitutes to whom men could then resort. That is very different from the publication of an obscene book, because the intention or purpose in the first of those offences is to incite persons to resort to prostitutes.
The form of the incitement was a publication which provided detailed information. The incitement took the form of an obscene publication, and Shaw was convicted of that under the Obscene Publications Act, but the corruption of public morals was the incitement to resort to prostitutes and indictable as such, quite irrespective of the form of the incitement. The examples which were given by the learned law Lords of conspiracies to corrupt public morals were all cases of inciting persons to do something which was not unlawful but which might be said to be immoral, such as inciting persons to commit acts of lesbianism or, before 1907, to commit incestuous acts, or inciting persons, if the Wolfenden proposals were enacted into law, to commit homosexual acts.
But where there is not an incitment but merely an agreement to publish an obscene publication, an obscene libel which would be covered by the 1959 Act, Statute would have intervened, as Lord Simonds said, and the Statute law in that case is the 1959 Obscene Publications Act, carrying with it the statutory defences which would apply. This is the clear result of a proper examination of the Shaw case.
It was that which led the former Attorney-General, now the Lord Chancellor, 316 and the present Attorney-General and, I would forecast, any successor, to give the assurance that no proceedings would be brought for a common law offence so as to attempt to evade the statutory defence of public good which is set out in the 1959 Act. It is based on an understanding of the law and not, as it were, on a statement of prosecuting policy.
Likewise, there would be no fear of an attempt by a private prosecutor. If he were to attempt any such prosecution, he too, would fail. Moreover, in practice there are or appear to be no private prosecutions. They are always brought by or on the advice of the Director of Public Prosecutions.
In these circumstances, on a true understanding of the law there is no need for the Amendment and I suggest that the House rejects it.
§ Amendment negatived.
§ Mr. MacDermot
I beg to move, in page 2, line 4, at the end to insert:(4) Where a person who has or has had an obscene article for publication for gain is proceeded against for an offence, whether at common law or under any statute, relating to that article, and the question whether that article is obscene is a relevant issue in those proceedings, that person shall not be convicted of that offence if he proves 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, and it is hereby declared that the opinion of experts as to the literary, artistic, scientific or other merits of the article may be admitted in any such proceedings either to establish or negative the said ground.The object of the Amendment is to extend the Section 4 defence of public good under the 1959 Act to offences other than those charged under that Act where it is a necessary part of the prosecution case to show that the article in question is obscene. As the Amendment is drafted it applies only to cases where a defendant has or has had an obscene article for publication for gain. I should have been happy to omit those words, but I suspected that if I did you would be unable, under the rules of order, Mr. Deputy-Speaker, to call the Amendment. That is why the words find themselves there. There are some points, which I hope the House will find interesting, which should be considered under the Amendment.
317 The first class of case which could be affected by the Amendment is that of conspiracy to commit an offence against Section 2 of the 1959 Act. This raises a point that I touched on a moment ago, and which we discussed in Committee, when the right hon. and learned Solicitor-General kindly said that he would consider it further. It is the question whether, in particular, Section 4(2) of the 1959 Act applies where proceedings are taken for a conspiracy to commit an offence against Section 2.
What that means in layman's language is that it was provided under the 1959 Act that not only was there this defence of public good, but where a person raised the defence it was declared that he was entitled to call experts as to the literary, artistic, scientific or other merits of an article, and to establish that defence, and, further, that the prosecution had the right to call similar experts in rebuttal to negative the defence. Many of us thought at the time—and it has been widely felt by the general public—that this was an important feature of the 1959 Act.
As that Act is worded, it is declared that evidence can be called in any proceedingsunder this Act either to establish or to negative the said ground.I have very real doubts whether, if proceedings were brought for a conspiracy to commit an offence under the 1959 Act and the defendant sought to call expert evidence, he would not be met by the decision of the courts that he was not entitled to the protection of this subsection because the proceedings were being brought not under the Act but at common law for conspiracy. That is the point that I asked the Solicitor-General to be good enough to consider. That point would be covered if the Amendment were accepted.
The second class of case which could be affected is that where proceedings are brought under Section 11 of the Post Office Act, 1953. It is curious how much that Section has been ignored in all the consideration and discussion of this subject that has gone on. It was overlooked by the Select Committee. It was touched on in the written memorandum put in by the Customs authorities to the Select Committee, but there was no memorandum from the Postmaster-General; no evidence was given on behalf of the 318 Postmaster-General, no witnesses spoke to this Section, and no witnesses were asked any questions about it.
The Section provides that it is an offence to send through the post an indecent or obscene article. There is no definition either of indecency or obscenity. I believe that there is some judicial authority to indicate that the two words are probably synonymous. As they are not defined, it means that the test of obscenity laid down under the 1959 Act in relation to obscene publications does not apply in respect of Section 11 of the Post Office Act. It is open to the courts to give a much wider and different construction to the word.
Secondly, and perhaps much more important, the defence of literary merit does not apply, or the defence of public good does not apply at all to proceedings under the Post Office Act. Consequently, it may be that a person who is prosecuted under the 1959 Act for publishing an obscene article, and who successfully raises a defence either that the article in question was not obscene or that its publication could be justified as being for the public good, might find himself prosecuted under the Post Office Act for sending the identically same article through the post. He certainly would not be able to raise the Section 4 defence and he might find, with the different test of obscenity applied, that he would have committed an offence against Section 11.
This appears to me an unsatisfactory state of affairs and one which has arisen, as so often these things do, purely by oversight and neglect. There was no conscious decision on the part of anyone. I have refreshed my memory by reading through all our debates on the 1959 Act and I cannot see that anybody discussed or touched on this question. I should be grateful to hear from the Government what are their views on this point.
Thirdly, the Amendment could apply in respect of any of the other common law offences to which I referred during the discussion on the last Amendment. It could be brought by a private prosecutor in relation to an allegedly obscene article. I must admit at once that there may be technical objections to the form of this Amendment. I have been in some difficulty in framing an Amendment 319 which would be within the rules of order and enable us to raise the point. If the Government think that there is substance in these points, no doubt they will find ways in another place to put down Amendments to meet it.
§ The Solicitor-General
The hon. and learned Member for Derby, North (Mr. MacDermot) is correct, as far as my researches go, and I agree with him that the Post Office witnesses did not give any evidence before the Select Committee, though the matter was touched on, I am told, by the Customs witnesses in the evidence which they gave. The Post Office Act of 1953, the consolidating Measure, applies, as the House will recollect, to many places to which the 1959 Act did not apply. The Post Office Act was the prior Act and applies to Scotland and to Northern Ireland, to the Channel Islands and the Isle of Man.
The 1959 Obscene Publications Act was described as the child of this Select Committee. It applied a new definition of obscenity and provided a special defence. That was applied only to the law of England and Wales. The principal Act did not extend, or seek to extend, to anything beyond the law of England and Wales. This Bill, which is intended to strengthen the 1959 Act, obviously would not be appropriate to extend a special defence to the Post Office offence which, in the 1959 Act, Parliament left as it was, extending over Scotland, Northern Ireland and the Channel Islands. The 1959 Act did not do it and, of course, it would not be right to do it by this Measure.
The main question raised by this Amendment—which, the hon. and learned Member frankly said, reveals technical weaknesses with which I am not trying to deal—is: is the special defence which is provided available to a charge of conspiracy under Section 2 of the 1959 Act? My reply is that it is. We had some discussion about this in Committee. I think that it was generally agreed that when one looked to other statutes where, in the criminal law, special defences are provided if a conspiracy was charged, in those circumstances the special defence would be available and there would not be a necessity to write into those Measures, 320 as there is not to write into this Bill, the provision that the defence is available.
Hon. and learned Gentlemen went further than that and asked me to consider in particular Section 4(2), which was the declaratory Section in relation to the evidence of experts. This was something I expressed a view on at the time, but I undertook to the Committee to consider it carefully in view of all that has been said. Section 4(2) is clearly from its wording declaratory because it starts with the words, "It is hereby declared." It is, therefore, in that form unnecessary. It was not a necessary adjunct to Section 4(1) which is the provision of the special defence.
If it is a defence to prove that the publication of an article is justified for the public good because, for instance, it is in the interests of science, it must as a matter of law be open to any accused person to call evidence in support of that defence. I think science and artistic merit are matters where evidence of experts has always been admissible. There were many famous cases in which, hon. and learned Gentlemen will recollect, long before this legislation evidence of such matters was given.
The advice given by my predecessor to the House and to the Committee in 1959 was very emphatic, that this was only declaratory and set out only to declare that this evidence should be and could be heard. The advice he then gave to the House was that it was unnecessary. He argued, and I repeat the argument, that the expert evidence is available when the defence is pleaded to an offence under the Act. A fortiori, it must be available when there is a charge of conspiracy. I suggest that it would be obvious that no court would refuse evidence on a conspiracy charge which it would admit on a substantive charge because of the words in the Act.
I have given close examination to the point raised by the hon. and learned Member for Derby, North and the hon. and learned Member for Northampton (Mr. Paget), but the advice I give the House is that as these words are clearly only declaratory it is not necessary to write them into the Bill. The hon. and learned Member for Derby, North frankly admitted that there are defects 321 in the Amendment, but it is on the substance of the advice I give to the House that I recommend that this is unnecessary and need not be written into the Bill.
§ Mr. Roy Jenkins
As I understand it, the general point made by the right hon. and learned Solicitor-General is that these words were unnecessary in the 1959 Act and would be equally, but no more, unnecessary in this Measure. In the negotiations and discussions leading up to the Act of 1959, the insertion of those words was regarded by the sponsors of the Measure, and by the majority of the Select Committee, to be of importance. The Government spokesmen of the day both took the view that the words were unnecessary; we took the view that if they were unnecessary they could do no harm but that, as expert evidence had been rejected on a number of occasions in the past, it was safer to have the matter written into the Bill. I must say that in view of the experience one has had in various ways since then, I am glad that it was written into the Bill, and not left merely to stand upon assurances.
It was a point to which great attention was paid. It was one of the two outstanding points in the negotiations between the sponsors of the Bill, and the then Attorney-General, who is now the Lord Chancellor. Great importance was attached to it by the sponsors of the Bill, and Parliament eventually accepted it. We have heard a great deal from the right hon. and learned Solicitor-General on other occasions mat Parliament in its wisdom wrote in or did not write this into the Act of 1959. I always find that mat cloaks the absence of any real argument on any number of occasions from the Government Front Bench, but if it is valid when it suits the Government, it must also be valid when it does not suit the Government.
Parliament thought it right to put this declaration into the Act of 1959. Parliament was not satisfied with that Measure, whatever the Law Officers of the day may have said. That being so, it is highly undesirable to create an anomalous situation in which it is in one provision but in the other provision it is left to stand on the assumption that if a defence of public good exists, expert evidence must be admissible—
§ The Solicitor-General
The hon. Gentleman will recollect that I was arguing that just as there is this defence to the substantive charge then, in my submission, there would certainly be this defence where there is a charge of conspiracy, and that, therefore, it is unnecessary to have either subsections (1) or (2) of Section 4 written into this Bill.
§ Mr. Jenkins
But as I understand it, because the then Solicitor-General said that it was unnecessary to have it in the Act of 1959—
§ The Solicitor-General
It was a view expressed then, and it is only a declaratory subsection. The whole of Section 4 is really contained, as I suggested to the Committee, in subsection (1), and subsection (2) is the declaratory part. In Committee, I undertook to look at this again, because I think that it was agreed that where there was conspiracy there would necessarily be that defence provided, when there would then be available this means of establishing such defence. I suggest that it is unnecessary to write this into the Bill, because where there is that right to set up that defence there must be the means of setting it up.
§ Mr. Jenkins
That is exactly the argument that was put then to the Committee, and later to the House, by the then Solicitor-General and the then Attorney-General in 1959 and the House was not satisfied with it. Parliament thought it necessary in 1959 to write in the declaration, and I suggest that Parliament would be equally wise to do so today.
The right hon. and learned Solicitor-General is not arguing that the right to call this evidence stems from the declaration put into the Act of 1959. He is arguing that the right to call this evidence necessarily stems from the right to the defence of the public good. In 1959 the view was not taken by the sponsors of the Bill or by the majority of the House that that was sufficient. It was a great point of argument, and I was extremely glad that we had stuck to our position.
What the right hon. and learned Gentleman is now doing is to go back to the position taken up by his predecessors, but not accepted by the House 323 in 1959. As I say, as he has constantly put before us the point that Parliament in its wisdom said this in 1959, he should accept the point now that it would be far safer and more satisfactory to make the declaration here, just as it was thought necessary to make it in 1959.
§ Mr. Paget
The Solicitor-General's argument falls into three parts. His first argument is that, where there is a statutory defence to a crime created by Statute, that statutory defence is incorporated into the charge, if it is brought under conspiracy. With that part of his argument I agree. To take bigamy as an example, the Statute has made the offence of bigamy not merely to marry a second time during the lifetime of the first wife or husband, as the case may be, but to marry in the lifetime of the previous spouse within seven years of last knowing him or her to be alive.
I think that that is incorporated and becomes part of the offence; so that a conspiracy, to be established, would have to be a conspiracy to do that which is forbidden by the Statute, and what is forbidden by the Statute is the act without the circumstances which constitute a defence. Therefore, as to that I find myself in agreement with the right hon. and learned Gentleman.
The right hon. and learned Gentleman's position on evidence is quite different. The position with regard to evidence is that the Statute specifically says:In … proceedings under this Section".What the Solicitor-General is saying is not that the 1959 Act would make expert evidence available in charges at common law under conspiracy. What he is saying is that the 1959 Act was wrong, that the declaratory Section in it was quite unnecessary, and that this expert evidence would be available anyhow. In a word, in so far as the evidence provision applies as to proceedings at common law, the Solicitor-General's case is based, and is based solely, upon the proposition that the House was wrong in 1959 when it considered it necessary to make this declaration.
I do not think that the House was wrong to make this declaration in 1959. A number of courts had rejected expert 324 evidence upon this very issue. They may have been right. They may have been wrong. The function of the House is not to promote litigation. When a matter is in doubt, our job is to resolve that doubt, if we can. That doubt was resolved in the cases covered by the 1959 Act. The 1959 Act, in so far as it applies to evidence, does not resolve the doubt in conspiracy cases. Therefore, for precisely the same reason as this declaration Section was put in the 1959 Act for offences under that Act, we should now apply it to cases based in conspiracy to commit an offence against that Act.
The third point deals with the Post Office Act case, in which the definition is "obscene" or "indecent", without any of the limitations written into the 1959 Act. To return to my analogy with bigamy, under the Post Office Act his offence is marrying a second wife during the first wife's lifetime. The offence under the 1959 Act, by analogy, is marrying during the first spouse's life, having known her to be alive during the previous seven years. In other words, the offence under the Post Office Act is a different offence. Surely that is wrong? We do not wish to use the Post Office Act to get round the 1959 Act and avoid the 1959 Act defences.
From my understanding of the argument of the Solicitor-General, he did not really question that. His sole argument, as I understood it, was that the Post Office Act applied to Northern Ireland and Scotland, which the 1959 Act did not, and that we did not want, from the point of view of that Act, to change the law of Northern Ireland and Scotland when we had refrained from doing so in the 1959 Act.
That seems a reasonable argument and so long as the Solicitor-General tells us that he will have a look at this matter and in another place introduce the necessary Amendment to limit it to this country and to exclude Northern Ireland and Scotland, that would be acceptable to me. After all, we have changed the law of this country as to indecency and obscenity without altering that of Scotland and Northern Ireland.
We do not really want to create a situation in which the publisher who has 325 established his right to publish, say, "Lady Chatterley", should be prosecuted for sending that which he has established his right to publish through the post. That is the position today and surely it is one which should be corrected. I entirely accept the limitation in regard to Scotland and Northern Ireland, but can the Solicitor-General assure us that consideration of this matter as it applies to England will be considered in the way I have described?
§ Mr. MacDermot
The Solicitor-General is right in telling the House that his predecessor of the day gave the same advice to hon. Members as he has given today, namely, that the Amendment was unnecessary because, on the view he took of the law, the right to call expert evidence existed. There is only one difference between the attitude of the Solicitor-General today and that of his predecessor in 1959; that his predecessor graciously gave way and agreed to the Amendment being written into the Measure. On his construction of the law, the Amendment could not possibly do any harm. If his construction of the law were wrong and our fears were justified, then it could do good and could achieve the object which we all desired and which his predecessor thought had already been secured by the then law.
I think that we were wise to insist and that his predecessor was wise to give way in 1959. I have grave doubts whether, in the "Lady Chatterley" case, all the expert witnesses who gave evidence for the defence would have been allowed to give evidence if we had not written Section 4(2) into the 1959 Act.
As I have said, I have doubts—I put it no higher than that—whether this right to call expert evidence would be equally secure in a case where the charge was one of conspiracy. Surely there can be no harm in an Amendment being put into the Bill to remove any such doubt. I agree that my Amendment is not a very convenient form of achieving that object and that if we all agree about the object then it is something which the Government can do at a later stage in another place.
I once again urge the Government to look further at this matter and to consider whether they cannot, with equally good grace, yield on this point, as their 326 predecessors did in 1959. If they do not do so, we are left in the state of affairs that we only hope and pray that they are right in predicting what the courts will do and that we are wrong. As my hon. and learned Friend the Member for Northampton (Mr. Paget) said, when doubts of this kind exist and we have an opportunity to remove them, surely it is our duty to remove those doubts and not to make possible what proves to be very expensive litigation on this matter.
One of the cases which has given rise to the Bill, the Straker case, went to the House of Lords, the highest tribunal in the land, and we know what costs are involved in proceedings of that kind. Surely we should do all we can to obviate any risk of quite unnecessary costs of that kind being incurred in asking the courts to decide a point which we can simply decide for ourselves.
§ Mr. Abse
The Solicitor-General takes his economy of style to great lengths when he shows himself so concerned that there should not be a dot or comma in the Bill which can be regarded in any way as superfluous. When we have here an attempt to put it beyond the reach of any ambiguity at all whether it is possible in the circumstances which have been delineated that evidence should be given on the literary merit of published works, and when quite clearly no harm can be done, except possibly an offence to drafting, I wonder why the Amendment is not accepted.
The eyes of the Home Secretary and the Solicitor-General are so rivetted upon the Bill that they are forgetting that our eyes are rivetted upon works of genuine literary merit which could be in some danger. We are, naturally, concerned that if there is some ambiguity then we should have an Amendment of this kind to make it clear that those who are civilised are right in believing that sophisticated books can be published in this country without fearing that the publishers will be pursued by a lot of puritanical Philistines.
This type of subsection is a test of attitude. It is a test whether we believe in having a free, civilised, cultured community or whether, because of the concern of hon. Members who are so anxious about pursuing pornography, we shall jeopardise the position of reputable publishers and genuine authors.
327 I hope that, if necessary, my hon. Friends will take the Amendment to a Division. We should make it clear outside the House that there is a body of opinion in the House which is not prepared to capitulate to Philistina and that when we have the heresy hunts which have taken place, and the pursuits of pornography in every nook and corner of the land, we are not prepared to put in jeopardy works of genuine literary merit. This is why we want this matter
§ to be reconsidered. If there is no reconsideration and we have this blunt uncooperative attitude, we can only come to the conclusion that it is because of a complete lack of concern and disinterest in genuine literary productions in this country.
§ Question put, That those words be there inserted in the Bill:—
§ The House divided: Ayes 44, Noes 117.327
|Division No. 130.]||AYES||[9.12 p.m.|
|Abse, Leo||Hamilton, William (West Fits)||Parker, John|
|Alldritt, W. H.||Harper, Joseph||Pearson, Arthur (Pontypridd)|
|Awbery, Stan (Bristol, Central)||Hart, Mrs. Judith||Rankin, John|
|Bence, Cyril||Hayman, F. H.||Short, Edward|
|Boardman, H.||Howell, Charles A. (Perry Barr)||Smith, Ellis (Stoke, S.)|
|Braddock, Mrs. E. M.||Hughes, Cledwyn (Anglesey)||Sorensen, R. W.|
|Brockway, A. Fanner||Jones, Dan (Burnley)||Spriggs, Leslie|
|Cliffe, Michael||Lipton, Marcus||Stones, William|
|Davies, Harold (Leek)||McCann, J.||Thornton, Ernest|
|Davies, S. O. (Merthyr)||MacDermet, Niall||Watkins, Tudor|
|Doig, Peter||McKay, John (Wallsend)||Whitlock, William|
|Driberg, Tom||Mackie, John (Enfield, East)||Williams, LI. (Abertillery)|
|Duffy, A. E. P. (Colne Valley)||Millan, Bruce|
|Ede, Rt. Hon. C.||Mitchison, G. R.||TELLERS FOR THE AYES:|
|Edwards, Rt. Hon. Hew (Caerphilly)||Oliver, G. H.||Mr. Michael Foot and|
|Fernyhough, E.||Paget, R. T.||Mr. Roy Jenkins.|
|Allason, James||Hamilton, Michael (Wellingborough)||Pitt, Dame Edith|
|Anderson, D. C.||Harrison, Col. Sir Harwood (Eye)||Pounder, Rafton|
|Ashton, Sir Hubert||Henderson, Sir John (Catheart)||Proudfoot, Wilfred|
|Barlow, Sir John||Hendry, Forbes||Rawlinson, Rt. Hon. Sir Peter|
|Batsford, Brian||Hiley, Joseph||Redmayne, Rt. Hon. Martin|
|Beamish, Col. Sir Tufton||Hill, Mrs. Eveline (Wythenshawe)||Rees, Hugh (Swansea, W.)|
|Bishop, Sir Patrick||Hirst, Geoffrey||Bees-Davies, W. R. (lsle of Thanet)|
|Black, Sir Cyril||Holland, Philip||Roots, William|
|Bossom, Hon. Clive||Holt, Arthur||Russell, Sir Ronald|
|Bourne-Arton, A.||Hornsby-Smith, Rt. Hon. Dame P.||Sharples, Richard|
|Bowen, Roderic (Cardigan)||Hughes-Young, Michael||Shaw, M.|
|Boyle, Rt. Hon. Sir Edward||Hutchison, Michael Clark||Shepherd, William|
|Brooke, Rt. Hon. Henry||Irvine, Bryant Godman (Rye)||Skeet, T. H. H.|
|Carr, Rt. Hon. Robert (Mitcham)||Johnson, Eric (Blackley)||Smith, Dudley (Br'ntf'd & Chiswick)|
|Chataway, Christopher||Jones, Arthur (Northerns, S.)||Stainton, Keith|
|Cooke, Robert||Kerans, Cdr. J. S.||Steward, Harold (Stockport, S.)|
|Coulson, Michael||Kirk, Peter||Studholme, Sir Henry|
|Craddock, Sir Beresford (Spelthorne)||Lagden, Godfrey||Summers, Sir Spencer|
|Crawley, Aidan||Lambton, Viscount||Taylor, Edwin (Bolton, E.)|
|Currie, G. B. H.||Legge-Bourke, Sir Harry||Taylor, Frank (M'ch'st'r, Moss Side)|
|Dalkeith, Earl of||Lilley, F. J. P.||Thompson, Sir Kenneth (Walton)|
|Danes, James||Linstead, Sir Hugh||Thompson, Sir Richard (Croydon, S.)|
|d'Avigdor-Goldsmid, Sir Henry||Longden, Gilbert||Thornton-Kemsley, Sir Colin|
|Donaldson, Cmdr. C. E. M.||Lubbock, Eric||Tilney, John (Wavertree)|
|Doughty, Charles||Lucas-Tooth, Sir Hugh||Touche, Rt. Hon. Sir Gordon|
|Elliot, Capt. Walter (Carshalton)||MacArthur, Ian||Turner, Colin|
|Elliott, R. W. (Newc'tle-upon-Tyne, N.)||McLaren, Martin||Turton, Rt. Hon. R. H.|
|Errington, Sir Eric||McMaster, Stanley R.||Tweedsmuir, Lady|
|Farr, John||Maginnis, John E.||van Straubenzee, W. R.|
|Finlay, Graeme||Mathew, Robert (Honiton)||Walker, Peter|
|Fisher, Nigel||Matthews, Gordon (Meriden)||Wills, Sir Gerald (Bridgwater)|
|Gardner, Edward||Mawby, Ray||Wilson, Geoffrey (Truro)|
|Glyn, Dr. Alan (Clapham)||Maxwell-Hyslop, R. J.||Wolrige-Gordon, Patrick|
|Goodhew, Victor||More, Jasper (Ludlow)||Woodhouse, Hon. Christopher|
|Gower, Raymond||Oakshott, Sir Hendrie||Woollam, John|
|Green, Alan||Osborn, John (Hallam)||Worsley, Marcus|
|Gresham Cooke, R.||Page, John (Harrow, West)||Yates, William (The Wrekin)|
|Grosvenor, Lord Robert||Partridge, E.|
|Gurden, Harold||Pearson, Frank (Clitheroe)||TELLERS FOR THE NOES:|
|Hall, John (Wycombe)||Pike, Miss Mervyn||Mr. Peel and Mr. Pym.|
§ 9.20 p.m.
§ The Secretary of State for the Home Department (Mr. Henry Brooke)
I beg to move, That the Bill be now read the Third time.
When a very good Bill reaches its Third Reading stage unchanged, but for one or two drafting Amendments, from the Bill to which the House gave a Second Reading some weeks ago, there is very little for the Government spokesman to add in moving the Third Reading.
We have spent 11 hours in Committee and on Report on the Bill, but practically none of the matters to which we devoted all that time is within the scope of the Third Reading debate, because of the rule that on Third Reading we can debate only what is in the Bill, and not other matters which the Committee or the House has decided not to include in the Bill. I trust, however, that it will be in order for me to express my warm thanks to my right hon. and learned Friend the Solicitor-General for all the time and care that he has given to expounding the legal aspects of the Bill.
There has never been any intention on the part of the Government to weaken the protection afforded by the 1959 Act to serious works of literature and art. The Bill leaves this protection unimpaired. Indeed, our proceedings have brought forth a statement by my right hon. and learned Friend, on behalf of the Attorney-General, about the practice of the Director of Public Prosecutions which, I hope, may be helpful to all concerned.
The Bill is designed to strengthen the law as contained in the 1959 Act so as to enable the police to deal effectively with the commercial traffic in pornography. I believe that the view of the Government is widely shared by people up and down the country that it is imperative that these additional powers should be available to combat the possibility of young people being corrupted by this flood of pornographic trash which has been finding its way into retail shops in increasing quantities in recent years.
I was sorry that all the Opposition Members present decided to vote in Committee against the Question that Clause 1 should stand part of the Bill, 330 because Clause 1 is the main, operative Clause.
§ Mr. MacDermot
Surely the right hon. Gentleman does not want to misrepresent that vote. We were discussing at the same time a new Clause which suggested that the object to which the Home Secretary has just referred could be achieved in another and different way. That was the issue on which we voted.
§ Mr. Brooke
The fact remains that the Opposition Members who were present voted solidly, such as they were, against the Question that Clause 1 should stand part of the Bill. They may have had in their minds other and less effective ways of accomplishing the object, but the Government's concern was to make the Bill effective. That, I believe, we have done.
Hitherto, it has been difficult effectively to check the activities of the importers and the wholesalers who handle this pornographic material. What the Bill will do will be, among other things, to enable criminal proceedings, with the possibility of substantial penalties, to be brought against the people who make their living from this disreputable trade. Surely that is an object which will have the support of all decent-minded people up and down the country. It is for that reason that I ask the House to give the Bill a Third Reading.
§ 9.25 p.m.
§ Mr. MacDermot
As the Home Secretary has just said, the Bill now comes before the House virtually in the same form as it was before the House on Second Reading. The result of our efforts in Committee has been to persuade the Home Secretary to accept one modest pair of Amendments, a pair of Amendments which the right hon. Gentleman accepted because he thought and declared that they would make no difference to the Bill. That is the same ground on which the Solicitor-General of the day accepted the Amendment which we have just been discussing in the 1959 Act. My view is that the Amendments were useful and that they materially alter one part of the Bill.
The greater part of the time and discussion has been devoted to the question of whether or not there should be secured in the Bill the right to jury trial. Great 331 anxieties arose following the "Fanny Hill" case about a publisher finding himself having to seek to defend on grounds of literary merit a book against the background of a sale in a pornographic bookshop and that issue being determined not by a jury but by a stipendiary magistrate. We have not succeeded in persuading the Government to write that matter into the Bill, but the Solicitor-General has given, and has repeated today on the Floor of the House, a statement of policy which goes, I think, a long way towards achieving our object. I should like to spend a moment drawing the attention of the House to what the terms of that assurance are, and, particularly, drawing to the attention of the book trade what the implications are.
First, I should say that I understand that the Solicitor-General, speaking, as he does, on behalf of the Attorney-General in this matter, has given to the House the view which the Attorney-General takes of the legal effect of the Bill, and that he is not merely declaring some administrative procedure which could be changed at any time but is merely declaring what, with the full weight of authority of his office, he understands to be the law, and, consequently, what would be the practice of the Director of Public Prosecutions in giving effect to the Bill if it becomes law.
There were two things which we wanted to ensure. The first was that the reputable publisher publishing a book in this country who takes the risk—and it is a risk—of publishing a book which he believes to be permissible but which others may think objectionable on grounds of obscenity, could have the issue of its obscenity or non-obscenity or the issue whether the publication can be justified as being for the public good determined by a jury.
Secondly, we wanted to ensure that, when so tried, the publisher would be tried alone. I know that those who have had the task of seeking to put forward this defence of public good have found it extraordinarily difficult if they have had to do so when the whole background of the case which is being considered is a sale in a poky little pornographic bookshop in Soho, for the simple reason that it lays the defendant open to the cross-examination, "Are you suggesting 332 that the people who frequent the bookshop are in the slightest interested in the literary merits of the work?" For the purposes of any court proceedings, the question of obscenity or no has to be tested against the circumstances of the particular sale under consideration.
If, on the other hand, the publisher is prosecuted alone, and it is his intention, or his practice, to sell the work to the public at large, then the issue of obscenity or no gets tested against the background of its sale to the public at large and whether its sale can be justified as being to the public at large. That is not itself so important that he should be tried alone. We have, in effect, achieved an assurance that in certain circumstances the publisher will be able to ensure that he can have the issue of the obscenity or the literary merit of the book tried by a jury, and also that he will be tried alone when that is considered. But it is important that publishers should realise what are the preconditions that they must satisfy in order to secure this right.
Normally, when the Director of Public Prosecutions or the police, on his advice, are investigating a book about which there have been complaints, it is the practice, if the book is published in this country, to call on the publisher and interview him. If, at that stage, he affects surprise and indicates that, in view of the objections of the police, he will hold up publication or will not publish the work any further, he does not provide any material on which he can be prosecuted under the terms of this assurance.
What it amounts to is that a publisher who wants to ensure trial by jury has to make up his mind to stick to his guns if he is genuinely publishing a work that he considers to be justifiable owing to literary merit. He must make up his mind to see the thing through and must make clear that he intends to do so and will, if necessary, welcome having the matter decided by a jury. If he does that, it is the effect of the assurance we have been given that he will be prosecuted and will consequently have the right to elect for trial by jury.
But he must also realise the risks he is running. He will run the risk of being prosecuted successfully, when he may have to pay a fine which may be 333 heavy and possibly even face sentence of imprisonment—although I think that the House will agree that this is a possibility which may be dismissed in the case of any publisher who genuinely puts forward a defence of literary merit. It is surely unlikely that, if that defence fails, he will find himself sent to gaol but he may be subjected to a substantial fine.
So this is what we have secured with the co-operation of the Law Officers, and I repeat my thanks to them for the careful trouble they have taken in this matter. It may not be an assurance in a form that will give great comfort to the publishing trade, but in the way I have described it, and subject to the limitations I have pointed out, I think we can say that we have secured a limited right to trial by jury and, above all, a right to trial alone, which is, perhaps, the most important thing of all.
Another subject which we considered at some length in Committee was the question of the practice of disclaimer. It is important that the House should know the extent to which it is intended to continue the practice of disclaimer if we give this Bill a Third Reading. The disclaimer procedure, roughly speaking, means that, when the police are investigating bulk stocks of pornography held by the commercial pornographer at whom the Bill is aimed, sometimes, instead of applying to the courts for a summons for forfeiture, or instead of proceeding by way of criminal proceedings, they will enable the person who, in effect, is the owner of the goods, to disclaim ownership of them. Then, instead of the goods being subject to any further process of law, they are taken away and destroyed.
I do not know whether it is still the same but the form of disclaimer in 1957, as related in the police memorandum to the Select Committee, was, "I, so and so, do hereby disclaim ownership of the above items of property seized by the police from my bookshop at such and such an address on such and such a date". In Committee I characterised that disclaimer as being, in effect, a lie. That was a strong word to use. Perhaps a happier expression would be that it is a fiction.
I hold that it is a fiction, because in law, Mr. Speaker, you cannot, just by 334 signing a piece of paper, get rid of your ownership of property. It is very difficult to abandon ownership and title in property. If the police take away goods in this manner, in law the property in the goods still remains in the person who signs the disclaimer. The only effect of the disclaimer is that it provides a protection for the police if they take away the goods and destroy them in that they cannot subsequently be sued by the person from whom the goods were taken away for any wrongful seizure of the goods. That is the object of the disclaimer and it is one which the commercial pornographer, in many circumstances, welcomes, because it enables the matter to be dealt with quietly without his being subjected to proceedings in a court.
I consider it to be an undesirable practice. It is not right, when the police are enforcing the law and when they find circumstances which constitute a criminal offence, that they should go through this charade of the disclaimer procedure in order quietly to achieve the object of the law in a manner for which the law does not provide. If we give a Third Reading to the Bill, mere possession of pornographic or obscene articles with a view to publication for gain will be a criminal offence. Therefore, in circumstances in which the police would use the disclaimer procedure, they would have evidence to bring a criminal prosecution for the new offence.
If they thought that the circumstances were such that it was not necessary to bring criminal proceedings to restrict the activities of a pornographer, they would have the chance to bring forfeiture proceedings, which do not involve a criminal conviction against him. That is what Parliament has provided for and we have just been reminded by the Solicitor-General of the great wisdom of Parliament in 1959 in providing these two procedures. What we did not provide for was the disclaimer. On the contrary, we all assumed that it would die since we gave the new and wider powers with the forfeiture procedure in the 1959 Act.
The Select Committee on Obscene Publications, in paragraph 30 of its Report, said:The routine of police activities is at present hindered by the fact that a trial court 335 has no power to order the destruction of obscene material. If a person has been successfully prosecuted under common law, a further summons is necessary under the Obscene Publications Act, 1857, for the defendant to show cause why the material should not be destroyed. The lack of such a power is one of the reasons given by the police for their use of the undesirable practice of 'disclaimers', by which a bookseller or other person completes a form …The Select Committee then went on to describe the procedure, which it rightly described as undesirable.
If it was undesirable then, but explicable because the police did not have sufficient powers, surely it was undesirable and inexplicable for it to continue after the passing of the 1959 Act. Now, when we are giving even wider powers to the police, namely, the power to bring a criminal prosecution for mere possession with a view to publication for gain, I cannot see any reason why the Home Secretary should want to give his blessing to a continuance of the disclaimer procedure.
The right hon. Gentleman told us in Committee that he would look at the matter again. The only defence he put forward for it then was that it had been approved by the chief magistrate at Bow Street. I do not find that a very convincing argument. It is a matter for the House to decide whether to approve it. It is not for the chief magistrate at Bow Street. I can see that he would approve it, because it might save him some rather tedious work in connection with forfeiture proceedings.
I should like to ask the Home Secretary what the present procedure is. When the memorandum was put in by the police to the Select Committee they described the practice as follows:This practice has been in use for many years. It has the advantage of saving time—i.e. no summons is issued or served and there is no hearing before a Magistrate and no examination of documents by a Magistrate.When the Home Secretary was explaining the procedure in Committee he contended that it involved the articles being brought before the magistrate again, after the disclaimer had been signed. If the Home Secretary is right about that it would seem to indicate a change in pratice in the disclaimer procedure as described to the Select Committee.
My own view—and I hope that it is the view of the House—is that the disclaimer 336 procedure should now cease. I cannot see why the Home Secretary should want to retain it. As he told the House once again just now, the whole purpose of the Bill is to try to take more effective action against the commercial pornographer. If he wants to have stronger powers against him why does he now continue a procedure which is, in effect, going to let him off the hook?
I turn finally to the point which the Home Secretary put forward in commending the Bill, namely, that it will give effective powers to the police to stamp out commercial pornography, which is causing offence to so many people. For a few minutes I want to examine the nature of this pornographic trade, and to see how far the Home Secretary's claim that the Bill will help to stamp it out is justified.
We heard little, either in the Second Reading debate or in Committee, about the nature of this trade. I have had drawn to my attention an enlightening lecture given by the Deputy Director of Public Proscutions to a conference on pornography and public morals which was convened by the Public Morality Council in November last. He said, in effect, that pornography is now big business, and that there are three types of pornography—first, the American paper-back novel; secondly, what he called Soho photographs and, thirdly, pin-up magazines.
The first class is numerically much the greatest. The theme of these novels is almost invariably a combination of sex and violence. I agree with the right hon. Gentleman that these are the most pernicious forms of pornography. Like John Cowper Powys, I regard sadism as the great evil of this age. For some curious reason our American friends seem to find violence, especially sexual violence, less unattractive than we do.
The profits to be made from the sale of these novels are very great. Importers in this country buy the novels at little more than scrap value, for the simple reason that when they buy them they are virtually scrap. Apparently, such is the trade in these novels in America that titles very soon go out of fashion, and if they are not sold very quickly there is virtually no market for them in America, and they are then exported for sale to 337 countries which are ready to import them. The result is that huge profits are made.
Until a few years ago there were no American paperback novels in this country, but in 1961 the restrictions on dollar imports were relaxed and as a result between 1961 and 1963 the police and Customs actually seized 1,863,000 obscene novels imported from America. It is rather interesting to see that the Deputy-Director of Public Prosecutions went on to explain those figures to the Council in these terms:It may help to some appreciation of that figure if I say that, according to the Registrar-General's figures, there were only 1,657,000 girls and boys in this country between the ages of 14 and 16 years. That means in those two years there were actually seized in this country more obscene American novels than there are children between the ages of 14 and 16 years to read them.I say that that is curious, coming from the Deputy-Director of Public Prosecutions, because it seems to assume that the market for this literature is teen-age children between the ages of 14 and 16. If there is evidence to support that I should be very interested to know what it is. It is a curious thing that in all the discussions on obscene publications no one ever seeks to obtain any objective information about the people who purchase it. It is always assumed that it is aimed at teen-agers. It is always assumed that it is teen-agers who buy it and who will be corrupted by it.
I have read through all the evidence given before the Select Committee on Obscene Publications and there was only one answer given by anyone directly to this question who are the purchasers of obscene publications. That was given by Lady Cynthia Colville, the chief witness on behalf of the Morality Council which convened the conference at which the Deputy-Director was speaking. I wonder what he thought of this passage. Lady Cynthia Colville said to the Select Committee—it is Question No. 21 on 12th December, 1957:I think probably it is true to say they"—she was dealing there with the second category of pornography—the sexual photographs—are not sold to young people, for two reasons: the first is that a young person has not the money, and the other is that generally they are the interest of the grown-up person. In the shops I have been in"—338 they were discussing the Soho bookshops, the very shops we are told at which this Bill is directed—many times, the shops the usually full of that ageing, middle-aged sort of person".I do not know how many ageing, middle-aged sorts of persons there are in this country to buy the 1,863,000 novels which were seized by the Customs, but that answer, I think, is an important reminder of who are the real purchasers of most of this obscenity.
The Deputy-Director went on to say that it was difficult to hazard a guess from the actual figures of those works imported into the country. He went on to hazard the guess that the police and Customs—
§ Mr. William Shepherd (Cheadle)
On a point of order. Is it in order in a Third Reading speech to make these extensive quotations from a speech given elsewhere?
§ Mr. Speaker
I was wondering. I think that the hon. and learned Gentler man may be discussing what is the effect in operation of the content of the Bill as it now is. I think it is just defensible on that line.
§ Mr. MacDermot
I am obliged, Mr. Speaker, and I am sorry that by that intervention you should have been called on to explain why it was that you were allowing me to continue to address the House as I was.
The speaker said he thought that the authorities were lucky if they seized more than one in six of all the imported novels of this kind. I wish to ask the Home Secretary why he thinks that this Bill will enable us to help him to seize any more than one in six, because there are no additional powers of seizure in the Bill at all. The powers of seizure remain exactly the same.
All the Bill does is to duplicate the powers of seizure by a new power to prosecute for a criminal offence, which means that the people whom the police do trace—the one in six—they can now prosecute instead of going by the forfeiture proceedings. It will not help in the slightest to trace or take any action against the five-sixths who are escaping detection. This is an important point to bear in mind in judging the claims put forward by the Home Secretary that 339 the Bill will in some way help to stamp out the trade in economical pornography.
The second category that the right hon. Gentleman dealt with is the category of Soho photographs which are indecent photographs, sold apparently for 5s. a piece, which cost 4d. to manufacture, and again produce a very substantial profit. They are photographs which I think anyone would characterise as obscene. As an indication of the quantity which are sold, in the third category, namely, pin-up magazines, the people at this conference were told that in one shop alone the records showed that the takings from the sale of these photographs were as much as £100 a day, or £30,000 a year.
In spite of the seizures and forfeiture proceedings taken against those booksellers the attempt to stamp out this trade is quite vain. The way it was put in the address was thatThe extent of this trade can be seen from the fact that on one raid last week, the police seized over eight tons of magazines of this kind.And, of nude photographs:Their printers and publishers are changing every day and the police find that their efforts to stem the tide of these magazines are rather those of Canute.I ask the same question: what power, under the Bill, will help them to stem that tide if the printers and publishers are being changed every day? The truth is that the effect of the Bill, if it has an effect, will be a distinctly limited one. It will be that in cases where at the moment the police can go by forfeiture, but could not prosecute because they could not find evidence of an actual sale, they will be able in future to prosecute for the new offence of having the obscene article for publication for gain.
The question is: who is to be prosecuted? In many cases the only person the police will be able to find to prosecute will be a shop assistant in the shop who, up to now, has not been open to prosecution at all. I do not imagine that the prosecution of people of that kind will do very much to deter the commercial pornographer who is making huge fortunes out of trading in this kind of material. Even if now and again the police should succeed in tracing one of the big men, as it were, behind the 340 scenes, who are making really big money and can obtain a prosecution and a prison sentence on a man of that kind, the volume of this material is such, and the fortunes which are being made from it are such, that even a prison sentence for an occasional offender is not likely to deter the rest of the pornographers from carrying on with their trade.
I say all these things not to try to decry the Bill, or to suggest that the House should not give it a Third Reading, but because I think it desirable that we should not delude ourselves and that we should understand what the limitations of a Bill of this character are. My view is that the Bill will possibly have some effect, but relatively little, in achieving its real object of deterring large-scale commercial pornography. I feel that we should be deluding ourselves to think otherwise, and deluding the public if we were to suggest otherwise.
From the start I have never liked the Bill, because it creates a new offence; making mere possession of an article with a view to publication for gain a criminal offence. I have grave doubts whether it will make any serious difference in the volume of the pornographic trade, and I think it regrettable that the Bill does not include the right to trial by jury. This summarises my own attitude to the Measure—and, of course, I am speaking only personally. But in spite of those drawbacks to the Bill, I myself do not feel sufficiently strongly opposed to it to want to vote against its Third Reading.
§ 9.55 p.m.
§ Mr. Roy Jenkins
My hon. and learned Friend the Member for Derby, North (Mr. MacDermot) has summarised my whole attitude to the Bill. I cannot congratulate the Home Secretary on his somewhat inflexible conduct, but I would congratulate him on one thing, and that is on having kept the hon. Member for Wimbledon (Sir C. Black) quiet since Second Reading. The hon. Member has constantly sat in on our proceedings, brooding oppressively on what has been going on, but he has not opened his mouth since the Second Reading. That is probably because he is entirely satisfied with what the Home Secretary is doing, which is one thing that makes me very suspicious of the Home Secretary's conduct of the Bill.
341 The Home Secretary, as has been pointed out at several stages of this Bill's progress, has not applied himself really seriously to the arguments that have been put forward. Of course, he says that he wants to stamp out pornography, and very occasionally one of his hon. Friend's has said the same thing, but no attempt has been made to deal with the particular method by which this should or should not be done. In his Third Reading speech, the right hon. Gentleman said—I made a note of it—"every decent-minded person up and down the country will welcome the Bill". I should like to draw his attention, if that has not already been done, to one person who does not welcome the Bill. He is one of the Home Secretary's own constituents, and probably one of the country's most distinguished publishers—Sir Stanley Unwin.
He wrote to the Home Secretary on 2nd July, and was kind enough to send me a copy. The letter begins:I am very disturbed by some of the implications of the Obscene Publications Bill which will shortly be before Parliament for a third reading, because it has the effect of removing so much of the protection of the 1959 Act afforded to bona fide and reputable publishers.May I draw your attention to one or two specific points?One Clause says, 'a person shall be deemed to have an article for publication for gain if with a view to such publication he has the article in his ownership, possession or control'. Unsolicited manuscripts pour into this office daily and until they have been examined I naturally have not the slightest knowledge of their contents. Moreover, they are often sent prior to careful examination to outside readers for their opinions. Under this Clause I might well be guilty of an offence. The fact that a law officer will assure me that I should not be guilty gives me no comfort, because past experience has shown me that all such assurances have, in practice, little or no value.It would seem that Sir Stanley is following in the substance of his general conclusion about the great inferiority of the Law Officers' assurances, however well-meant, to a statutory provision, a thought that has been with us constantly—
§ Mr. Charles Doughty (Surrey, East)
If the hon. Member will look at Clause 1 (3, a) he will see that it provides an excellent defence, and deals with the objection raised by the person to whom the hon. Gentleman refers.
§ Mr. Jenkins
It is a defence that, in certain circumstances, could be used and, I hope, will be used—
§ Mr. Jenkins
—but I doubt very much whether it could be used by a publisher in exactly these circumstances. In any case, this was only one of the points Sir Stanley Unwin raised; he made a number of others with which I do not intend now to weary the House. Nevertheless, they were points expressed by a publisher of great knowledge and great repute, and a constituent of the Home Secretary—
§ It being Ten o'clock, the Debate stood adjourned.
§ Question again proposed, That the Bill be now read the Third time.
§ Mr. Jenkins
I should be extremely glad to know whether the Home Secretary considers that this publisher—one of his leading constituents—is numbered among, or excluded from, every decent-minded person up and down the country whom he blandly assured the House on Second Reading would welcome the Bill.
I have no doubt—I said this clearly on Second Reading, and I accept the view now—there may be some faults which have shown themselves in the working of the 1959 Act. I do not take the view that it was quite unnecessary to bring forward any amending legislation. I was certainly prepared to look at such legislation. The Home Secretary started by saying that he wanted to do this compatibly with giving every possible protection to reputable literature. I do not think that in his behaviour, particularly in Committee, but also on Report and in his general attitude to the Bill, he has shown any desire to take account of the arguments which have been advanced. He has the natural inflexibility and confident self-righteousness of the true censor. I do not feel very happy with these matters left in his hands.
I hope that the assurance we got from the Solicitor-General means something. I am sure that with a little good will it 343 would have been possible to put this into statutory form. I am very sorry that it was not done. I think that the Bill, although some part of it may be necessary, remains unsatisfactory to those who have regard to the interests of genuine and reputable publishers and works of genuine literary merit.
§ 10.2 p.m.
§ Mr. Abse
As perhaps the House may be aware from what I may have had the opportunity of saying in the past, now that we are on Third Reading I still have little enthusiasm, to say the least, for the Bill. I believe that in many respects it is as suspect as the material with which it is attempting to deal.
We have spent a very long time on the Bill. One of the few matters for which I would rely on the Home Secretary is his arithmetic. I would be quite prepared to accept it from him, without necessarily doing my own addition, that we have spent 11 hours on the Bill. My comment on that is that it seems that we spent a great portion of last year discussing immorality and that we are apparently condemned to spend a great deal of this year discussing morality.
I doubt if ever there was a Parliament which spent so much time on what many people may regard as a great deal of irrelevancy which is far removed from the country's major problems. Having looked at the contents of what is now before the House, I suspect that if this lingering Parliament went on very much longer the Home Secretary would be bringing in legislation about dirty jokes and writing upon the walls of public lavatories.
In my view, there are four reasons why the contents of the Bill are suspect. The first reason has been touched on by my hon. and learned Friend the Member for Derby, North (Mr. MacDermot). It is that we have absolutely no evidence whatsoever as to whom this material is alleged to have corrupted and whether, in fact, it corrupts at all. I do not like legislation that is based upon the repugnance and disgust of a section of the community. I think that legislation, when it comes before the House, should be based upon a sociological survey. It should be based upon statistical survey. It should be based upon some knowledge.
344 I regard with deep concern a Bill which makes the assumption, in the way in which the Home Secretary, in a didactic and dictatorial manner assumes, that all this material must be corrupting young people, as he said. The right hon. Gentleman takes dangerous strolls round Soho. I fear them. I often go to Soho to escape from the institutionalised food which the public school spirit imposes upon us in the House of Commons. When I have gone to Soho I have observed, as anybody with his eyes wide open must observe, that the people who prowl around these pornographic bookshops are not boys of 14 to 16, but pathetic, isolated, aging people—usually about the age of the Home Secretary.
Is it not characteristic of our lack of knowledge in depth that suggestions are made about youth being corrupted? Are there not reasons why we keep on talking about youth being corrupted by sex? Some of it is antagonism on the part of an ageing group for young juveniles; people who fear them, their potency and their life and who, under the guise of pretending that they are protecting them, deny them their right and inheritance—their right to live and grow up as men and women in the fullest sense. For these reasons I say that, in my view, we are presented with a Bill which is not based on any evidence of fact.
This brings me to the second reason why I find the Bill suspect. I attempted to delineate my reasons for finding it suspect on Second Reading and at this stage, with the Bill standing in its present form, I must again say that the Bill spits in the face of history. When my hon. and learned Friend the Member for Derby, North made out a perfect case and spoke of attempts that have been made to prevent the Bill being like King Canute's efforts to turn the tide, that is precisely what I said on Second Reading. The same could be said of every other occasion in the past when there has been an attempt, as this Bill attempts, to suppress pornography. On each occasion, unfortunately, what has happened is that pornography has been driven partially underground and higher prices have been obtained for it.
Is it not a fact that this has happened when sponsors of past legislation have 345 attempted to take the sort of action proposed by this Bill? I fear that that will happen on this occasion. It is rather like an iceberg. The information given by my hon. and learned Friend the Member for Derby, North did not surprise me. Five-sixths of pornography, as it were, is still underground. That will continue to be untouched, in all probability, by all the action that is claimed to be within the Bill.
I believe that the only way to contain this wretched material is when public taste is able to assert itself. There is a danger, too—and this is the third reason for expressing my diffidence about the Bill—that the Bill may cause other troubles. I have been thinking about it and, although I cannot recall the poet's name, there are some words which go something like this:Singing is sweet,But to be sure of this,Lips only singWhen they cannot kiss.What he was trying to show in those words was that the poet sings about romance when he is denied sex. The man who lives a full life may be less inclined to romanticise; and there are some conclusions to be drawn from that.
I believe that the millions of people who are so wretched and fragmented in their sexual attitudes that they are buying pornographic material are buying it because they are obviously gaining some satisfaction from it. They must be, because, regrettably, otherwise they would not be spending so much money on it. They must be getting something out of it or they would not be buying it on such a huge scale, a scale which I find frightening, for quite different reasons from that of the Home Secretary.
I find it frightening not because I think that they will be corrupted, but because there are so many millions of people who are turning to such material. What are the difficulties which they have in their personal problems which mean that they indulge in this type of behaviour in order to find some happiness on the sexual plane? I find that a chastening and sad thought. But it does not cause me to react in a violent or punitive attitude. It creates in me a different attitude entirely.
The Bill may cause other troubles. If we drive things underground, and 346 deny certain outlets, then we do not know in what other ways we may have trouble. If those who sweep the prostitutes off the streets, and into the passages, sweep them too far away, without trying to deal with the reasons why men seek out prostitutes, they may be encouraging violence and other types of behaviour. It is too easy and facile an assumption which is contained within the view that if we ban pornography we shall not, as a consequence, when it is on such a large scale as it clearly is now, see some unpleasant consequences flow from our action. I do not agree with an attitude which leads to a Bill which is just an emotional spasm reacting against this problem without going into the matter in the detail which it requires.
I am opposed to the Bill—or perhaps "opposed" is too strong a word. I am indifferent to the Bill, because it deflects attention from the real reasons why a vast amount of pornography is being bought on such a scale. If we had not a Bill of this kind, might we not be examining such problems as sex education in schools, the training of child care officers, which is so inadequate, why our matrimonial guidance service is still so insufficient, and why we have insufficient probation officers to help solve family problems? We might be considering these matters if we were not deflecting our attention from them in a Bill of this kind. We might be considering the real etiology of pornography and examining why people read it. I believe that that would have led us to concern ourselves with the stability of family life.
The Home Secretary may think that in the Bill he has been a great champion of morality. In his puritanical zeal he may think that he has struck a blow against those people who are the predatory pornographic traffickers. But in my view what he has done is to indulge himself and a large group of people who lack compassion and humanity towards those who need it, and who fail to ask themselves why it is that people are buying millions and millions of copies of trash. This is not a very glorious moment in the House of Commons. It is an inglorious interlude, like some of the other punitive actions which we get from the Home Secretary these days.
§ 10.13 p.m.
§ Mr. Charles Doughty (Surrey, East)
Sometimes when the hon. Member for Pontypool (Mr. Abse) speaks I support what he says. Sometimes I am against him. Tonight I am dead against him. In a few sentences he has made quite clear what his views are—to sell pornography where one likes and to whom one likes and to let the person who buys it be the judge. By then it may be too late. But that is the hon. Member's view. Speaking entirely for myself—I do not know whether other hon. Members support me—I am dead against that view.
The hon. and learned Member for Derby, North (Mr. MacDermot) summed up the situation when he said that we are dealing with an enormous trade and business which makes a tremendous amount of money and does not care two straws whom it corrupts and whom it depraves and what is the result of its trade and traffic. We may criticise the Bill and say that it does not go very far. It may be true. One could go a great deal further. I well remember the 1959 Bill. It started as a Private Member's Bill, introduced, I believe, by the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins). If I am wrong, I apologise to him, but at any rate he supported it. I recollect the great difficulty which the Government had in persuading the House, when they gave time to the Bill, to accept a large number of necessary and advisable Amendments.
At any rate the Bill went through and it became the law of the land. In many ways it was a liberalising Bill and I hoped at the same time that it was a Bill which would put an end to this vast trade in filthy books dealing with fornication—and I do not like to use the word "sex" because in this context fornication is the right word. The fact is, however, that this Bill will not put an end to it any more than the Criminal Justice Act puts an end to all larceny, theft and robbery, but at least this Bill will do something towards that end.
The fact that a constituent of the Home Secretary may have objected to it, and on entirely wrong ground, is wholly irrelevant. I always thought, anyway, that letters from constituents to Members of Parliament were private. I have always taken that view. If such a letter is to be read in the House of 348 Commons that certainly will not alter the line which I have always taken.
§ Mr. Paget
The hon. and learned Member cannot have been here on the classic occasion when the hon Member for Sevenoaks (Sir J. Rodgers) was accused of having passed on a private letter from a constituent, who was a parson, to his bishop and the House decided that letters from constituents to Members were in no way private, by a majority vote carried by the Conservative Party.
§ Mr. Doughty
That may well be so. Although I have been in the House many years perhaps I was not here at that time.
§ Mr. Roy Jenkins
It might be held that it would be inappropriate for a constituent, without the consent of the Member, to publish something written to him by a Member of Parliament. Equally, it would be inappropriate for a Member to publish something written to him by a constituent. That was the issue in the case of the hon. Member for Sevenoaks (Sir J. Rodgers), but an ordinary citizen has a perfect right when he writes to his Member of Parliament to give what publicity he likes to the letter. Sir Stanley Unwin decided to do this, and having received the letter I decided to draw the attention of the House to it.
§ Mr. Doughty
The conduct of Sir Stanley Unwin is open to grave criticism and I make it here and now. Apart from the fact that it was nonsense, I make that criticism as well.
§ Mr. Doughty
I repeat that I criticise his behaviour and I hope that Members of Parliament and their constituents will feel that when they correspond with each other the matter is at least private. That is my answer to that particular gentleman's views.
The Bill deals with a number of matters which have arisen since 1959. I need not refer to particular cases dealing with negatives held to be not obscene 349 because they were not positives, and rather technical matters of that kind. If the Bill goes any distance at all to help to put an end to this enormous trade it has my great support. I cannot follow the minds of hon. Members, wherever they may sit in the House, who want to encourage this trade and who want to say, "Do not let us have the magistrates dealing with it.". I am a great believer in the magistrates. They do an extremely good job for which the majority of them are unpaid. They have great experience of local matters and of the way people can be corrupted. They see these people before them in other capacities and they know that this pornography is one of the matters, though not by any means the only one, which certainly lead to the difficulties and troubles with which the young, whether they be teen-agers or people over 21, are affected and as a result come before the courts. If we could have a stronger Bill which increased the penalties and dealt with the shopkeepers who trade in this kind of literature and photographs, whether they be American, English or of any other origin, it would have my wholehearted support. If it dealt with people who for money are prepared to corrupt people, of whatever age, I can assure hon. Members that I would most certainly support it.
If hon. Members opposite—and, in fairness, I should say that I think that there are only one or two of them—I am not accusing hon. Members opposite in toto—want to flood the country with pornography, as obviously they do, and to fill the shops with pornographic literature of various kinds, I am sure that no one else in the House would agree with them. I hope that the Bill, such as it is, will get a Third Reading.
§ 10.21 p.m.
§ Mr. Michael Foot (Ebbw Vale)
The hon. and learned Member for Surrey, East (Mr. Doughty) further marred what would have been a particularly absurd speech by advancing the most laughable proposition ever presented to the House of Commons in my knowledge, namely, that a constituent who wishes to air a public matter on a Bill before the House, and who decides to write to his Member of Parliament on the subject, commits an offence by sending a copy of that letter to other Members of the House.
350 This is the most laughable and absurd proposition which could have been advanced. I should have thought—
§ Mr. Doughty rose—
§ Mr. Foot
If the hon. and learned Member will remain seated, he can intervene in a moment after he has given some consideration to the matter.
The hon. and learned Member advanced this ridiculous proposition—which I should have thought the Home Secretary would be eager and the first to repudiate—to besmirch the character of a man with the highest reputation, Sir Stanley Unwin. I should have thought that he would be eager, on consideration, to withdraw such an accusation. He committed no offence in any sense. There is no shadow of reflection which could be cast on him. For the hon. and learned Member to barge in and suggest that such a reflection should be cast on him is an absurdity. The hon. and learned Member can now intervene.
§ Mr. Doughty
I will do so standing up. I objected to the bad taste of that man, and not about whether it was a breach of privilege of this House, or nonsense of that sort. It was of the very worst possible taste.
§ Mr. Foot
The hon. and learned Member now wants to censor the letters which members of the public send to Members of Parliament. There cannot be a single Member in the House who agrees with him on that. There is no reflection—and I have never mentioned any question of privilege—on the good taste of Sir Stanley Unwin. Therefore, my hon. Friend the Member for Birmingham, Stechford (Mr. Roy Jenkins) had every right to quote such a letter, and every other hon. Member must recognise that to be the case.
The hon. and learned Member for Surrey, East then proceeded to make an allegation against some hon. Members on this side, whom, bravely, he did not specify, by saying that they wished to see this country flooded with pornographic material. That is an absolutely false charge which could be made only by a person who had either never listened properly to the debates on this matter, or was incapable of understanding what he heard. No one listening to the speeches made by any hon. Member throughout these proceedings could have made such a suggestion.
351 My non. Friend the Member for Pontypool (Mr. Abse) and myself take a different view from some hon. Members about the Bill. That does not mean that we want to see the country flooded with this kind of material. We have suggested—and there is a great deal of evidence to support our view; it has not been contested by anybody with real evidence or facts—that sometimes the best way to flood the country with this kind of material is to censor it, because that makes it all the more attractive. [Laughter.] The hon. and learned Member laughs, as though that was an absurd proposition.
Everybody knows that some of the books which have been most widely circulated throughout the country have been the ones which have been condemned. If the hon. and learned Member does not understand this, he cannot have listened to the arguments. To suggest that my hon. Friend the Member for Pontypool, or myself, or any other hon. Member, is eager to see this kind of material pouring into the country is to show a complete lack of comprehension of everything which has been said throughout our proceedings. I have never heard a more half-witted utterance in the House of Commons. Having made his absurd remark, the hon. and learned Member has not the courtesy to withdraw it and, apparently, repeats the allegation from what he regards as being an unproper position from which anyone should make remarks in the House of Commons.
It is quite untrue that any of us have wished to see this kind of material flooding the country. The argument in that respect is how best to stop it. We do not think that the best way is to censor it. This stuff is utterly boring and the Government, by their censorship measures, add an element of attraction to it which it would not otherwise possess. That is not the best way of dealing with it, but I can understand that hon. Members do not agree with me about that.
I can understand hon. Members wishing to do what the Home Secretary says he wants to do—that is, to stop the flood of utterly pornographic material for which no excuse or defence could be made. If that is what the Home 352 Secretary solely wanted to do, he could have got through the Bill in much less than the 11 hours' discussion, because he could have devised the Measure differently and he could have considered earlier the prelude to the 1959 Act.
I do not suppose that there has ever been a Private Member's Bill which was passed through the House of Commons that was so meticulously examined before it was presented to the House. We had Select Committees, discussions, debates on the Reports of the Select Committees and the full paraphernalia of debate on the Bill. As a result, a compromise was reached between hon. Members who think that it is right to take this kind of severe Measure as the best way of stopping the spread of this pornographic material and those who are more concerned about the protection of literary merit. A compromise was reached between these two ideas. The Bill that was introduced in 1959 did not satisfy my hon. Friend in any particular and it did not satisfy the Government in every particular, but an intelligent compromise was reached.
Therefore, when the Government, with a few weeks or months to spare at the end of a Session, which they thought might end earlier, had to pick Bills out of the pigeonhole, they had a responsibility, and the responsibility was primarily upon the head of the Home Secretary, to ensure that they behaved fairly towards that compromise. Had the Home Secretary introduced a Bill which said that all he wanted to do was to see how the Measure had operated since 1959, and to strengthen the police powers against the spread of pornographic material, but, at the same time, to inflict no injury whatever on the principles that my hon. Friend had established in his Bill—
§ Mr. Deputy-Speaker (Sir William Anstruther-Gray)
Order. I am sorry to interrupt the hon. Member, but he will bear in mind that this is a Third Reading debate and that he cannot discuss what is not in the Bill.
§ Mr. Foot
I hope that I was not doing that, Mr. Deputy-Speaker. Certainly, I was not intending to do so.
I was saying that if the Bill which is before us represented fairly the compromise that had been reached in the 353 1959 Act, and was solely concerned to to deal with loopholes which had arisen, it would have gone through swiftly and we would not have got into the arguments of the sort I have had with the hon. and learned Member for Surrey, East; because none of us cares very much as long as the measures taken against the pornographic trash do not interfere with the publication of reputable literary matter.
The hon. and learned Member for Surrey, East, does not agree with that very much. But apparently many hon. Members opposite do not agree with it, because, throughout the whole of the proceedings on the Bill, with the honourable exception of the hon. Member for Norfolk, Central (Mr. Ian Gilmour), they have made no effort to safeguard the position from this point of view.
Events have occurred since 1959 which were never foreseen then. Primarily, the situation is that a magistrate operating alone is able to decide whether a book like "Fanny Hill" should be published or not. The peril of the Bill is that its condonation of this state of affairs will interfere with free publication in future.
This is not a question which is merely concerned with the books that have already been dealt with under the law. It is not merely concerned with the books that may come before the law in the next few years. It is concerned with a whole series of decisions that publishers have to take about all kinds of books they will publish.
It is no good the Home Secretary suggesting, as he did, that there is no impairment of the protections under the 1959 Act. The advice which lawyers now give to publishers as to what they can safely publish has been altered by the "Fanny Hill" case and even more by what is being done in the Bill and by the Government's persistent refusal, both in Committee and on Report, to accept Amendments we have put forward.
If the Government think that the position is not altered, that the position in the publishing trade is not affected, then that merely shows that they are completely ignorant of what has occurred and have made no effort to discover how this Measure is likely to affect the legitimate, decent publishing trade. This is illus- 354 trated by the letter from one of the most eminent publishers in the country, which has been quoted tonight.
There is, however, one way—and I hope that it will happen—in which the dangers which the Government have refused to guard against can be overcome, and that is by the courage of the publishing trade itself. They will only be able to safeguard their position by refusing to knuckle under to the kind of atmosphere the Government seek to create, by having the courage to stand by the authors they think should be published, by using to the maximum the protections that still remain from the 1959 Act, even though these are being injured by the Bill.
I hope that the publishers, despite the fears aroused by the way in which the Government have behaved in this matter, will not be led by this kind of atmosphere into reintroducing the kind of stringency in publishing which prevailed before 1959 and which led to the introduction of the 1959 Act.
If the right to publish freely in the freshened atmosphere introduced by the 1959 Act is retained, it will be due to brave publishers who believe in freedom, people who have to take risks to preserve freedom, and not to a Government who have taken no risks, but have squalidly sought to use the natural antagonism towards filthy pornography to injure the rights of legitimate publishers.
Those members of the Government who may be slightly less barbarian than others cannot be proud of what the Government have done in the Bill. Before it is passed perhaps they will think of all the authors who had to suffer at the hands of the same kind of people which the 1959 Act was designed to protect them against. These people have spent their lives trying to produce a book which they have got in them, in which they think they have something to say to the world—something unique in many cases. They have had to spend the agony of their souls producing them. James Joyce was such a person; D. H. Lawrence was such a person. These people spent their lives producing one or two books.
Some of those books have, in the past, been suppressed by censors; the authors have had their livelihoods taken away by the censors, who are not prepared to 355 allow freedom to print. After the deaths of many authors whose books have been suppressed in their lifetimes, those books have made fortunes. I do not know whether any hon. Member opposite feels that that kind of suppression is a small matter. Some of my hon. Friends and I do not think that it is. We think that some of the people to whom the Bill may apply are the most important people who have ever lived. They have something fresh and original and unique to give to the world.
These are the people who have to be protected and safeguarded, and who should not have their livelihoods taken away from them—as can happen from this form of suppression. This can be distinguished clearly from any question of stopping pornographic trash. But the 356 Government do not care what happens to this kind of people. History is littered with the stories of authors who have had their precious productions destroyed by people with the same kind of mind as the Home Secretary.
We have been dealing with a subject which is beyond the right hon. Gentleman's range and outside his understanding. I hope that when a future Government deal with these matters they will be more careful, and understand that they are not dealing just with the question of pornographic trashy floods of material pushed on to the market for the exploitation of the young or the old, but also dealing with something much more important—something to which they should be prepared to bring a discrimination and a care which we do not expect from the present Home Secretary.
§ 10.37 p.m.
§ Mr. W. R. Rees-Davies (Isle of Thanet)
I did not intend to intervene, and I shall be very brief, but I cannot allow the sort of autocratic speech to which we have just listened to go without comment. The hon. Member for Ebbw Vale (Mr. M. Foot) was no doubtsincere, but he charged not only the Government but the greater part of the country with being a bunch of barbarians. I do not think that he has the experience which he claims; I very much doubt whether he has the experience that I claim in this matter.
I ask him whether he wants the removal of censorship of the theatre and the films. If he is asking for the removal of censorship of the theatre, I wonder whether he has had the opportunity to listen to or read—and read aloud—any of the pornographic plays which are submitted regularly to the Lord Chamberlain, and which I have had the misfortune of having to read.
If he had read that class of material he would have realised how much responsibility lies with the Lord Chamberlain, for many playwrights today are concerned solely with trying to push pornography for the purposes of profit. There can be no doubt that the removal of the powers of the Lord Chamberlain from that field would lead to a mass of prurient muck being thrown around the country.
The hon. Member can see what these so-called artists write. If he wants that opportunity, I am sure that he can get it from Colonel Payne. He will be able to see the way in which these authors steadily try to erode the standards of playwrights in this country. The Bill is not merely about James Joyce, or D. H. Lawrence; it is about the cinema bleu—and we have to have a French name for the type of perversions which are purveyed by that class of film. The Bill is concerned with the filthy postcards which are usually associated with Port Said and the parties who engage in perverted practices. It is the whole realm of real filth. It is idle to say that these matters ought to go for trial by jury or at the assize courts. In 99 cases out of 100 that class of material can be condemned by the magistrates. They must have the powers which the Bill will give 358 when it becomes an Act to enable them to carry into effect the rapid suppression of that class of material.
Therefore, the only real issue which is debatable is a very narrow point, the question whether, in a genuine borderline case—the typical class of case being "Lady Chatterley's Lover"—the brake should be applied by administrative action, or by this House. I said in Committee, and still hold the view, that it would have been better to have done it by an Amendment, but we have had the assurance by the Solicitor-General that where there is a genuine case that opportunity will be given to the publisher and the author to go for trial by jury and raise the defence under the Act. I rise merely to reiterate that that was my understanding of the assurance given by the Home Secretary. I am sure that any Government of the day will honour it.
In those circumstances, the speech to which we have just listened seems too autocratic by far and one far beyond what the hon. Member, when he has an opportunity to reflect, will see was warranted by the occasion. In his attack on the Home Secretary he was quite unjustified. On all these matters the Home Secretary has had the advice of judges, lawyers and those who have to try to suppress the 99 per cent. of material which, I think, on reflection, the hon. Member will realise ought to be suppressed by administrative action.
§ 10.42 p.m.
§ Sir Cyril Black (Wimbledon)
I welcomed the Bill on Second Reading. The hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) was quite correct in pointing out that I have not intervened since making that speech on that occasion. He was also correct in the reason he attributed to me for my silence. It is that I have been very well satisfied with the unwillingness of the Home Secretary to accept wrecking and weakening Amendments to the Bill. For that reason, I felt it unnecessary to prolong the proceedings by making speeches.
I was anxious, as I believe the great majority of hon. Members and also the great majority of members of the public are, that this Bill should reach the Statute Book and become effective in law at the earliest possible moment. For that reason it seemed that I was helping 359 the purpose I had in view by not intervening in debates in which no intervention by me was necessary. I have never held the view that the best contribution to the work of the House is necessarily made by those hon. Members who make interminable speeches or speeches of inordinate length. The purpose of the House is to pass useful legislation. I believe this to be a useful Bill and I commend the Home Secretary and the Government for having introduced it.
I have no desire to raise the temperature of this debate. There is no reason why I should. I do not want to castigate hon. Members who hold the point of view expressed this evening and on other occasions by the hon. Member for Ebbw Vale (Mr. M. Foot) and the hon. Member for Pontypool (Mr. Abse). I have listened to their speeches and tried to understand their point of view. They will not expect me to agree with them. Their point of view is vastly different and very far removed from mine, but, of course, I recognise their right to hold that view and, holding it as they do, I recognise their right to express it.
The only thing I would say is that, holding the views that they have expressed on Second Reading and tonight and in Committee, I find it very surprising that they did not divide the House on Second Reading, because practically everything they have said has been critical and condemnatory of the Bill, and not only in detail but on the general principles embodied in the Bill. If I had felt half as strongly as they apparently felt in their Second Reading speeches, I would certainly have divided the House against the Second Reading. If I had felt as strongly against the Bill as they have shown themselves in their speeches this evening, I would certainly vote against Third Reading. I think that we in this House, and members of the public at large, are not very far off the mark in coming to the conclusion, if they fail to divide the House against Third Reading, that the speeches they have made are full of sound and fury, signifying nothing.
In a few moments, they will have the opportunity to put the matter to the test, when they will have the opportunity, if so minded, to vote against the Third Reading, and inasmuch as we have 360 already been told that there is no Whip on the other side, and that hon. Members are quite free to exercise their own independent and personal judgment, it will not require any conspicuous act of moral courage on their part for them to decide to divide tonight against the Third Reading of the Bill.
Most of the speeches which have been made tonight have been by those critical of the Bill, or opposed to its proposals. But I would like to assure the Home Secretary that he has a very solid backing of opinion in the country in favour of what he is doing. This Bill is favoured and supported by all the main Church bodies and organisations who have been pressing the Home Secretary for some time past to deal with the flood of pornographic trash which has been coming on the market in increasing volume.
The leaders of the Churches who are engaged in dealing with the problems arising from the moral condition in the country, know at first hand of the harmful effects of this literature, especially upon young people, and I cannot understand the suggestions which have been made at various stages in our discussions that there is no evidence to support the view that young people are injuriously affected by obscene literature.
If this is so, it is surprising that hon. Members, including myself, have been receiving for a long time past numerous letters from school teachers, ministers of religion, youth workers, social workers and people of that kind who are in everyday touch with young people and the problems and temptations that they face at present. They have been insistent in urging hon. Members to press the Government to bring in legislation to deal with this particular evil.
I believe that the Home Secretary has done an excellent piece of work in introducing the Bill and in refusing weakening and wrecking Amendments. Someone has said this evening that the Home Secretary is engaged in various cleaning-up operations. If that be true, it is not something of which he has occasion to be ashamed, because at present there are various aspects of our national life which are very much in need of cleaning up.
The Home Secretary, I know, is very conscious of this need and I am quite certain that he has the backing of the majority of the House and of the public 361 in any Measure that he may think it necessary to introduce to deal with this cleaning-up process.
I am not in the slightest degree impressed by the apprehensions and protests of publishers and booksellers who, after all, have a financial interest in the business. Big profits are being made in it. Publishers and booksellers are entitled to state their views, but we are entitled to take into account the fact that they have a personal financial interest in the business, and we have to decide whether their personal financial interest has to be weighed in the scales against what most of us believe to be the overriding need of the public and the protection of our young people at the present time—
§ Dr. Horace King (Southampton, Itchen)
I support the Bill, but I would ask the hon. Member, on reflection, to ask himself whether he is fair in suggesting that any reputable publisher is financially interested in the pornography that we are trying to destroy by the Bill.
§ Sir C. Black
Not the reputable publishers, no, but I think that some hon. Members opposite would be willing to attribute that adjective "reputable" to some publishers whom others of us might not regard as coming within that category.
I believe that the Bill is supported by an overwhelming majority of the people, and I do not think that the kind of critical speeches that have been made at all stages by hon. Members opposite will be to their advantage or their party's advantage in the future.
§ 10.52 p.m.
§ Mr. Paget
The Bill has been advanced very largely as a protection for youth. I do not believe that pornography is primarily of interest to those who can; it is of interest to those who cannot—not to lusty youth, but to failing age. So let us put that bit of hypocrisy aside.
I do not like the Bill, because it is a Bill to strengthen the law for preventing publication. I do not like laws for preventing publication; I do not want to strengthen them. I believe that censorship is wrong, and for three reasons. The first is that someone has to select—the censor has to select. When one finds a censorship, one finds the oddest selec- 362 tions. I should have thought that amongst the sadistic trash that has come on to the market, the selection of the eighteenth century frolic "Fanny Hill" was an illustration of the absurdities of selection once one adopts a censorship.
Secondly, I doubt the right of the mature and wise to choose what is good and what is not good for the reading of those whom they decide are immature and unwise. I doubt the right of superior people to decide what they think is good for inferior people, and that is basically what we are doing. Pornography is available to all of us, as much as we want it. Nobody will try to prevent us from seeing anything we want to see.
As the hon. Member for the Isle of Thanet (Mr. Rees-Davies) said, we can go to the censor of plays and see all the dirty plays we want. That is because we are superior people. The Home Secretary has doubtless read a good deal of pornography. If he has not, then he! has no business to be here asking for a Bill to strengthen the law for preventing it. I ask him: "Has it corrupted him? Why, then, should he assume that it corrupts other people? Why should we, the superior people, who can see as much of this as we like, make this arrogant assumption that it will corrupt the inferior people?
The argument is almost the same as the argument of those who said that the Bible was all right in Latin, which was the language of the educated, but that it must not be translated into the vernacular because it would corrupt the ignorant who did not understand it. That is the same argument as saying that "Fanny Hill" is all right at 38s. 6d., but is wrong at 3s. 6d. It is an argument which I cannot accept.
§ Mr. Rees-Davies
Is the hon. and learned Gentleman arguing that a father should have no right of censorship over his teen-age son and daughter and no responsibility as to the selection of their reading matter?
§ Mr. Paget
As the father of a number of teen-aged children, I have never been rash enough to attempt the smallest censorship, nor would I ever dream of doing it, for the simple reason that I am certain that it would not work. Equally. I am certain that the Government's effort will not work. Censorship does not 363 work. We shall touch only a dribble of the pornography which becomes available, but by forbidding it we make it attractive because it is forbidden. We put a kind of scarcity value on it by limiting the channels which will handle it. By that we push up the profits and we push up its attractiveness—and we prevent nobody who wants it from getting it.
That is the trouble with this legislation. It will fail. It will put up the profits. It is to the advantage of the pornographers, but I believe that it is to nobody else's advantage.
§ 10.59 p.m.
§ The Joint Under-Secretary of State for the Home Department (Mr. C. M. Woodhouse)
The Bill is substantially the same Bill as that which was presented to the House on Second Reading, and in winding up the concluding debate, I have not a great deal to add to what I then said. As one who has attempted to be both a writer and a publisher and who is, in fact, a parent. I should like to assure some hon. Members opposite who have spoken that it is my impression that their fears are extravagant. I question whether, in some cases, they have not failed to study the Bill with the due care which it requires, a fault with which, with the utmost respect, I must also charge the correspondent of the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins). The complaint of Sir Stanley Unwin against the Bill was completely answered by my hon. and learned Friend the Member for Surrey, East (Mr. Doughty), but, of course, I am not in possession of the other points which Sir Stanley may have made.
The fact that the Bill has passed through its Committee and Report stages with only two Government Amendments and one Opposition Amendment does not prove that the Government, in promoting the Bill, are guilty of any of the wrongs that have 364 been attributed to us. It certainly does not prove, for instance, as the hon. Member for Ebbw Vale (Mr. M. Foot) argued, that the Government are disinterested in literary freedom. As I pointed out on Second Reading, the defence of literary merit remains exactly as it was under the 1959 Act. Nor are the Government seeking to bind the country to what the hon. Member for Pontypool (Mr. Abse) described in Committee as the standards of the Mothers' Union. Personally, I have a good deal more respect than the hon. Member has for the Mothers' Union. We have certainly not adopted the standards which he has attributed to us.
The state of the Bill after the Committee and Report stages shows that it was well drafted for its purpose, which was, as set out in the Explanatory Memorandum, simply to block up three gaps in the law embodied in the 1959 Act which had been revealed by decisions of the courts. The hon. Member for Stechford rightly recognised that there were imperfections in the 1959 Act, and those are the imperfections which we are seeking to remove.
The hon. and learned Member for Derby, North (Mr. MacDermot) made a number of points in his speech, but I think that the one on which he would particularly seek a reply tonight was the matter of disclaimers. I am glad to take this opportunity of describing the system more fully than it was described in the paragraph from the memorandum of the Commissioner of the Metropolitan Police which the hon. and learned Member quoted. The procedure, briefly, is that where the police have seized articles under Section 3, whether or not on the ground that they are obscene and kept for publication for gain, it is then the normal practice in the Metropolitan Police District for the occupier to be asked whether he wishes to contest proceedings for forfeiture of the articles. It is found, in practice, that the occupier often wishes to avoid the publicity which results from court proceedings. He is then invited to sign a form disclaiming his interest in the articles.
There is no standard form for this purpose. The type of form commonly used was described in the Commissioner's memorandum and is in the minutes of 365 evidence, so I will give an abbreviated description of how the procedure works and its advantages to the court. I emphasise that this is not a procedure for by-passing the courts. The disclaimer is not, as suggested in Standing Committee, a dishonest document. I think that the hon. and learned Member for Derby, North substituted the expression "fiction" later. I would not accept that description, either. It is not a pretence that the occupier had never owned the articles. It is a document which simply disclaims interest for the future, and it has no retrospective operation.
Furthermore, the circumstances of the disclaimer are then brought to the notice of the magistrate who issued the search warrant. If he then decides not to issue a summons under Section 3(3), the material is retained by the police and there are no further proceedings under the Section. Where, however, the occupier of the premises from which the material was seized wishes to contest proceedings for forfeiture, the magistrate is then invited to consider the issue of a summons calling upon him to show cause why it should not be forfeited.
That procedure, as the hon. and learned Member was told in Committee, has the approval of the Chief Metropolitan Magistrate. It is not followed everywhere, but it is used in some other places besides the Metropolitan Police District and it is open to magistrates elsewhere to adopt a similar procedure if they so wish. It is, incidentally, a procedure which is not confined to proceedings under the Obscene Publications Act, as the hon. and learned Member will see on page 78 of the minutes of evidence to the Select Committee.
That procedure is not merely advantageous and acceptable to those concerned. It is practically the only possible procedure in many cases, because the volume of material seized is sometimes so great that it is doubtful whether the metropolitan courts could accept delivery of all the material taken possession of by the police. As, unfortunately, for reasons which have come out in debate, the quantity of such material has been growing in recent years, the disclaimer procedure has certainly not diminished in the scale of its use since 1957.
The essential point which I emphasise is that all obscene material seized under 366 Section 3 is dealt with only as approved by the court. There is no question of the disclaimer procedure being used by the police, again to quote the hon. and learned Member's words, quietly to achieve their object: in other words, as a means of securing forfeiture without the magistrate's knowledge. It does not have this effect. It seems to us that if the magistrate, the police and the person from whom the obscene articles are seized are all content that the matter should be dealt with in this way, there can hardly be grounds for complaining. I must certainly make it clear to the House that there is no intention of departing from this procedure at the present time.
The hon. and learned Member also referred to the fact that comparatively little information had been given in our debates about the scale and character of the trade in pornography. I refer the hon. and learned Member to another occasion when I gave a fairly detailed description of the trade, in an Adjournment debate on 3rd December, 1963, where he will find information which will usefully supplement the lecture or speech which he reported from the words of the Deputy-Director of Public Prosecutions.
There has seemed to me to be misunderstanding on the part of some hon. Members of the intended effect of the Bill. I listened carefully to what the hon. Member for Ebbw Vale said on this point. I had the impression that what the hon. Member was saying he wished that my right hon. Friend the Home Secretary had set out to achieve was very nearly a verbatim repetition of what I said on Second Reading that we were setting out to achieve. I will repeat two or three sentences from the conclusion of that speech, which I hope, will make the matter clear. I said, on 3rd June:I wish again to emphasise that the Bill is intended primarily to deal with books and magazines which no reasonable person would judge to have any conceivable literary merit It is not directed to the case of serious literary works of the kind which the original sponsors of the 1959 Act were anxious to protect. The protective provisions written into that Act are left untouched by the present Bill: it neither strengthens nor weakens them. Nor does it alter in any material way the principles on which the law rests, and which Parliament adopted at that time after exhaustive examination of the whole of this intricate subject."—[OFFICIAL REPORT, 3rd June, 1964; Vol. 695, c. 1149.]367 I would confidently assure the hon. Member for Ebbw Vale and the hon. Member for Stechford—and here I believe that I am echoing the remarks made in an intervention by the hon. Member for Southampton, Itchen (Dr. King)—that the reputable trade has nothing whatever to fear from the Bill, which contains nothing that was not already in the intention of the 1959 Act.
I believe that the public will support, and does support, the principles underlying the Bill, as I said on Second Reading, and as many of my hon. Friends on this side of the House have emphasised in their contributions to the debate. I believe, also, that it will be effective for its purpose.
§ Question put and agreed to.
§ Bill accordingly read the third time, and passed.