§ Order for Second Reading read.
§ 5.56 p.m.
§ The Joint Under-Secretary of State for the Home Department (Mr. C. M. Woodhouse)
I beg to move, That the Bill be now read a Second time.
This Bill is designed to remedy certain defects that experience has shown in the working of the law on obscene publications, as contained in the Obscene Publications Act, 1959. It is not intended to make any change in the basic principle of that Act, which derive substantially from the recommendations of a Select Committee appointed by the House in 1957. Those recommendations were intended to bring greater certainty into the law by the adoption of a statutory test of obscenity dependent on the corrupting effect of the book or other article on the persons likely, in all the relevant circumstances, to read, see or hear it.
They were also designed to serve two other main purposes. One was to afford a measure of protection for works of literary, artistic or other merit by introducing a special defence of publication for the public good. The other was to strengthen the powers available to the authorities for suppressing the traffic in pornography These recommendations formed the basis of the Act of 1959, which was introduced as a Private Member's Measure by the hon. Member for Stechford (Mr. Roy Jenkins), whom I am happy to see in his place. The purposes I have mentioned were, indeed, made explicit in the Long Title of the 1959 Measure.
The Government gave assistance during the several stages of the Bill's passage through Parliament, and were instrumental in having it amended in certain particulars. In its final form, therefore, it was the product of the combined efforts of private Members and the Government. Deriving, as it did, from a series of compromises, and in a number of cases from the introduction of Amendments drafted with different, and even conflicting, purposes in the minds of the hon. Members who put them forward, it is not surprising that the Act has shown some imperfections in practice.
1144 We have now had about five years' experience of the working of the Act, in the course of which certain technical defects have, by common consent, been exposed. It is the limited purpose of this Bill to remedy those defects. Although it is a matter on which opinions may differ, it has seemed to the Government that the provisions of the 1959 Act are effective to protect works of genuine literary, artistic or other merit. This should not, I think, be judged in the light of one or two disputed cases that have attracted publicity, but as a whole. Taken as a whole it appears that the effect of the Act, whether directly or indirectly, has been permissive to works having or claiming literary merit. Indeed, there is a considerable section of public opinion which believes that it has been too permissive.
The provisions of the 1959 Act to some extent represented a compromise between, on the one hand, the need to prevent the circulation of obscene material which might have harmful effect and, on the other, the desire to reduce as far as possible the restraints on personal liberty. In the Government's view, the compromise then reached, while, naturally, it has not pleased everyone—and it has been criticised from both directions by different people—has worked out not too badly in practice. In bringing forward this Bill, therefore, it has not been our intention to disturb the compromise or the arrangements to which the 1959 Act gave effect.
Our limited object is, as I have said, to remedy the defects brought to light by judicial decisions. I am, of course, well aware that some hon. Members might like to see more fundamental changes made, in one direction or another. My right hon. Friend the Home Secretary has asked me to apologise to the House for the fact that he is unable to be present this afternoon because of a long-standing official engagement in the north of England. I would emphasise that this engagement has not been in the constituency of my right hon. and learned Friend the Solicitor-General, who will be winding up the debate. My right hon. Friend asked me also to give an assurance that he will consider carefully any views which hon. Members may express or any suggestions which they may put forward.
1145 It is clear that the Act has been less effective than Parliament had intended in checking the dissemination of pornography for which no literary or other merit could possibly be claimed. Defects have been exposed which have had the unfortunate effect of handicapping the police in the discharge of their responsibilities. I am sure that the House will share the Government's view that these defects should be remedied without delay.
It will be recalled that my hon. Friend the Member for Belfast, West (Mrs. McLaughlin) initiated a debate on the Adjournment on the subject of obscene publications on 3rd December last year. I took the opportunity then of explaining how the law operated and the steps which had been taken by the authorities under existing powers to check the increasing flood of pornographic material. Without going over all the ground which I went over in that debate, it may help to illustrate the size of the problem if I remind hon. Members of some of the figures which I then gave.
Since the beginning of 1961 over 1 million books, representing over 1,000 different titles, had been seized as obscene at the ports under Customs legislation, and a further 360,000 books had been forfeited by courts following the institution of proceedings under the Obscene Publications Act. These figures obviously represented a considerable effort by the enforcement authorities. It is a distasteful task, and the task has to go on, but the police will be severely handicapped as long as the gaps in the law which I will describe are allowed to remain.
I do not intend to recapitulate all the terms of the 1959 Act, but perhaps I might remind the House of the test of obscenity set out in that Act. It is as follows:For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct articles) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it.Hon. Members will observe that this test is not absolute. It requires the court, in determining the corrupting tendency of a work, to have regard to 1146 the circumstances of publication, or intended publication.
The effect of this is that a book which may lawfully be published to adults may be adjudged obscene in the hands of young persons, or, to take another example, what is fit for a member of the medical profession may be obscene to the layman. That is the basic principle on which tie law of obscenity rests, and it is important to remember it in considering the defects in the present law and the proposals in the Bill for remedying them.
I did not have the good fortune to take part in the earlier debates, but I have studied very carefully everything that was said in the Select Committee, in the House itself, and in the Standing Committee which considered the 1959 Bill. Having read all the debates very carefully, I was particularly struck by the care and assiduity with which hon. Members addressed themselves to trying to foresee and forestall every imaginable case in which the Act might go wrong in its application. But it was impossible to foresee everything.
I observed that hon. Members were much exercised by the possibility that in particular cases the courts might find that there could be no corruption of a particular person because that person was already totally corrupt. They did not contemplate the more paradoxical possibility of the courts finding that there could be no corruption of a particular person because that person was vocationally immune from corruption. Yet that is exactly what happened.
The principal defect in the Act flows from the decision of the Court of Criminal Appeal in the case of Regina v. Clayton that there is no offence of publishing an obscene article under Section 2 of the 1959 Act where the act of publication charged is to a person who, because of his experience and maturity, is not susceptible to the article's corrupting qualities. The person concerned in that case was a police officer.
Following this decision, the police can no longer base prosecutions on test purchases of obscene material made by police officers, and it is frequently impossible to get evidence of publication in other ways. There were also two other defects revealed by the courts. In Mella v. Monahan, 1147 the Divisional Court held that the exposure of priced articles in a shop was not an offer for sale and so not a publication of the articles within the meaning of the relevant Section of the 1959 Act, and consequently a display of obscene matter was no offence under the Act.
Finally, in the case of Straker v. Director of Public Prosecutions, the Divisional Court held that photographic negatives could not be forfeited under the procedure provided under Section 3 of the 1959 Act since the negatives themselves were not intended to be published for gain. Hon. Members will observe that the effect of the first two cases is that a criminal prosecution cannot be brought in the absence of evidence of actual publication of an article to a person who can be shown to have been liable to be corrupted by it.
While it may not be difficult to obtain evidence of sales, evidence of sales to persons liable to corruption may be exceedingly difficult, if not impossible. The persons who may be expected to complain to the police about the book which they have purchased are not likely to be themselves susceptible to any corrupting qualities it may have.
In these circumstances the substantial penalties which Parliament intended should be available to deal with purveyors of pornography cannot be inflicted by the courts. In many cases the only course open to the police under the Act is to bring proceedings for forfeiture. In such proceedings it suffices to bring evidence that the articles are being kept for publication for gain in circumstances from which it appears likely that they would be published to persons liable to be corrupted by them. But forfeiture alone is not an adequate deterrent. The loss of obscene matter is something which the commercial traffickers in pornography have been prepared to bear in the knowledge that the sanctions of the criminal law are unlikely to reach them.
Moreover, as the Straker case illustrates, there are limitations to what can be forfeited as the law now stands. It is obviously a relatively simple matter to run off further obscene prints from a negative to replace prints forfeited by order of the courts. The control would be more effective clearly if the courts had 1148 power to forfeit negatives as well as the prints.
This, then, is the background of the Bill, to which I now turn in detail. Clause I will remedy the weaknesses in the law disclosed in the first two cases which I mentioned, by creating a new offence of having an obscene article for publication for gain. This offence will carry the same penalty as the existing offence under Section 2 of the 1959 Act of publishing an obscene article, namely, up to three years' imprisonment and a fine on indictment, and six months' imprisonment or a £100 fine on summary conviction. It will be subject to the same defences as the existing offence, including the defence under Section 4 of the 1959 Act that publication of the article is justified as being for the public good on the ground that it would be in the interests of, inter alia, literature.
The enactment of this new provision will clearly dispose of the difficulty caused by the decision in Mella v. Monahan that the exposure of an article for sale in a shop is not an offer for sale and does not, therefore, constitute an offence of publication under Section 2 of the 1959 Act. The exposure will be evidence that the article is for publication for gain.
The new provision will also overcome the difficulty which arises out of the Clayton case, what has been called the case of the incorruptible policeman. Clause 1(3,b) provides that for the purpose of the new offence the question whether an article is obscene is to be determined by reference to any publication which may reasonably be supposed to have been in the contemplation of the accused.
Briefly, I interpolate here that towards the end of Clause 2 there is a misprint. The reference to Section 1(2,b) should read as a reference to Section 1(3,b), and it will be necessary to correct this later,
Any sale, to a police officer or to any other person, will be evidence that the article is being kept for sale to the general public; and it will not be necessary to prove, as it is at present, that the purchaser himself is susceptible to corruption. The Clause also, by subsection (4), requires a court convicting of the new offence to order the forfeiture of the articles concerned, thus obviating the 1149 need to obtain a separate forfeiture order from a magistrate under the powers available under the present Act.
Clause 2 of the Bill goes on to deal with photographic negatives and other articles, for example, moulds and the "skins" from which copies of a duplicated document are taken, designed for the reproduction or manufacture of obscene articles for gainful publication. The effect of the Clause is that negatives, moulds, and so on, intended to be used for this purpose will be liable to seizure, and it will also be an offence to keep them with that object. This provision will remedy the defect in the law exposed by the decision in Straker's case.
There is also a provision providing for the determination of the obscenity of the articles by reference to the circumstances in which the articles to be manufactured from them are likely to have been published.
My right hon. Friend and I have received a large number of complaints both from hon. Members on both sides of the House and from the general public protesting about the volume and widespread distribution of pornography up and down the country. My right hon. Friend entirely shares the concern that has been expressed on this question, and he is determined to see that the law is adequate to protect people, and especially the young, from the possibility of corruption by this undesirable material.
The Government consider that it is imperative that the enforcement authorities should be given adequate powers to suppress this harmful traffic, and careful examination of all the relevant issues has satisfied them that the Bill now before the House contains all the additional powers that are needed for that purpose.
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 1150 which the law rests, and which Parliament adopted at that time after exhaustive examination of the whole of this intricate subject.
I am confident that hon. Members on both sides will support the Government's objectives in seeking to impose additional checks on pornography, and I accordingly invite the House to give its approval to the Bill.
§ 6.15 p.m.
§ Mr. Niall MacDermot (Derby, North)
I think I am right in saying that this is the first time for over 100 years that any Government have taken the initiative in presenting an obscene publications Bill to Parliament. It was Aristotle, I think, who said that courage was not the opposite of fear but was the golden mean between fear and temerity. I do not know whether the Government's action on this occasion is to be classified as an act of courage or an act of temerity, but, whichever it may be, it is a matter for great regret that the Home Secretary is not here himself to introduce the Bill, explain it to the House and seek to justify it.
I say that because I wish to make clear at the outset that, grateful as we are to the Under-Secretary of State for the very clear way in which he has presented the Bill and the Government's view of it, I for my part cannot accept his statement that the Bill in no way departs in principle from the admittedly agreed compromise Measure which resulted in the 1959 Act.
Unlike the 1959 Act, the present Bill is not, as far as I know, the outcome of any widespread public discussion or concern calling for amending legislation. We know that the extent to which pornographic literature is being sold has been raised and that concern has been expressed that more effective steps should be taken by the police to deal with it. What we have to consider is whether the powers sought under this Bill are really necessary for that purpose.
I should make two matters clear at the outset. First, in what I say I am speaking only for myself and not on behalf of the party to which I belong. The view which my right hon. and hon. Friends take, which I fully share, is that the subject matter of this Bill is one which ought properly to be left to a free vote 1151 of the House, as was the 1959 Bill which resulted in the Act which it is now sought to amend. I hope that on the Government side the same view will be taken and that we shall find this matter freely discussed and decided by individual hon. Members. There is no party issue involved at all.
Secondly, I wish to make perfectly clear that in any questions which I may raise or views which I may express, the last thing I want to do—I am sure that all hon. Members feel the same—is to impose any unreasonable fetter upon the police or the Director of Public Prosecutions in dealing with the trade in pornography. There have always been differences, and I am sure that there always will be differences, on how far the arm of the law should extend in restricting the publication of matters dealing with questions particularly of sex; but I think that all of us, or almost all of us, are agreed that there is a vast field of pornographic dross which no one would seek to defend at all, what Lord Birkett called, in the previous debates, dirt for dirt's sake.
Nevertheless, while we do not want to hamper the police unreasonably in dealing with what, I think, was happily referred to as "pure pornography," it is important that we do not forget our equal responsibility to seek to preserve the fair, moderate and humane character of our criminal law, to preserve the freedom of genuine artistic and literary endeavour and to protect them from the unduly censorious attitude of the prim and the prudish. It is the old problem of finding the right balance in the conflict between preserving freedom and preventing the abuse of freedom.
The first comment that I make on the Bill is that the Explanatory Memorandum is most misleading. It states—and this was the purport of the Under-Secretary of State's speech—that the purpose of the Bill is merely to remedy certain deficiencies in the Obscene Publications Act, 1959, which have been brought to light by subsequent judicial decisions. That wording is, I suggest, apt in describing Clause 2, but, as I shall hope to show, is quite inapt in describing the fundamental changes in the criminal law which Clause 1 proposes to effect.
The Bill does two things. Clause 2 remedies, quite clearly, a defect which 1152 was brought to light by the case of Straker v. The Director of Public Prosecutions and extends the criminal law to include within the 1959 Act negatives of pornographic photographs as well as the prints which are made from those negatives and similar cases in which pornographic material is reproduced from some master copy. I do not think that any of us realised at the time of the 1959 debates that we had left this gap. I am sure that if we had done we would have closed it. I shall be very surprised if any hon. Member opposes in any way the object of Clause 2.
Clause 1, however, raises much wider questions because it proposes a major change in the law. It proposes for the first time to make people guilty of a criminal offence in relation to obscene publications even though they have never published them to anyone at all. Mere possession will, in the circumstances defined, be sufficient to result in a criminal conviction.
Under the existing law, there are two sorts of proceedings—forfeiture proceedings and criminal prosecution. Forfeiture proceedings are to enable pornographic literature and other pornographic material to be seized and destroyed. It is designed to frustrate the trade in pornographic literature by the seizure of bulk stocks. I imagine that the vast majority of the 360,000 books which the Under-Secretary of State said had been destroyed would all be destroyed under the forfeiture proceedings. In those proceedings, all that the prosecution has to do is to move against the occupier of the premises where the goods are seized that the articles are being "kept for publication for gain"—it has to prove, of course, that they are obscene publications within the definition—and that they are likely to be published in circumstances which would be harmful in the sense defined in the Act, namely, that they would tend to "deprave or corrupt" persons likely to see, read or hear the contents.
But I stress that it is not necessary in those proceedings to prove actual publication. A criminal prosecution under the 1959 Act for publishing an obscene article, like the old common law offence which it largely replaces, does, however, require proof of publication 1153 and, indeed, it is the act of publication which is the essence of the offence—publication in circumstances which are likely to do actual harm to someone. It is important to remember, too, that until the 1959 Act actual publication also had to be proved before even a destruction order could be obtained under the forfeiture proceedings.
It was as a result of representations made by the police to the Select Committee in 1957 that the Select Committee recommended, and Parliament subsequently agreed, that the police should be relieved of the necessity of proving actual publication in order to obtain a destruction order. That is all that the police asked of the Select Committee. At no time did they ask that mere possession should be a sufficient basis for a criminal prosecution and, as far as I know, it was never suggested during the discussion of the 1959 Act.
I therefore hope that the House will agree with me that a change of this kind is not a minor technical change to remedy a defect. It is a basic alteration in the scope of the criminal law on obscene publications. It may be a right thing to do and there may be a good case for it, but if we do it let us recognise what we are doing and let us understand the grounds which justify it. In my submission, a strong case must be made out by the Home Secretary before we extend the criminal law to this extent.
There is a well recognised distinction in the whole of our criminal law between mere preparation to commit a crime and the actual commission of a crime or an attempt to commit a crime. An attempt to commit any crime is a common law misdemeanour and is an offence just as much as the crime. If a prospective criminal goes not further than to prepare to commit a crime, he does not bring himself within the ambit of the criminal law. It is an unusual thing, although it is not unknown, in our criminal law for mere possession of an article to be a criminal offence, whatever may be the motive or intent. If, for example a burglar or housebreaker has housebreaking implements in his home and a policeman by day goes to his house and finds them in his house, although it is clear and, indeed, is admitted by the man that he has them with the intention of using them for 1154 housebreaking, he has not committed a criminal offence and cannot be prosecuted.
With the exception of licensed goods, such as dangerous drugs and firearms, it is rare for mere possession of an article to be the subject of a criminal offence. It happens in the case of offensive weapons provided the possession takes place in public but not in a man's home. It happens in the special case of flick-knives under the 1959 legislation. It is proposed in a Bill which is before the House at the moment that it should apply in the case of certain drugs—I refer to the legislation to deal with the "purple heart" problem—but otherwise it is unusual.
The Explanatory Memorandum seeks to justify this change in the law on the basis of the two decisions referred to by the Under-Secretary of State. The first is Clayton's case in which it was held that no offence was committed under the 1959 Act. In that case publication was made through an experienced police officer who was not susceptible to the article's corrupting qualities. It is beyond my comprehension how that decision can have occasioned surprise to anyone in the, hon. Gentleman's Department or can be thought to have brought to light any deficiency in the law.
That decision went to the root of the basis of the law as this House quite deliberately and consciously decided it in 1959, namely, that the test of obscenity was not to look objectively at the material and to say, "That is obscene" but to look at the circumstances of a e individual publication and say whether the publication of that material was likely to tend to deprave or corrupt anyone. How anyone can have thought, applying that test, that to sell matter to an experienced police officer who for years had been doing nothing but dealing with obscene publications was likely to tend to deprave or corrupt passes my understanding. The matter was made perfectly clear in the debates which we had at the time and it results from the words in the definition Clause which has already been read to the House, namely, that one must test the publication with regard to the persons who are likely, having regard 1155 to all the relevant circumstances, to read, see or hear it.
When the Solicitor-General of the day was introducing those words to the Standing Committee on 4th March, 1959, he said:What we are aiming at…is to leave out of account in any specific proceedings circumstances other than those surrounding the publication that is charged, and the circumstances flowing from that publication.On the same occasion he went on to say:We thought that the right test would be to consider, objectively, who was likely to be reached by the publication, and not, subjectively, what were the expectations of the person publishing it."—[OFFICIAL REPORT, Standing Committee C, 4th March, 1959; c. 11 and 35.]In the light of that wording, it is difficult to see how anyone in the Home Office could have thought of making sale to a police officer a criminal offence.
The second decision was the case of Mella v. Monahan. That was a decision that mere exposure for sale is not an offence since it is not within the definition of publication in the Act. Again, I do not see how anyone can say that that defect, if defect it be, was brought to light by that case.
That omission in the Bill, as it then was, was specifically referred to by Lord Denning in the Second Reading debate on the Bill in another place on 2nd June, 1959, when he said:Let me take another instance, which occurred in Liverpool only a little while ago. A bookseller obtained a perfectly reputable medical book and displayed it in his window, opening it at a page on which there was a diagram of the female sex organs. He did it for the purposes of his trade, to attract people to his shop. That is not covered by the provisions of this Bill."—[OFFICIAL REPORT, House of Lords, 2nd June, 1959; Vol. 216, c. 504.]It was then clearly drawn to the attention of the Government and, presumably, that was deliberately omitted from the Bill.
I take the view that it would be right to extend the law to include exposure for sale in that kind of way in a shop window within the provisions of the criminal law. To achieve that, however, it is not necessary to make the wide change which is proposed in Clause 1 of the Bill. All that would be needed is to add to the definition of publication in Section 1(3,a) of the Act the words:or expose it for sale or for letting on hire".1156 There would be a clear precedent for such a provision in the amending Restriction of Offensive Weapons Act, 1959 (Amendment) Act, 1961, which made exposure of flick knives for sale a criminal offence.
That would, incidentally, overcome the difficulty which the police apparently say they face as a result of the decision that sale to a police officer is not an offence within the Act, because it would not then be necessary to prove a sale to a police officer. All that the officer would need to do would be to prove that the article was exposed for sale and then give evidence to show the type of persons who frequent the shop and who would be liable to be reached by that exposure.
A further reason for not extending the criminal law to mere possession is that extension to mere possession would mean that a person might be convicted of a criminal offence, not for something which he is proved to have done or to have intended to do, but merely for something which the court speculates that he might do. That arises in this way. As has already been stated, no article is obscene per se under our law. It is not obscene in the abstract. It is obscene only in relation to an actual or contemplated publication which is likely to deprave or corrupt someone. This is fundamental to the whole of our law on this subject.
Where there is a prosecution for actual publication, there is no problem; the court can look at the circumstances of the publication and the publication which is likely to flow from it. Where we are dealing with forfeiture proceedings, the position under the existing Act of 1959 is covered by Section 3(7), which states:For the purposes of this section the question whether an article is obscene shall be determined on the assumption that copies of it would be published in any manner likely having regard to the circumstances in which it was found, but in no other manner".That involves an element of speculation as to the likely publication that would flow from the possession. It may, however, be thought that no great harm would result from that because there is no question of any criminal prosecution and no conviction for any criminal offence.
In Clause 1(3,b) of the Bill, however, the provision is thatthe question whether the article is obscene shall be determined by reference to any such publication for gain of the article as in the circumstances he may fairly be supposed to have 1157 had in contemplation and to any further publication that could reasonably be expected to follow from it, but not to any other publication.What someone may fairly be supposed to have in contemplation is hardly a satisfactory basis for a criminal conviction. It is certainly not one that would appeal to the majority of common lawyers. Before we put such provision into our law, we would want to be satisfied that there are very good reasons for it.
I should like the Solicitor-General to elaborate rather more the reasons why the Government want to go beyond merely making exposure for sale a criminal offence and want to extend what has up to now been merely the field for forfeiture proceedings—namely, mere possession—and make that a criminal offence as well. It may be argued that if one merely made exposure for sale a criminal offence, this would not enable the criminal law to reach the man who keeps his obscene publications, as it were, under the counter.
My answer to that is to ask why that should be made a criminal offence if a person does keep them under the counter unless and until he is proved to have taken them out from under the counter and published them to someone in circumstances which are likely to be harmful. That man could effectively be reached by forfeiture proceedings. As long as the police can get prima facie evidence to obtain a search warrant, they can go and search, seize the material, bring it before a magistrate and, unless the defendant can prove justification for himself, obtain a destruction order. Surely, this should be a sufficient and effective means for checking this trade where it is known to exist. Indeed, Lord Chief Justice Parker, in giving the decision of the court in Clayton's case, pointed that out. At the end of his judgment, he said:We appreciate that our decision … may handicap the police in securing convictions for such offences, but, nevertheless, test purchases will enable them to obtain a search warrant and seize obscene material and also in many cases to bring conspiracy charges.I should like to know whether we can be given further explanation of the difficulties which the police have encountered which have led to the proposal 1158 to make the wide change which is proposed by the Clause. It is not something which was asked for by the police before the Select Committee and, as far as I know, there has been no public request for any such powers.
In this connection, can we also be informed what the present practice is with regard to disclaimers? Before the Select Committee, it was explained that, where the police seized obscene material under a search warrant, they frequently did not take forfeiture proceedings. Instead, there was an arrangement by which the owner of the premises—the occupier—would sign a statement disclaiming any interest in or property in the material and it would then be taken and destroyed by the police. This avoided any further proceedings before a court.
I have doubts as to whether this is a very desirable practice. I had thought and assumed that when the police were given the additional powers granted under the 1959 Act the disclaimer procedure would cease. I have been informed—and I do not know whether this is right or not—that that is not so and that the disclaimer procedure is continuing. Is that so or not? Following from it and related to it, if the Government obtain the new criminal offence they seek in Clause 1 of this Bill, what, as a matter of practice, is proposed to be done?
In what circumstances is it thought that the police or the Director of Public Prosecutions will continue to act under the old forfeiture procedure and in what circumstances would they take a criminal proceeding under Clause 1? Why, one may ask, should not the police always prosecute if, as will be the case in any circumstances where they could take forfeiture proceedings, they will have evidence before them of the commission of a criminal offence under this Clause? Who is to decide whether to take criminal proceedings or merely to go for forfeiture? Will it be the police or the D.P.P.? How will they decide and on what principle?
Does it mean that some practice will grow up whereby if a bookseller comes forward, as it were, and does not cause trouble or difficulty, forfeiture proceedings will be launched whereas if he shows fight and wants to contest that 1159 the matter is obscene, or that it would be likely to be published in harmful circumstances, he will be met with criminal prosecution?
It seems to me that all sorts of undesirable consequences could flow from having these two separate procedures running parallel with exactly the same facts having to be proved in both types of proceedings. If the circumstances disclose a criminal offence, will it not be the duty of the police to prosecute? It has been suggested—it was referred to in the Guardian today—that it is necessary to retain the forfeiture procedure so as not to clog the work of the courts because if, in every case, criminal prosecution was to be brought this might lead to many contested cases and would hold up the work of the courts.
I find it difficult to understand that view. After all, under forfeiture proceedings the matter has to be brought before the court and if the defendant wants to contest the issue of obscenity he is perfectly free to do so. If that is the argument, surely it shows that it is not necessary to have the power to prosecute in order to disrupt the trade. If it is intended that, in the majority of cases, the police will continue to proceed by way of forfeiture, one wonders what the basis is of the Government's case for saying that they must have this power to prosecute in order effectively to be able to stamp out the pornography trade.
Another important matter depends on the question as to where the police or the D.P.P. go by way of forfeiture proceedings or prosecution—namely, the question of the right of a decision on obscenity or the defence of literary merit being determinable by a jury. The responsible book trade has been very disturbed recently by the nature of the proceedings in the case of "Fanny Hill". I do not think that anyone contemplated, when the 1959 Act was going through the House, that a test case for a work with serious literary pretensions would arise by way of forfeiture proceedings.
We all assumed that forfeiture proceedings would be restricted to the more obvious pornography and that any serious issue as to obscenity would be tested before a jury. Indeed, the Solicitor- 1160 General of the day told the Standing Committee on the Bill:I want, first, to emphasise that it will be a jury that will decide."—[OFFICIAL REPORT, Standing Committee C, 4th March, 1959; c. 35.]The hon. and learned Gentleman knew, of course, that there could be summary proceedings, but he clearly had in mind that borderline cases—which is what we were discussing—would be decided by a jury. This is a point which some of my hon. Friends may wish to develop further. All I want to say at this stage about it is that if the right to trial by jury is to be secure in all cases, then it can be done in one of three ways. The first is by abolishing forfeiture altogether as a separate procedure and making forfeiture an ancillary order resulting from a conviction for the proposed new offence. The second way is by amending the forfeiture procedure so as to enable the issue of obscenity or literary merit to be referred to a jury. This would mean a considerable procedural change in our law and I can see the difficulties in the way.
The third and perhaps easiest solution, if it could be devised, would be an administrative practice developing whereby, if a serious defence of non-obscenity or of literary merit was raised by the defendant, the police themselves, at the request of the defence and on the advice of the D.P.P., would proceed by way of a criminal prosecution. If that were done, it would ensure that the defence would always have the right to elect for trial and enable the issue to be decided by a jury.
It is important to realise—because there may be misunderstanding—that the decision in Clayton's case would not prevent, in a proper case, what I might call an "arranged" prosecution as a test case, which is rather what happened in the case of "Lady Chatterley's Lover", when, by arrangement, a police officer called at Penguin Books and purchased a copy which was the subject of prosecution in order to test the issue of obscenity or otherwise of the book.
The decision in Clayton's case does not, in my view, stop convenient arrangements of that kind being made. All that would be needed would be a sale by a publisher to a bookseller of a book subject to prosecution, the bookseller making clear 1161 his intention, if allowed to do so, to expose it publicly for sale and to sell it to sundry members of the public who might ask for it.
There is one more matter I wish to touch on briefly. Anxieties have been expressed about resort to prosecution for the common law misdemeanour of conspiracy. At common law, any agreement between two or more persons to commit a crime is in itself the crime of conspiracy. Consequently, an agreement to publish obscene matter is a criminal offence even though no actual publication results. There have been cases, perfectly proper cases, in which people have been convicted and sent to prison for conspiracies to publish obscene matter.
The anxieties which have been expressed cover two points. The first is lest the protection afforded by the 1959 Act by the defence of literary merit should be sidestepped by the prosecution proceeding on a prosecution for conspiracy to corrupt public morals, as was done in the "Ladies' Directory" case. It is important to notice that that was not a case of an obscene publication. As far as I know, no prosecution of that kind has ever been presented when dealing with an obscene publication. All I would seek is an assurance that there is no intention when dealing with obscene matter to proceed by way of a prosecution of that kind for a conspiracy to corrupt public morals but that proceedings will always be taken on a conspiracy to commit an offence under the Obscene Publications Act, which would then ensure that the literary merit defence was available.
The second fear is lest the limits laid down in the Act for punishment, which on indictment are three years' imprisonment or an unlimited fine, might be exceeded by a prosecution for conspiracy. There is no limit to the period of imprisonment which can be imposed by the courts on a conviction at common law of the offence of conspiracy, of course. Perhaps this is a matter more properly dealt with in Committee, but it would be interesting to know whether there have been any cases where a conspiracy conviction of this kind has resulted in any penalty heavier than the three years' maximum provided in the 1959 Act.
I have, offered some critical questions about the scope of Clause 1. I recommend 1162 to my hon. and right hon. Friends that this is not a Bill which we should oppose on Second Reading. The case for what is asked for in Clause 2 is quite unanswerable. Clearly, there is a need for some amending legislation in this respect, and I would consider some amending legislation dealing with the problem covered by Clause 1. However, the Bill goes considerably further than has been suggested so far by those presenting it on behalf of the Government and we will need to consider its terms and scope very carefully in Committee.
§ 6.53 p.m.
§ Sir Cyril Black (Wimbledon)
I welcome the introduction of the Bill. It is a modest contribution in a field in which a more imaginative and far-reaching Bill might have been more useful, but, in so far as it closes certain loopholes which have been revealed in the 1959 Act, it is useful and will serve a useful purpose. I therefore hope that it will receive a Second Reading.
When the 1959 legislation was before Parliament, there was a general hope that it would improve the position about the publication of pornographic literature and would make it easier for the courts to deal with this evil. That Bill was accepted by many people at that time as being a useful piece of legislation. Of course, it is very difficult for laymen, as distinct from members of the legal profession, to understand exactly what the consequences of legislation of this type will be. It is certainly correct to say that many people have been very disappointed with the consequences of the 1959 Act, as those consequences appear to be entirely different from what was then expected by many people.
The position now is that obscene books are reaching the market on a scale which has not been experienced before, at any rate not in this century. Not only are these books coming on to the market on a vast scale, but they are being offered for sale at very low prices, which brings them within the reach of a very wide public, particularly within the reach of many young people.
I am certain that a great deal of literature is being freely offered for sale in bookshops and on bookstalls which would not have been tolerated for a moment in this country as recently as 25 years ago. In the past, we in this 1163 country were inclined to take a rather superior view about the conditions which existed here in these matters in comparison with those which used to exist in Paris. For instance, in Paris in particular, it used to be the case that a great deal of literature was freely available which would not have been tolerated in this country.
However, all my information leads me to believe that the position has now been completely reversed. I am assured by those who ought to know that there are books now being offered for sale in this country by the thousand and the tens of thousands which have been completely banned in Paris, where their sale would not be allowed in any circumstances.
I have already said that one of the most sinister effects of this trade in pornographic literature is that upon many young people who have fallen a prey to this stuff. It is not surprising that we have today a rising tide of juvenile delinquency and a very great increase in illegitimacy, considering the temptations which young people are facing, temptations more serious and more insidious than were faced by hon. Members when we were young. I believe that there is evidence that public opinion has been changing in this matter and that it will greatly welcome the Bill and any further measures which the Government may think it necessary to introduce to deal with what is now generally recognised by the great mass of the people as a situation which can no longer be tolerated.
We hear a good deal today about the misdeeds of a small minority of young people, but I am bound to say that the young people who, in the last few days organised a petition about pornographic literature and presented that petition to the Prime Minister at 10 Downing Street, are to be greatly congratulated on the concern which they have shown in a matter which they realise to be vital to the country's future.
While, for many years, public opinion has been swinging against what were perhaps rightly regarded as the undue restraints of the Victorian period, the time has come when many people feel that the pendulum has swung too far in the other direction and that a halt 1164 must be called. I believe that the Government are taking a useful, if limited, step in the right direction in presenting this Bill.
It is perhaps strange to realise the comparative lack of attention which was given to this matter by Parliament until the Bill was introduced. I suppose that there never was a time when there was so much concern in this country about clean air and clean food. No one will quarrel with that, but we have not shown the same sort of concern about clean books; and it is perhaps relevant to point out that dirty air and dirty food can poison the bodies of men and women, but dirty books poison the soul, which is an infinitely more serious matter.
To be quite fair, I think that we must recognise that a lot of this flood of pornographic literature comes from abroad, a great deal of it, unfortunately, from the United States of America. I believe that Customs and Excise officials are doing what can reasonably be expected of them in seizing these books at the ports and thereby preventing their reaching the market in this country, but it is clear that although they are doing their best they cannot be effective to the point of dealing with this evil in a complete sense.
I very much hope that the Home Secretary will continue his efforts to bring about a change of policy on the part of the authorities in the United States whereby they will take action on their side of the Atlantic to stop these books from leaving their ports so that we are not left with the invidious and difficult task of dealing with the books when they arrive at our ports.
Since the Bill was published, voices have been raised to try to persuade the Government to weaken some of the Bill's modest proposals. I beg my right hon. Friend to turn a deaf ear to any blandishments of that kind, and to refuse in any way to weaken a Bill which, in the view of many people, is only a modest contribution to deal with this evil.
I hope that in Committee there will be an opportunity for a full consideration of Section 4 of the 1959 Act. I hope that that Section will either be repealed, or, if a case can be made out for it not being repealed in toto, that it will, at 1165 any rate, be amended to remove some of the evil that it has done. I shall not develop the argument on that point at any length, because it is, after all, a Committee point, and the matter can be better argued at that stage, but it is clear that the law has been greatly weakened by that Section of the 1959 Act, and I welcome the opportunity which the Bill gives to have it considered in Committee.
I hope that the House and the Government will never forget that huge profits are being made out of this pornographic literature business, and that behind the business there are powerful, faceless, men who will stop at nothing to carry on this monstrous but profitable traffic. I am sure that the Government should have that in mind, and that they should resist any blandishments which may be exercised on them to weaken in one way or another the modest proposals of the Bill.
I am certain that if it is necessary to do so for the continuance of their profitable business the people behind this traffic will employ writers of literary merit instead of semi-illiterates who, at present, are employed to write most of these books, and that if they do so they will endeavour to bring their trade within the protection afforded to them by Section 4 of the 1959 Act.
The whole proposition of Section 4 seems to many people, and certainly to me, to be based on a fallacy, because dirt is still dirt, no matter how beautiful is the casket in which it may be contained.
§ 7.5 p.m.
§ Mr. Roy Jenkins (Birmingham, Stechford)
The hon. Member for Wimbledon (Sir C. Black) contented himself with not coming to close terms with the Bill but with merely deploying in general terms the case for as much restriction as could be imposed at any one time. Therefore, I do not want to reply in great detail to what he said. I was, however, surprised when the hon. Gentleman said that at the time he had been a supporter of the 1959 Bill, which he thought was a reasonable and helpful piece of legislation in the circumstances. I think that his support, if it existed at the time, must have been given rather more silently than the support which he has given the Bill this evening, but 1166 perhaps he was rather working behind the scenes.
§ Sir C. Black
I hope that the hon. Gentleman will not misrepresent me. I am sure that I did not say that I supported the 1959 Bill. I said that I was led to believe, by people on whose opinion I depended, that the Bill was likely to have the effect of making it easier for the authorities to deal with pornographic literature. I was mistaken in that belief, or I was ill-advised.
§ Mr. Jenkins
I do not know on whose opinion the hon. Gentleman depends, and I am, therefore, not able to follow that line of argument, but he indicated tonight that in 1959 he thought the Measure was reasonable and helpful. Now the hon. Gentleman wants to go back on the 1959 Act in a way which the Government, through the Joint Under-Secretary of State, have made clear that they do not contemplate, and I hope that we can have from the Solicitor-General an assurance that the Government will resist any attempt to do away with Section 4 of that Act, which was the whole basis of the compromise at that time. If we get that assurance, it will put the whole matter in a different light. The compromise made in 1959 would be meaningless if it were tampered with in this way, and I hope that we can have that assurance this evening so that in Committee we can approach this matter with as much good will as possible.
As the sponsor of the 1959 Act, I have no objection in principle to amending legislation at the present time. I think that not to take that line would be to show an almost excessive attachment to one's own work, which I would not want to do, for two reasons. First, because to a large extent it was not my own work. Apart from those closely associated with me in pushing through the 1959 Bill, as the Minister said, it was a compromise Measure. We were responsible for pushing very hard for the provision about literary merit and public good for the provision that the work should be considered as a whole and not merely on the basis of isolated passages, and for the provision that it should be considered on the basis of the likely audience at whom the book was directed, and that we should get 1167 away from the old provision of considering into whose hands the book might fall. Those were the provisions for which we were responsible, and I am glad that they were enacted.
What one might called the machinery of prosecution provisions came from the Home Office draftsmen and were broadly in accord with what police and prosecuting authorities asked for in their evidence before the Select Committee. If loopholes have been shown up, the responsibility must to a large extent rest with those who put forward the evidence and those who asked for things, and, having got them, found them insufficient. I do not blame them, but I would not like it to be thought that these loopholes have arisen because we were determined not to have these matters dealt with at that time. The Bill was a compromise. The main principles of it came from those who sponsored the Bill, but the machinery by which it was to be implemented came from Government draftsmen and from Government spokesmen.
The second reason why I would not wish to oppose in principle an amending Bill. It would be extremely silly, especially in the case of a compromise Measure, not to expect that some flaws might show themselves in the course of five years. It is only reasonable that where flaws have been shown to exist they should be remedied. But those remedies should be on an all-round basis, and they should remedy the unexpected flaws which have developed in the working of the law not merely from the point of view of the police or of the prosecuting authorities but also from the point of view of reputable authors and publishers. That has not been done in the Bill as drafted. I hope that it will be done in Committee. If it is, we may then have a reasonable Bill which can go through with good will and a large measure of agreement among most of those concerned.
What do reputable authors and publishers want? What are the flaws which have developed from their point of view? There are two lesser points to which I shall refer later, but primarily their view is that there should be the right of trial by jury where the defence of literary merit is involved, and where the calling of expert witnesses is entailed. The case 1168 in principle is that these matters—concerned with what shall be read and what should not be read, what is offensive and what is not offensive, what is corrupting and what is not corrupting—to a greater extent than almost anything else with which this House has to deal, or with which the law has to deal, are subject to individual prejudice on one side or the other.
This being so, this is a subject which, by its very nature, is peculiarly unsuited for the absolute judgment of one man, and one man alone. It is a subject which is particularly appropriate for the jury system, with 12 people to some extent balancing each other in their approach and in their prejudices. That is infinitely preferable to judgment by an individual. But there are other considerations which work in favour of the right to trial by jury.
My hon. and learned Friend the Member for Derby, North (Mr. MacDermot) mentioned the "Fanny Hill" case. That exposed clearly the disadvantages of not having trial by jury in a major case. The circumstances of that case were most unsuitable for hearing in a magistrates' court. It was a major case, involving the deployment of subtle and erudite evidence, which might or might not be accepted but which it was extremely important should be heard and weighed up. It was entirely inappropriate to be heard in a dingy magistrates' court—or perhaps I should say a magistrates' dingy court—which was used to dealing with cases of summary jurisdiction, many of them involving drunks or prostitutes. It was first heard on a Monday and then adjourned to the following Monday. It was then put over to the next Saturday afternoon, and then to the following Monday week. This time-table was entirely inappropriate for a difficult case. It was impossible for the tribunal to be able to form a balanced judgment whether convincing evidence had been put forward.
Secondly, the verdict, given in that way, was unsatisfactory from everybody's point of view. It was an inconclusive verdict, because it related only to the 171 copies of the book which were seized in a certain bookshop. There have been subsequent cases in Manchester and Sheffield which indicate that it was not regarded as having settled the matter 1169 definitely. It may be said that even if the case had been a criminal case and had been heard at the Old Bailey it would still have related only to those copies of the book which had been seized. But there would then have been one great difference. The judge, in his summing up to the jury, would have weighed up the evidence and given an indication whether great regard was being given to that part of the prosecution's case, which related largely to the circumstances existing in the bookshop in which the book was seized. The judge would have pronounced on the literary evidence, and would have said whether or not he regarded it as unconvincing, or as convincing in itself but still failing to outweigh the inherent obscenity of the book. The jury would then have been able to arrive at a verdict which would have appeared just and fair not only to those who wanted to be prosecuted and not to be dealt with by the forfeiture procedure but also to those people who took the view that the book was dangerous and should have been banned.
The "Fanny Hill" proceedings indicated overwhelmingly that this was a most unsuitable method of procedure for a major case of its kind. It indicated overwhelmingly that it was essentially a jury issue, and it was a great pity that it was not heard before a jury.
How could this be achieved? My hon. and learned Friend referred to three methods. First, we could give the defence the right to opt for prosecution under Section 2 of the 1959 Act—an option which they would have like to have been able to choose in the "Fanny Hill" case—rather than to submit to the forfeiture procedure in a case where they wished to employ the defence of literary merit. Secondly, we could provide for the empanelling of a jury, even where forfeiture only was applied for. Thirdly, we could do away with the forfeiture procedure and deal with all cases on a purely criminal basis. My own preference is for the first proposal, namely, to give the defence the right to opt for trial by jury in a case where it wishes to employ the defence of literary merit. I do not think that it would be impossible to make such a provision.
What are the objections? In the "Fanny Hill" case, the objection put for- 1170 ward by the Solicitor-General was based on the Clayton case, which concerned the incorruptibility of the police. That has been disposed of, assuming that Clause 1 is agreed to. There also seems to be a feeling on the part of the Government—and this opinion seems to have found an echo in the speech of the hon. Member for Wimbledon—that there could be a sort of clogging up of the courts by a deliberate attempt on the part of those who wished to publish pornographic literature to opt for prosecution. They could clog up proceedings at the Old Bailey and similar courts and make it difficult for cases to go ahead.
It is difficult to believe that that would happen, and I would need some extremely strong evidence to make me believe that it would. The defence of literary merit has been raised very rarely in the past five years. It is not susceptible of being used frivolously. If there is no worth-while evidence, what man in his right mind is going to invite prosecution rather than accept the forfeiture procedure, thereby inviting arraignment before the country on a criminal charge, simply in order to deploy a frivolous defence which he knows has no chance of being accepted? If the worry of the Government is that a situation might arise in which pornographers would try to clog up the criminal courts, it is difficult to see what is the purpose of the Government in introducing Clause 1, because that Clause is designed to enable the Government to take criminal proceedings in circumstances where, without it, they would have had to take forfeiture proceedings. When criminal proceedings are taken the defence can demand trial by jury, without there being any question of literary merit.
It would, of course, be possible to argue that if we did away with the right to trial by jury in the case of a great number of offences it would be much easier to get through the work of the courts, but I am sure that that argument would not be acceptable to hon. Members on either side of the House. We must be careful about such arguments, especially where we are dealing with important matters such as the freedom to write; and the question of literary censorship.
1171 The second provision which should have been included in the Bill is the provision that if the prosecuting authorities wish to take conspiracy proceedings there should be an explicit declaration, in statutory form, that all the safeguards of the 1959 Act would apply. Conspiracy proceedings could then be taken by the prosecuting authorities if they so wish, but if they are, they should not be the means of cutting out the Section 4 defence or of getting away from the severe but limited penalties which, after considerable discussion, were approved by Parliament in 1959. Technically, I suppose, we might otherwise go back to the farcical position of having totally unlimited penalties.
It may be argued—no doubt it will be—that such a statutory declaration in an Act is not totally necessary. Assurances have been given in the past. I think that everyone will agree that it is not a question of not believing assurances. Law officers change, Governments change, Directors of Public Prosecutions change, everybody changes in time, and it is much better to have these things written down firmly and clearly, in black and white, so that there cannot be argument about breach of faith and who exactly said and meant what. I am sure that it would have been much more satisfactory to have this brought forward in that way.
Thirdly, there should be, I think, a time limit in forfeiture proceedings. I return to the "Fanny Hill" case for a moment and for the last time. The 171 copies of the book were seized, and then nothing happened for six weeks. Then a warrant was applied for and proceedings were started. They started just when Questions were to be asked in this House as to when the proceedings were to be started, but that may or may not have been the cause. But six weeks is a long delay. I think that a period of twenty-eight days would be reasonable after which the property should be returned if no proceedings were taken.
These are the three things which, in my view, should have been in the Bill. What about the measures which are in the Bill itself? Here I go very closely indeed with my hon. and learned Friend the Member for Derby, North. It does not appear that Clause 2 is of great importance or that objection should be 1172 taken to it, but one would like to hear it argued in a little detail in Committee. In Clause 1, one sees the point and the need for some amending legislation to deal with the point raised in the Clayton case, but I wonder whether this is not going too far, and whether by making possession with a view to sale the essence of a criminal offence we are not getting far away from the fact that regard must be had to the corrupting effect upon a likely audience which was the essence of the 1959 Act.
Like my hon. and learned Friend the Member for Derby, North, I am not surprised that the view was taken that a police officer acting as an agent provocateur should not be regarded as somebody legitimately corrupted in this way. If one is dealing with under-the-counter material, which is no doubt the objection to my hon. and learned Friend's suggestion—a very reasonable suggestion—this point could be dealt with by inserting "exposing for sale" in the relevant Section of the principal Act. If one is dealing with under-the-counter sales surely some regard must be had to their being exposed for sale, otherwise one is getting right away from a law based on corruption.
There is a case for some Amendment along the lines of Clause 1. There may even be a case for Clause 1 exactly as it stands. But we did not hear it this evening. I thought that the Minister explained the Bill lucidly and carefully this evening in his opening speech, but I do not think that he argued in detail the case for Clause 1 as it stands. It may be that if the Home Secretary, whether his unfortunate engagement is in the north or the south of England, were able to be here today he would have been able to explain it more forcibly, or more powerfully, but on previous experience of the Home Secretary I rather doubt it. At any rate, we ought to have a much more detailed deployment of the argument which made the Government think that this method, with certain dangers to individual liberty, was the only way in which they could proceed. I think that one must say that the record of the Home Office recently is not such that one can take on trust that the Home Office will always have scrupulous regard for questions of individual liberty.
1173 None of us in this House—certainly I do not believe that anyone associated with me in these matters—has any desire to make the world safe for hard-core pornography. At the same time, I think one must see this matter in some sort of perspective. Straightforward, "pure" pornography, as it is sometimes engagingly called, is no doubt distasteful, and rightly so, to many people—no doubt to the majority of people in this country—and it is proper that the House should have regard to that. But let us remember that one is miles away from any objective evidence showing that pornography, distasteful though it may be, is a direct cause of sexual crime, or even is at all closely associated with a particularly loose way of life. When the hon. Member for Wimbledon talks about poisoning the soul, on the same basis as a tin of corned beef poisons the body, he is dealing with a matter which, I think, is a little more complex than he allows. I think that it would be extremely difficult to show on the basis of country by country studies that those countries in which pornography flourished were necessarily those countries which had a particularly loose standard of sexual behaviour. It may be the reverse.
Certainly, for what they are worth, Americal sociological studies which have been made on this subject, much more than here—it is a good idea that we should temper our prejudices with a few facts from time to time—show that the sort of people to whom pornographic literature appeals are not the people on the borderline of crime or even people living particularly licentious lives. They are, on the whole, people who lead quiet, sad, lonely, deprived and shy lives. This may not make pornography less distasteful but it puts it a little more in perspective than some people are inclined to do.
If one could show clearly and decisively that it had a direct causal relationship with criminal action then a somewhat rougher approach might be justified. I should not be worried about the question of human freedom particularly regarding the carrying of offensive weapons. I believe that the freedom to read is a good deal more important than the freedom to carry flick-knives. It is vital that we should realise that we are here dealing with a difficult subject and inevitably one has to balance two contrary 1174 sets of extremely important considerations.
No doubt if material with any pretence to merit could be put on one side and straightforward, hard-core pornography on the other side, we could separate them completely, that, no doubt, would be a very satisfactory solution, acceptable to all of us. But all attempts to legislate on this subject have failed to do that. One is always up against the difficulty of the borderline case. There is no doubt at all that the prosecuting authority has in the past shown a somewhat unfortunate tendency to get bogged down in this border country. In the Select Committee of the House in 1957–58 I remember asking the then Commissioner of the Metropolitan Police, Sir John Nott-Bower, what would be his attitude if, in fact, it was really possible to get a greater measure of procedure against straightforward pornography and whether he would then be content to leave anything on the borderline which had any pretence to literary merit on one side. I said:Supposing that it were possible to get more effective means of proceeding against the really filthy stuff, would it be a matter of comparative indifference to the Police what happened to the border-line stuff?His answer was "Complete indifference". I said:Even if the position in getting prosecutions was made rather more difficult?and he replied "Completely". Yet the prosecuting authorities seem fascinated by this very borderline country. It is therefore difficult to approach this on the basis of completely separating the completely hard-core pornography from the borderline cases.
To sum up, I do not contest the need for some amending legislation. I think that the test—I am sure that this test will be applied by great numbers of people in the literary world—the test of the Government's good intentions, the test of their claimed desire to get certain powers which they need for use against hard-core pornography while in no way wishing to treat literature individually unfairly, is whether they would be prepared to grant trial by jury. If they are, their assurances will have some meaning. If they are not, one is bound to look at those assurances extremely sceptically.
1175 I am sorry that the Home Secretary is not present to hear what is being said and to test the feeling of the House. This is a major Measure. I do not think that the Secretary of State should bring forward a Bill, touching censorship and with his personal imprimatur clearly upon it, without being present at the Second Reading debate. I know that the right hon. Gentleman has an important engagement, but this House has a certain priority and I think that he should have been present to hear how the Measure was received by the House. I hope that his representatives will convey to him the paramount importance attaching to the question of trial by jury.
§ 7.30 p.m.
§ Mr. W. R. Rees-Davies (Isle of Thanet)
Today, of all days, the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) must bear in mind that while the dilettante is entitled to a place, it is Santa Claus who is the winner. We have a predominant interest to ensure that the traditions of our country and the protection of the youth of the country are paramount. That is what I mean by Santa Claus. The tradition of Santa Claus for the children and the youth must remain; although we shall certainly try to find a place for the dilettante as well, provided that this does not harm the predominant traditions of this country.
I must congratulate the Home Office on bringing forward yet another Measure—there has been a long string, very nearly as many as the entries in the Derby today—and for the first time for over 100 years, there is an endeavour to suppress purulent pornography. I must tell the Home Office clearly that this is not as small a Measure as it was thought when the debate was opened. It is a strong Measure and one which will go a very long way to achieve the suppression of pornography, because it gets at the sources. I suspect that the Home Secretary, through his advisers, knows this.
In due course I shall reply briefly to the arguments advanced by the hon. Member for Stechford. But may I say this to him, and I say it with no sense of discourtesy: he must not become too much of a specialist in "Fanny Hill." 1176 Those of us who see a lot of a certain aspect of this matter are concerned with what one can only describe as the purveyance of purulent pornography in great big loads throughout the country, but we have nothing whatever to do with the question of whether or not "Lady Chatterley's Lover" is or is not a pornographic book. Those people who are concerned with what I might call the publication of artistic talents represent less than one-hundredth of 1 per cent. of the problem with which we are dealing.
Before I turn to those matters, may I say to the hon. Member for Stechford that he cannot secure the assurance from the Solicitor-General which he wants about the protection of artistic merit because he has not read the legal case which shows that the protection has already been shot to pieces. If tomorrow I were asked to draft an indictment in order to prosecute "Lady Chatterley's Lover" I could do so, and it would go to the Old Bailey, and in a matter of weeks a conviction could be ensured; because it would not be possible to raise a defence under Section 4 of the Obscene Publications Act, 1951. It would be drafted as a conspiracy to corrupt public morals, using details in the book as being merely passages for the argument. If the hon. Member for Stechford wants the authority for that, he should read the 1962 Appeal Cases, page 226, and if he looks at pages 240 and 272 he will see the ratio decidendi of that decision.
§ Mr. MacDermot
I think that the hon. Member for the Isle of Thanet (Mr. Rees-Davies) will agree that in that case it was stated by the Solicitor-General for the prosecution that that was not an obscene publication, and he disclaimed any attempt to prove that it was—
§ Mr. Rees-Davies indicated dissent
§ Mr. MacDermot
I see that the hon. Member is shaking his head. Perhaps he will read the report himself.
§ Mr. Rees-Davies
In due course and if the need arises I will do so. In fact, in that case there was a conviction over it as an obscene publication—
§ Mr. Rees-Davies
When the hon. Member sees who had to argue that case he may perhaps not query the matter with me—
§ Mr. Roy Jenkins rose—
§ Mr. Roy Jenkins
What I should particularly like to ask—perhaps it can be replied to now or later—is whether the Solicitor-General and the Government accept what he has just been saying? If so, Presumably they were aware of it before. Presumably they are well briefed on this matter. If they bring forward a Bill to deal with certain flaws in the 1959 Act and say—as the Minister of State for the Home Department did—that the last thing they wish to do is to upset the main safeguards of the 1959 Act, why did not they bring forward a provision to deal with this?
§ Mr. Rees-Davies
The hon. Member for Stechford must not intervene to steal my speed. We shall need to amend this Act further in order to ensure that the intention of Parliament at that time is carried out. I merely produce the point at this moment to show that—I regret to say it—the whole basis of his speech is destroyed because it depends upon looking at what the law now is, but was not in 1951, as the lawyers believed it to be.
May I come now to what at any rate most of us are here to do tonight, to secure effective and increased measures against pornography. The really serious pornography of today is not merely in books. It seems to me that if we are to deal with this problem we must do so predominantly through the police courts. Let us note the various and different forms of pornography. We have films, pictures, photographs and postcards. Those are some of the worst forms of pornography which exist today. I should have thought that the ordinary procedure of seizure and dealing with them through the police courts was perfectly satisfactory. There is a large increase in the production particularly of pornographic photography and one of the really important provisions in this Bill is the provision to deal with the seizure of instruments of manufacture.
Hitherto, there has been no means of getting at them. We have not been able 1178 to seize the cameras, the materials, the negatives, the proofs and the prints. It seems to me that it is there that we should deal with this problem rather than further down the line at the later point of distribution. It seems that the proper procedure for that is through seizure and dealing with the matter in the courts. In the great majority of the film line and photographic line there is very seldom any very serious question as to whether it is or is not pornographic. Nor is it very serious if it falls one side or the other of the borderline of pornography. This Bill goes a long way towards assisting the position of the police in that regard.
The only safeguard we have to be careful about there for the liberty of the subject is to see that purely private ones are not also seized. I remind the hon. and learned Member for Derby, North (Mr. MacDermot) that this Bill does not just provide for the seizure of obscene articles in theownership possession or control".It goes on:for publication for gain.If it had only said that any person in possession of pornographic material should be liable to prosecution, I would not agree with it. It must, of course, be intendedfor publication for gain.It seems that the words, subject to closer consideration in Committee, are fair as they are at present drafted.
I believe that we should go further and not make the test sale or publication or offer for sale. We ought to go to the root of the matter, which is to get at the producer. I believe that there is a very strong feeling in the country today—certainly in my constituency—which wants to stop offensive distribution of pornography which is known as such. I am a little of a "mugwump" in this matter, being on both sides of the fence. Although I feel strongly that the public ought to want us to take it further, I recognise that safeguards are very necessary.
I turn now to the question of filthy postcards. This is a very big trade and there is an immense sale. What is fascinating about it is that what is a filthy postcard in one part of England is quite clean in another. What, for example, is on the wrong side of the line in Folkestone 1179 is on the other side of the line in Margate. Folkestone is rather less robust than Margate. As a result there are different decisions. This is a big and serious matter which the House probably does not realise. Prosecutions in respect of several hundreds of postcards at a time go before magistrates and sometimes to assizes before a judge. The whole of this paraphernalia, to my mind, is needless.
In the town of Blackpool there is a very sensible committee. I think it is a sub-committee of the watch committee. The committee looks at all the picture postcards and decides if in its view any of them goes too far. If they are robust and make one laugh, however coarse they are, on the whole they are considered to be for the public good, but if they are perverted and go on the wrong side of the line, that is another matter. The town has its own censorship and, having operated it, careful note of the position is taken by the chief constable.
I believe that this is a very good system. First, the producer knows where he stands. Secondly, the local authority knows what the local people want and do not want. Thirdly, there is the assistance, by taking note, of the chief constable who is able to take into account local factors. [An HON. MEMBER: "A conspiracy."] This works extremely well. I heard the interjection. It is in fact a friendly conspiracy of all the neighbourhood for the public good.
I do not believe that we should fear self-imposed censorship. It is when we have Government-imposed censorship that we may have something to fear. I should like to see this system operated more generally. I invite my right hon. and learned Friend the Solicitor-General to consider to what extent it is right to give directions to the police to permit watch committees or other committees in an area to consider these matters. That would be the most effective way of dealing with them. It would save many prosecutions and a great deal of trouble. It can be done purely administratively and with the assistance of the Home Office.
What is true in such a case is equally true of a great mass of literature. Today most people do not realise how very narrow are the channels of distribution. Apart from W. H. Smith & Son and 1180 Wyman Marshall there are practically no big concerns dealing with the sale of cheap books. If we could get an effective liaison with the distributors, genuine pornography, I am sure, could be more effectively prevented to a large extent. I recommend that we should set up as a purely voluntary body a first-class book council with all our leading distributors represented on it. We could see whether in that way they could secure a more effective control of outlets of mass-produced pornography.
I wish now to look at a narrower question. I believe that if this Bill gets at those channels and we see to what extent we can get assistance from voluntary authorities and a book council, we shall be able to prevent the vast influx of mass-produced, cheap American literature. That, to my mind, does more to deprave and corrupt the English language and the English way of life and to upset the traditions for which this country stands. Even if they are not susceptible to prosecution, so much can be done by voluntary effort. If we have the will, I am sure the way can be found.
I turn to the latter part of the speech of the hon. Member for Stechford. I believe that it is the task of Parliament and not of the courts today to determine with clarity what criminal offences shall be. In the 1959 Act we said in Section 2(4):A 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.The whole House took that to mean that if there were, in fact, publication of an article or book proceedings could be taken, but Section 4 entitled the publisher to a defence that it was "for the public good". I take the view—contrary, I am sorry to say, to that of my hon. Friend the Member for Wimbledon (Sir C. Black)—that it is perfectly right to have a defence in which experts may give evidence that the publication was for the public good.
I do not share the view that that can be needled away in some way in the courts. I want it to be sustained. In 1961 a case began in which the House of Lords, in its wisdom, made it clear that 1181 if it were a prosecution under the Obscene Publications Act one was entitled to the defence, but if it were a prosecution for conspiracy to corrupt public morals then it did not consist of publication because the conspiracy consisted of the agreement to publish and not of the publication. That is the ratio decidendi of the Shaw case on this point.
If today one is advising to prosecute material of any kind, whether literature, photography or anything in print or parts of a book, one would lay, and could perfectly well lay, a conspiracy to corrupt public morals, or not even a conspiracy; one might lay an offence to corrupt public morals.
In 1959 the Government were not in the position to cover these points because it was not generally believed then that the common law of England had such an offence as the corruption of public morals. It was only when the Shaw case went to the House of Lords that it was determined in the highest tribunal that there was still this vestigial power in the common law of England.
One of the most important points raised by the Bill is the power of Parliament to remedy that matter. When the matter reached the House of Lords their Lordships did not agree. I will read from a passage of Lord Reid in a dissenting judgment, on page 272, on the question whether there was an offence of corrupting public morals. He gave it as his opinion that there was no such known offence but he was in a minority and it was held that there was such an offence. He said:Even if there is still a vestigial power of this kind"—this offence of corrupting public morals—it ought not, in my view, to be used unless there appears to be general agreement that the offence to which it is applied ought to be criminal if committed by an individual. Notoriously, these are wide differences of opinion today as to how far the law ought to punish immoral acts which are not done in the face of the public. Some think that the law already goes too far, some that it does not go far enough. Parliament is the proper place, and I am firmly of the opinion the only proper place, to settle that. When there is sufficient support from public opinion, Parliament does not hesitate to intervene. Where Parliament fears to tread it is not for the courts to rush in.I do not propose to trespass upon the divergencies of opinion on that issue, but the Bill must make it quite clear what 1182 Parliament means by this Act. Do we mean to permit prosecution to continue in respect of books, not as an obscene libel; do we propose to leave an open doorway to enable people to prosecute in another way? My view is that we should shut if firmly and should say plainly which is the method which shall be used for all literature and for all photography. We should decide that issue. If my hon. Friend the Member for Wimbledon can persuade the House that what was done in 1959 ought to be revoked, well and good, but I do not share that view.
It is not possible to ask for an assurance that no one will implement the conspiracy method. That is what the hon. Member for Stechford asked. It is not for the Solicitor-General to give such an assurance. It is a matter in the province of the courts. It is open to any chief constable at any time when he has seized literature to send it to someone for prosecution, to take advice if he wants and to proceed in accordance with the law of this country. If he wishes to proceed for an offence of currupting public morals, he is entitled so to do unless Parliament says that he cannot do it. Therefore, it is plain that if Parliament wants to ensure that in future literature is dealt with by the process of the Obscene Publications Act, 1959, as amended, it will be our task in Committee so to ensure.
§ Mr. Roy Jenkins
The hon. Member speaks with great knowledge of the subject, but I did not ask the Solicitor-General to give an assurance on this point. I asked that there should be an Amendment so that if there were conspiracy proceedings all the safeguards of the 1959 Act should apply. We could proceed in this way or in another way, but I am entirely with the hon. Member in wanting the matter dealt with according to the letter of the law. I asked for an assurance from the Solicitor-General that it is not the Government's intention in Committee to give any countenance to the view of the hon. Member for Wimbledon (Sir C. Black) that Section 4 of the 1959 Act should be swept away. If that suggestion were accepted, all that the hon. Member is talking about would be irrelevant.
§ Mr. Rees-Davies
It will not assist to have an assurance that the Government 1183 will not change Section 4. My hon. Friend the Member for Wimbledon could exert pressure on the chief constable of his county not to use that Act but to prosecute by another method, and I have no doubt that he would feel justified as a Member in trying to persuade him so to do. That is equally applicable across the whole field.
Suppose that one issued an indictment in respect of a particular set of premises and took all the negatives found there, certain instruments which were found there and certain material found there. One could say, "I shall not indict under the Obscene Publications Act. I will lay a charge of corrupting public morals". We must be careful that we do not perpetuate this anachronistic system of laying unnecessary conspiracy charges, which have grown far too popular—and the reason they have grown popular is our failure to give sufficient power to the police to get on with the job in accordance with what is laid down in the Statute. If we ensure that the Statutes are properly laid and give them sufficient powers, the police will use them.
The principal point arising in this Act was the decision of the incorruptible police constable, the Clayton decision. They laid a conspiracy charge and secured a conviction. It was held that police constables were incorruptible and were not depraved, and therefore there was an acquittal on that matter, but as an alternative a charge of conspiracy was laid, and under the conspiracy count it was held that as there was an agreement by the suppliers, the accused, to supply the public generally, then the public generally would be depraved and corrupted and therefore the accused was convicted.
The position is in a mess, and it is a good thing that we have an opportunity to clear up the points which have arisen since 1959. We cannot lay any criticism at the door of the Home Office, their advisers or the Minister at the time; when they passed the Bill they did it validly, after careful consideration. It is owing to the clarification of the common law of England and the vestigial powers remaining that we have to correct these matters.
I venture to finish on a partisan note. We on this side of the House are determined 1184 to suppress purulent pornography over its whole wide scale and not to be drawn away into a little dilettantism at the expense of what we regard as a matter of great importance to the country. We are deeply indebted to my hon. Friend the Joint Under-Secretary of State for moving the Second Reading of the Bill and my hon. and learned Friend the Solicitor-General for being here tonight to give us his views on the matter.
§ 7.59 p.m.
§ Mr. Leo Abse (Pontypool)
In the Library of the House of Commons we have a slight collection of erotica. It is a poor collection. It is maintained in a semi-secret cupboard and the courteous Librarian will always give an hon. Member the key if he particularly requires it. I assume that it is in these surroundings so as to make certain that those who are offended by such literature, such as the hon. Member for Wimbledon (Sir C. Black), will not feel wounded that it exists here in our Mother of Parliaments.
If we examine the collection we find that it includes, as one would expect, material such as the works of Havelock Ellis, Kinsey's "Sexual Behaviour," Lewisohn's "History of Sexual Customs," and also, what one would expect to find, "Lolita," "The Tropic of Cancer" and "Kama Sutra." We belong to a group of the vocationally immune, I do not doubt, and there is no danger.
One finds some strange things in this little collection and I cannot understand why, for example, side by side with "The Men in My Life" by Martha Watts we find "Members of the House of Commons, 1754–1790"—but nothing I have seen in the recent reviews of this work has led me to believe that there are any fascinating biographical details of the hon. Members of the House of Commons of the 18th century.
It is a slight collection and it needs must be because erotica has a long history. All pornography has, from the first "Love Song of Sumaria" 4,000 years ago and that written in Ezekiel, with which I am more familiar, to the present time. Always there have been works of this kind. It has been going on literally for thousands of years and it is no good blaming foreigners for this kind of work. We have our own. Indeed, one of the finest of the earliest books published in 1185 the English language is a volume known as "The Exeter Book," which is replete with double-entendre riddles and is one of our oldest pieces of literature.
I am pleased to claim—as I do not doubt my hon. Friend the Member for Ebbw Vale (Mr. M. Foot) and the sponsor of the original Bill will be pleased to claim—that we have had some very remarkable men coming from Monmouthshire, who made a contribution to English pornography. In the 12th century we had Geoffrey of Monmouth, who gave wondrous tales of the Arthurian Knights, but neither King Arthur nor the Knights were the little Lord Fauntleroys of later idylls.
Then we had the beginning of the importation into this country after the 14th century of a great deal of pornography. This was at a time when Boccacio was having to defend himself, in Italy no doubt, because he ended his writings by saying:Being freer maybe than liketh your squeamish hypocritical prudes, who weigh words rather than deeds and study more to appear than to be good.Since we have been talking a great deal about tradition in this country, it is worth remembering that Chaucer did not have to make any apologies. His frank scotological and sexual lines were written in a way that clearly shows that his England tolerated unashamedly an outspokenness even beyond that of Boccacio.
If one looks into the history of censorship—and one must do this when considering legislation of this kind—we know that in those terrible Elizabethan days—those days of great decadence when England was weak and futile—a monopoly was given the Stationers Company on condition that those printers did not print seditious and heretical works; rhymes and treatises of that kind had not to be published. When the scholars complained in those days that every light bit of smut got its licence without delay while serious books were held up for prolonged scrutiny, the licensers in those Elizabethan days reasonably replied that erotic writings harmed no one; that it was just the serious and learned works which might shake a man's faith in his government or the State church.
It was fortunate in those times that such a view was taken, otherwise much 1186 of the works of Shakespeare would never be available to us. We would not have had works like "Venus and Adonis", and much else of Shakespeare would otherwise have not been inherited by us.
When I hear people saying now that our pornography is cheap and can be bought by ordinary workers—that it can be bought by the public in the form of paper backs—I think back to the Elizabethan days when, as anyone who has studied the history of erotica well knows, pornography was hawked around the streets on greyish sheets of paper in blurry type as freely as newspapers are sold today, replete with bawdy tales of harlotry and cuckoldry.
What nonsense to suggest that suddenly England is in danger of being flooded with cheap pornography. England has survived imported pornography before. It was in the 16th century that Paris began to send us the dreadful things about which the hon. Member for Wimbledon complains and which he described. It was at that time that we had the beginning of the worst of imported pornography. We had a translation under the title "One Hundred Merry and Delightsome Stories" which were described as suitable for all "goodly company" and it remains a standard work of erotica throughout the world. Of course, Margaret, Queen of Navarre's "Love Stories" were soon to follow, being available in this country for hundreds of years.
Not only did we have this importation but Britain has certainly developed a great deal more erotica. The nation survived the Restoration pornography—the ostentatious sexuality drawn in leering style which many think less attractive than the frank and bold, almost innocent obscenities of the Elizabethan age. Indeed some people think that this was the reaction to puritanism, the defiance of the Puritan sect.
Since we need to be informed historically when debating a Bill of this kind, it is well to remember that it was not repressive laws which modified public taste and turned them from the worst vulgarities of the Restoration period. It was not legislation. It was a process which began after 1695 when the Licensing Act was allowed to die. That was the time when the nation turned away from the Restoration rubbish.
1187 It is well for us to turn back history and recall this quotation of what Macaulay said happened at the time. Speaking at a time when literature was becoming emancipated, in 1695, as a result of the Act being allowed to lapse, he said:From the day on which the emancipation of our literature was accomplished, the purification of our literature began. That purification was effected, not by the intervention of senates or magistrates, but by the opinion of the great body of educated Englishmen, before whom good and evil were set, and who were left free to make their choice … the restraint imposed on writers by the general feeling of readers has been constantly becoming more and more strict. At length even that class of works in which it was formerly thought that a voluptuous imagination was privileged to disport itself … have become more decorous than the sermons of the seventeenth century.That is what happened. Licensed salacity was superseded by free prudery. That is the historical fact and it was a more confident England that scoffed at the first attempt made to suggest obscenity might be a violation of the English common law when a printer named Reid was brought before the court for publishing "The Fifteen Plagues of a Maidenhead".
Sir John Holt, Lord Chief Justice of the King's Bench, was one of the great masters of England's common law at the beginning of the 18th century. He ruled that much as he disliked both the tone and the content of the book, there was nothing illegal in it. Obscenity, he ruled, if punishable at all, was punishable only by ecclesiastical courts as a spiritual offence and nothing in law, common or statute, warranted an indictment against even the filthiest books, which the Lord Chief Justice of that day conceded the book was. So Mr. Reid, the printer, disappeared from history, and England survived.
If we begin to examine historically when the breaches were made and when obscenity became punishable, we find that the move away from this more permissive attitude occurred only when authority, the Establishment, felt itself threatened. The first of all English convictions for obscenity was that of Edmund Curll, who on at least two occasions previously had been in trouble because he antagonised the peers of England. He infringed their massive privileges. He had 1188 printed an edition of the proceedings of the House in the treason trial of the Earl of Winton, and ended up reprimanded on his knees at the Bar of the House of Lords. Later, he was in trouble with them because he had printed without their permission some of their last wills and testaments. So authority was "gunning" for him, and eventually it got him, because he printed a book called "Venus in the Cloister, or the Nun in a Smock." That is how he got into trouble.
But England at that time had some sense. When he was ordered to stand for one hour in the pillory a few hundred yards up the road from here, a large public gathering took place. Doubtless they suspected the motivation of the prosecution, just as I suspect the motivation of this Bill. The people gathered, not to revile the man or to throw things at him, but to serenade him and comfort him. The public then—as now, in my view—had more wit than prissy, bossy, censors.
Indeed, there is a long link between the reactionaries and reactionary legislation aimed at suppressing pornography, and reaction itself. The nineteenth century Society for the Suppression of Vice, which did so much campaigning and stirred up so much legislation to abolish brothels and eliminate obscenity, claimed as one of its earliest triumphs—and I am sure that my hon. Friend the Member for Ebbw Vale knows this—the successful prosecution of Carlisle, who was Thomas Paine's publisher of the "Age of Reason." Indeed—and in my view, it is significant—the Victorians who resisted emancipation, vaccination, education and mechanical progress were among the most active in demanding punitive laws against obscenity.
The hon. Member for Wimbledon is in a long line of tradition with these people, because history shows that, with but a few exceptions, those who stirred up anti-obscenity legislation in the nineteenth century were exactly the same people who held that anaesthetics in childbirth were sinful, because women should bring forth children in sorrow, who maintained that God intended that children of 8 or 10 should work in mills, and organised a Free Enterprise Society to oppose the creation of a Board of Health. With all this historical background we are entitled to ask ourselves what was 1189 the result of this Victorian anti-obscenity zeal and legislation. It was simply that the golden age of prudery was, as we all know, the golden age of pornography. That is what happened. English erotica flowered in the Victorian period. As St. John Stevas, a Conservative candidate, has said in his book "Obscenity and the Law," this was… the great period for pornography of every kind, from high-priced erotical material designed for bibliophiles to the cheap trash intended for the general public.He is right. It was in the Victorian era that pornographic magazines multiplied and grew.
"Fanny Hill" had a rebirth underground, with literally scores of editions. They were not even satisfied with it as it was, but added episodes not thought of by the author. Paris was still at work, but England did not collapse. Balzac and Casanova were imported on a wide and extensive scale. The Society for the Suppression of Vice certainly, by stimulating prosecutions, reduced the number of Holywell Street pornographic shops from 57 to 20, but everyone knew that the remaining 20 did more business than had the previous 57.
Why, then, in the face of the history of pornography and the futility of attempting to suppress it by legislation, do we, at this curious moment, seek yet tighter control? Why has it come about at this moment? Is the real motivation the elimination of lacuna in the present law? Is there a widespread demand for the suppression of pornography? We know that there are always the vociferous minority groups, but the only fact we seem to have learned this afternoon is that there is a widespread demand for pornography—we are told of a million copies and of 300,000 copies being seized. As I understand it, there is a widespread demand, but not a widespread demand for suppressing pornography.
Why is it that we suddenly get a puritanical reaction of this character? Why do the Government suddenly wish to clothe themselves in whiter-than-white? Is this an attempt to blot out the opprobrium attributed to them by the Profumo and Keeler scandal? Is that the reaction that has led to this stupid prosecution of "Fanny Hill", begun in such an absurd manner in the wrong place at the wrong time? Are 1190 the Government, after last year's squalor and deceits and lies, seeking to parade now as a Government strongly concerned to protect the nation from any of the aberrations of these unhappy, wretched voyeurs? I find this puritanical reaction mere sordid, more replete with humbug, than the miserable events that I think have prompted this ostentatious display of restrictive morality.
All that repressive obscenity legislation achieves is, as all history proves, the emasculation of literature and the driving of pornography underground, where it is miserably served by the least of writing talent. Prohibition inevitably gives such wretched pornography an attraction that it would not earn on its merits, and makes purveyors set high prices on their wares to compensate for the inevitable and growing risks that legislation of this kind would introduce.
Do we not know that ever since the Garden of Eden, forbidden fruit tastes sweeter? I was once, surprising though it may be to the House, chairman of the watch committee in the capital of Wales, with its great Nonconformist tradition. I found in the short time I held the office—it was just before I came to the House—that I had to deal with this dreadful problem of which we have heard from hon. Members with regard to films. We had to view these films, when they were borderline cases, to decide what certificate we would give. When I realised that those who were to exhibit a film were desperately anxious that I should give it an X certificate, I never gave it one—I always gave it, if I could, a U certificate. Sometimes I had to concede to my committee to give it an A certificate, because no one wanted to see it then. It is only when one forbids things like that that they become attractive. This Fill is totally the wrong way to go about the business.
We have been making sly innuendoes this evening about Epsom and where the Home Secretary may or may not be. It is perhaps typical of the hypocritical atmosphere in which the Bill is enveloped that it comes before the House at a time when a large proportion of hon. Members are away indulging in what my chapel-going constituents would say was a veritable orgy at Ascot. [HON. MEMBERS: "Epsom."] I do not ask pardon for my lack of familiarity with the 1191 venue. Instead of repressively and punitively seeking out sin, as this Bill does, would it not be more constructive, to ask why people are voyeurs? Why do they want to buy this wretched stuff? Why are they prepared to pay for such depressing material and create this huge market for this vapid pornography?
As sociologists in America have emphasised, they are usually people who are isolated and lost. They seek their sex not within the personal relationship of matrimonial life but vicariously in the banal rubbish about which we are speaking. They have not reached their predicament by accident. Men and women need to be brought up in an atmosphere of love and to be able to experience and to give and receive love. The fusion of the tender and lustful impulses of a man is more likely to come about when as a child he is reared in a home where respect, regard and passion flows from one parent to another.
The sexually immature, like those who buy this trash or those who, like Keeler, become prostitutes, have so often not come out of such homes. It would be more helpful and constructive if we mobilised our social resources and spent our time asking how we could use them to see that these children born into unhappy homes, who as a result have faulty attitudes in their personal relationships, have succour and care.
I think that it would be more valuable to examine the real roots of pornography, which are not in the people who purvey for profit but lie in people who are brought up with the loss of home affection. They lie in these lost souls who seek sexual satisfaction while they wander round the pornographic stores in Soho and elsewhere. Just as human beings in private life, if excessively sexually repressed, have anxiety or obsessional neurosis, so I believe that if the State indulges, as the Victorian State indulged, in repressive legislation of this kind, a reaction will be provoked that it seeks to avoid.
A little less of this punitive air in the House of Commons would be all the better for us. A little less of that attitude and a little more humanity and we may create a Britain where people ultimately would be bored at the idea of buying this pornography and would turn 1192 away from it because they realised how puerile and trashy it was.
§ 8.24 p.m.
§ Mr. Ian Gilmour (Norfolk, Central)
In a most valuable historical exercise the hon. Member for Pontypool (Mr. Abse) has carefully and almost lovingly traced the British pornographic tradition. As he has said, it is plain that it has always been with us, though I think that his thesis that a reactionary attitude towards pornography goes with a reactionary attitude towards politics could not be sustained if he looked at the seventeenth century.
The hon. Member added to my bewilderment this evening. My hon. Friend the Joint Under-Secretary introduced the Bill in a most lucid and able speech, but he did not answer the most important question, which is why the Bill has been introduced. I can hardly imagine that the pigeonholes in the Home Office are anything but choc-a-bloc with Bills anxious to come out and be made Acts. That all those have been neglected and this Bill has been produced shows an extraordinarily defective sense of priorities.
Anybody would gather from the introduction of the Bill that pornography was really a vastly important subject and that it was a major social evil. We have only to look around us for a moment to see that it is not. There are a great many other things which are far more important. One obvious thing is the gang warfare between Mods and Rockers at seaside resorts. It would surely be far better for the Mods and Rockers and for the community at large if instead of breaking up Clacton and places like that they all stayed at home and read a little light pornography.
It seems to me that an extraordinary lack of proportion is being shown. The crusaders against pornography always make the same mistake. They all exaggerate its effect on the people who read it. As the hon. Member for Pontypool and the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) have said, there is no evidence that the reading of pornography leads people to indulge in colourful orgies. They do nothing of the sort. Pornography is a solitary vice. It is singularly unimportant, and the people who try to stamp 1193 it out seem to be the people who pay much the most attention to it.
The hon. Member for Pontypool went into the English tradition. There is also an American tradition. There was a famous man, J. Frank Chase, secretary of the Boston Watch and Ward Society for 20 years. He was a famous scourge of pornography until he came up against the redoubtable H. L. Mencken. Chase for 20 years was able to prohibit the publication of anything that he did not like because he was more or less able to choose his own judge, but the interesting thing about him was that while he was obsessed with pornography he liked it very much indeed. He had a most excellent pornographic library of his own, and he once wrote a most obscene ode to Boston night clubs. As I have said, Chase was obsessed with pornography because he liked it so much. I do not suggest that this is the case with the Home Office, but the Home Office is tremendously exaggerating the importance of pornography.
It may be objected that while pornography does not have much effect on the people who read it, nevertheless it offends people that it should exist, and that their susceptibilities should not be bruised in this way. There is something in this, but when the argument is put forward, I remember the comment by Norman Douglas when there were a lot of complaints by moralists at the goings on at the Feast of the Madonna di Pollino. He said that he could well believe that these goings on had taken place, but why were the moralists there? This is the point. It is quite easy to avoid pornography if one wants to. It is quite unnecessary to come into contact with obscenity if one objects to it. I cannot accept the idea that people's moral susceptibilities must be cosseted in this way as a compelling argument.
My first reservation about the Bill, therefore, is that it has been produced at all. My second reservation is that it seems exceedingly one-sided. If we are to close all these loopholes, it is important that they should be closed from all angles. When Mencken sold his copy of the American Mercury to Mr. Chase on Boston Common and Chase handed him a 50 cent piece, Mencken bit it to see whether it was genuine. We should bite this Bill rather carefully before it is 1194 finished with because there is a great deal which needs to be done to it.
It seems to me that the loophole in the 1959 Act which was revealed in the "Fanny Hill" case, and through which the Director of Public Prosecutions darted, shot ld be closed just as much as any other loophole. Even more important, we should take note of what was said by my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies) about the invention of the offence of conspiracy to corrupt public morals. It is essential that this point should be dealt with and that that offence should be disinvented by the Bill, because it really does disfigure British law today.
I hope, therefore, that the Bill will be altered fairly radically before it is passed into law.
§ 8.30 p.m.
§ Mr. Michael Foot (Ebbw Vale)
Everyone will agree that, at least up to this point, this has been a fascinating debate. Speaking for myself and, I think, for many others, I regard the speech delivered by my hon. Friend the Member for Pontypool (Mr. Abse) as one of the finest speeches I have ever heard in the House. It was a magnificent declaration of the truest tradition of this country, and I felt privileged to be present to hear it.
Like others, including the hon. Member for Norfolk, Central (Mr. Ian Gilmour), who has just spoken, I have been wondering about the origin of the Bill and why we have been presented with it at all. Perhaps, when the Government decided that they would not have a General Election in the summer, they had to look round for a Bill which could be brought forward. That would be as good a case for the Bill as we have had so far, but I think that we must see whether there are other reasons.
When I read in the newspapers that the Home secretary was proposing to introduce a Bill to deal with obscenity and censorship, I was extremely alarmed. I thought that he was not the kind of person we could safely have in charge of such a matter. It was rather as though one read that the compilation of the Bill of Rights was to be entrusted to Judge Jeffreys. I did not think that he was the right person to do it.
§ Sir Kenneth Pickthorn (Carlton)
The hon. Gentleman might remember that we owe to Judge Jeffreys as much as to any single man—and, with due respect, to the Star Chamber, to which we owe even more—the law of evidence, which is the most important of all the foundations of our liberty.
§ Mr. Foot
I apologise if I have done any injustice to Judge Jeffreys. For a moment, I thought that the hon. Gentleman was leaping to the defence of the Home Secretary, but I see that he is much more discriminating.
The fact is that the Home Secretary, in the view of many of us, is not the kind of person whom we can see introducing legislation on this matter without examining it with extreme care. As has been pointed out already by my hon. and learned Friend the Member for Derby, North (Mr. MacDermot), when one reads the Bill one's suspicions are reinforced because the Explanatory Memorandum does not explain what the Bill is about. There is nothing novel in that, judging from the Explanatory Memoranda I have seen in the past, but this Explanatory Memorandum is deceptive.
It seems that in this respect the Home Office has learned a few tricks from the pornographers. What some pornographers do is to put innocent material in a salacious cover, and what others do is to put salacious material in an innocent cover. What the Home Office has done in the Bill is to try to conceal the more serious measures that it proposes for dealing with the law of obscenity beneath a mild and misleading Explanatory Memorandum. But what it has also done, as has been pointed out by many speakers, including the hon. Member for Norfolk, Central, is to be extremely one-sided in its approach.
The hon. Member for the Isle of Thanet (Mr. Rees-Davies) said that what we were meeting here tonight to do was to produce more effective measures to deal with pornography. He is entitled to engage in that pursuit is he wishes. But the Joint Under-Secretary of State, who introduced the Bill, said something rather different. His explanation of the origin of the Bill was that the Home Office had set out to review the operation of the Measure introduced by my hon. Friend the Member for Birmingham, Stechford (Mr. Roy Jenkins) and that this was a Bill setting 1196 out to deal with the deficiencies which had arisen since my hon. Friend's Bill was passed.
Therefore, the hon. Gentleman was not saying that he was coming before the House merely to deal with the police provisions of the Act. He was saying that the whole Act had been reviewed by the Home Office, which makes the situation considerably more serious, because if this is the Home Office's verdict on the operation of the Act we have to review the matter in a much more extensive manner.
If the Home Office reviewed the whole Measure, there are a number of amendments which many of us, including, I should have thought, the Solicitor-General, are surprised to note are not in the Bill. Like many others, I have looked up what happened when the 1959 Obscene Publications Bill was introduced. I was not in the House at the time. During one of the important debates on the Bill, when the House was discussing the Report of the Select Committee, the present Solicitor-General, who was then a back bencher, made a contribution to the debate and discussed one of the questions which had been frequently raised during the proceedings, namely, who should be responsible for initiating prosecutions under the Act. I will not read all the speech which the Solicitor-General delivered. I dare say that he has read it again and I hope that he has been fortified by it. I only wish that he had read it before the Bill was drafted by the Home Office. Perhaps he will tell us when he read his speech last.
On 16th December, 1958, the Solicitor-General made a most powerful case for suggesting, not merely that all prosecutions under the Act should be brought by the Director of Public Prosecutions, but that the Attorney-General's office should always be involved in such prosecutions. The right hon. and learned Gentleman in that debate said that if there were any difficulties about staff they could be fairly simply remedied and that more staff could be taken on to ensure that his office could deal with the matter satisfactorily.
I do not ask the Solicitor-General to answer my speech when he speaks; I ask him to answer his own. Perhaps 1197 he will tell us why he has not insisted with the Home Office that an Amendment should be introduced in this Bill incorporating the proposal which he presented so eloquently in December, 1958.
§ The Solicitor-General (Sir Peter Rawlinson)
If I may quote the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins), we all change.
§ Mr. Foot
That tempts me to read the Solicitor-General's speech on that occasion. I do not know whether I should do so. I am sorry to hear that he has changed. Perhaps he will tell us why he has changed, because he came back to this matter several times during his speech. I will read a bit of it, because the right hon. and learned Gentleman has provoked me. He said:This is a matter in which the Attorney-General should give a lead to prosecution. I appreciate the incredible amount of labour which is laid upon the back of an Attorney-General.Perhaps he has changed his mind about that. Maybe he has found the job of a Law Officer a light one. He went on to say:He has the task of advising, as principal Law Officer of the Crown, of explaining in this House, and of appearing for the Crown. It is a tremendous burden, but, nevertheless, it has to be undertaken. The Report says that in his memorandum to the Select Committee my right hon. and learned Friend the Attorney-General said:'It is a fundamental principle of English criminal law that proceedings may be instituted by private individuals.'I would certainly agree with that to a limited extent. But this is not the kind of proceeding in criminal law which should be brought by private individuals.I shall be glad if the right hon. and learned Gentleman will say whether he disagrees with that view. He concluded by saying:The Attorney-General is assisted by one qualified secretary and two qualified assistant secretaries. It seems precious little assistance to enable him to conduct the vast business that he has, and, therefore, it is the duty of Parliament to provide him with the staff which will enable my right hon. and learned Friend to bear the responsibilities we lay upon him, and to take over these other matters which are of great public concern and which should be responsibly accepted by him."—[OFFICIAL REPORT, 16th December, 1958; Vol. 597, c. 1025–26.]I should like to know the full reasons why the Solicitor-General has not 1198 succeeded with the Home Office in getting his Amendment into the Bill.
Several proposals were put forward by the hon. Member for the Isle of Thanet, who wanted Amendments dealing with a whole range of other matters. I am not sure whether each of them was to be incorporated in today's Bill. The hon. Member said that he wanted measures for dealing with the filthy postcard business. I should like to know from the Solicitor-General whether the activities described by his hon. Friend the Member for the Isle of Thanet in Blackpool are legal.
It may be that I should explain what the hon. Member for the Isle of Thanet said. He said that in Blackpool some of the postcards were brought before a kind of board, or committee, to decide which of them were proper, which of them should be proceeded against and which should not, so that the producers of the postcards would know whether they were safe. That was the procedure described by the hon. Member.
Section 3 of the 1959 Act states, however, thatAny articles seized under subsection (1) of this section shall be brought before a justice of the peace acting for the same petty sessions area as the justice who issued the warrant".I am not a lawyer, but it seems to me that what goes on in Blackpool is illegal under the Act, because people are not entitled to seize filthy postcards and make up their minds whether they will prosecute and to give indications concerning them to the producers of these postcards. Those who take the material must decide whether to prosecute.
That is the purpose for which they are given the warrant. It is not just for the purpose of snooping around and showing them to the members of the watch committee and deciding which ones they will allow to go ahead and which they will not, particularly when we are told by the hon. Member for Isle of Thanet—and I am sorry that he is not present—that there are different standards in Folkestone and Margate, that the situation is difficult for the people who produce the cards and a lot of people want to buy them. These people are as much entitled as anybody else to know what they are able to do under the law. The law should be as certain for them as it is for anybody else.
1199 In my opinion, those who produce these postcards are, at least, engaged in an activity which is less reprehensible than many other activities which are regarded as quite sedate and proper. They are, however, entitled to have the law made clear for them. Therefore, I want to know whether the proceedings at Blackpool which the hon. Member for the Isle of Thanet has described are legal. It might well be that they are a conspiracy. The hon. Member said that it is a friendly conspiracy, but who is he to judge? He is not administering the law. Under the existing law, I do not think that that would operate.
The hon. Member for the Isle of Thanet went on to say that he wanted to extend this kind of system to the book trade as a whole. He wanted a kind of books council which would decide which books were to be allowed to go free and which were not. He wanted a kind of book censorship board. I do not know whether he proposes to try to introduce an Amendment to the Bill to secure what he wants.
I must warn the hon. Member that if he goes ahead and introduces that kind of Amendment, there will be trouble in the Government, because the proposal for a book censorship board was made during the discussions of the Select Committee on my hon. Friend's Bill. At that time, the Foreign Secretary was Secretary of State for the Home Department. He said that if any proposal were made to introduce a book board censorship he would violently rebel against it. If the right hon. Gentleman says that he will rebel violently against something we had better look out and be careful. What tender ground we are trespassing on if that is to be the case! It is not my business to stir up trouble in the Government, but I warn them that if they persist with the proposal advocated so powerfully by the hon. Member for the Isle of Thanet, then at last the Foreign Secretary will rebel against them.
I shall not go into detail about the proposal put by my hon. Friend the Member for Stechford, who argued an overwhelming case for dealing with the loophole revealed by the "Fanny Hill" case—the denial to reputable publishers of the right to have their case tried by a jury. I am amazed that the Joint Under Secretary of State made no reference to 1200 this matter. Surely the Home Office considered it. Perhaps we shall be told whether it did so and whether it rejected this proposal. Is that what happened?
In any case, as the hon. Gentleman knows quite well, this affair has figured prominently in public discussion of the Bill. It was not treating the House properly not to have told us the feeling of the Government on this matter, which would make, perhaps, a big difference to our attitude towards this whole Measure. I hope that the Solicitor-General will not only discuss the merits of the proposal put forward by my hon. Friend the Member for Stechford, and the requests that he should insist, by one means or another, that any person prosecuted under the Bill shall have a trial by jury if he wishes. I hope that he will also tell us why it was that the Government, when they considered this matter originally—as they presumably did—decided to keep the proposal out of the Bill.
My hon. Friend put an overwhelming case. Of course, publishers will not flippantly make their choice to be tried by jury, with the possible penalty of imprisonment. But what is wrong in giving them a right to a fair trial? This is not only a matter of what degree of pornography people think should be permissible. It is a question of common justice to publishers who are engaged in a perfectly reputable trade. Indeed, many of us believe that they are engaged in a trade absolutely essential to the maintenance of all the traditions of this country, which we hear so much about.
They are entitled to be judged by their peers, by their fellow citizens. They are entitled to protection from the shameful indignity inflicted on the publisher in the "Fanny Hill" case. It is all very well for the hon. Member for the Isle of Thanet to say that we should not worry about that case, but we must consider the effect on the morale of the publishing trade and on printers. When a prosecution against a book like "Fanny Hill" succeeds, the numbers of other books suppressed on that account cannot be estimated. No one knows.
Anyone who reads the evidence to the Select Committee will see how many publishers indicated this following the prosecutions of 1954. Now, as a result of the astonishing verdict in the "Fanny Hill" case, many very highly reputable 1201 publishers are put back in the invidious position of not knowing what the law is. When hon. Members opposite say that this is a very simple matter, and the hon. Member for the Isle of Thanet talks as though the "Fanny Hill" case does not matter, they should remember that it is a question of considerable importance to the people who are engaged in producing books.
Those who are so dogmatic about this remarkable state of affairs which has arisen with the "Fanny Hill" case should remember that Mr. Robert Pitman, of the Sunday Express, who had previously set himself up as the Grand Inquisitor and chief censor and substitute hon. Member for Wimbledon all in one, and who has been pillorying one book after another, went into the witness box in the "Fanny Hill" case to say that it was a perfectly reputable book.
I do not know what are the views of the hon. Member for Wimbledon (Sir C. Black) about that book.
§ Sir C. Black
The hon. Gentleman cannot have been listening to my speech. I made no reference to that book whatsoever.
§ Mr. Foot
I do not say that the hon Member had, but in his speech he showed not the slightest interest in protecting any publisher. Indeed, his sole interest in making his speech was to try to assist in stiffening all the penalties.
As the "Fanny Hill" case has been the chief case which has arisen, it has 1202 been a legitimate deduction on my part to say that the hon. Member has not had any worries about the consequences of that case. What am saying about the "Fanny Hill" case is that a gross injustice was inflicted on a citizen who is engaged in an entirely honourable profession. It is the business of the House to try to prevent such injustices from occurring.
When we have such an example of such flagrant injustice, and the Government introduce a Bill precisely concerned with the matter, they should have applied their mind to the question even if the hon. Member for Wimbledon is prepared to back the Bill without knowing what are its consequences in reference to the chief case of recent months.
I hope that the Solicitor-General will tell us in detail what is his view of that case. Does he think that it is just that a reputable publisher, engaged in producing a bock which many people regard as a perfectly legitimate production, including those most suspicious about pornography, should be summarily condemned by a magistrate's court without any right of appeal? If he says that that is a proper process, he is twisting the purposes of my hon. Friend's original Act.
One of the purposes of the 1959 Act was to try to insert into the law—not in its exact form, but reproduced in legislative terms—the common sense and common decency of what Mr. Justice Stable said prior to the introduction of that Act. His verdict in the case of, I think, "The Philanderer", altered the situation a great deal and was incorporated in all the documents which preceded my hen. Friend's Act. The then Home Secretary, now the Foreign Secretary, also quoted it with approval, although I do not say that he approved every word. One cannot co-ordinate the verdict of that judge, which we were trying to incorporate in the 1959 Measure, with the result of the "Fanny Hill" case. Therefore, the right hon. and learned Gentleman ought to answer that.
As my hon. Friend the Member for Pontypool said, the whole of this subject is hopelessly out of proportion. Nobody knows exactly what corrupts and depraves. The hon. Member for Wimbledon is certain about it, but nobody 1203 else knows for certain. Nobody knows whether there is any connection between dirty books and juvenile delinquency. No such proposition has ever been remotely proved, but the hon. Member for Wimbledon is prepared to say that we should legislate fiercely and ferociously without knowing the connection between these matters.
I do not want to take any censorious measures about other media, but I suspect that some of the things printed in the Sunday newspapers are likely to corrupt and deprave much more than anything printed in books is likely to do. I do not want the newspapers to be suppressed on that account. I want the matter to be dealt with by public opinion. A much more powerful argument could be made for saying that some of the things printed in the Sunday Press corrupt and deprave than for saying that that happens by what is printed in these books. It must be remembered, too, that the Sunday newspapers are available to many more people than are the books, but the brave Government are not to take any measures against the newspapers on the ground of obscenity, because if they did they would be in trouble with their friends.
Let us consider next what one sees on television. I do not want to suppress anything on television. I believe that the problem should be solved by the free market play of ideas, and I have enough confidence in the public to think that truth and decency will win. I do not want any censorship, anywhere, but if it is said that the young are somehow being corrupted, I maintain that it is much more likely to be corrupted by some of the things which we see on television than by what is written in these books.
The young are very often much more corrupted by the kind of rubbish that is printed in some of our history books than by what they read in some of the literature which has been under discussion today, but we in this House do not discuss the contents of the newspapers, we do not discuss the contents of television, and we do not discuss the contents of the history books. I think that in most cases it would be most inadvisable to do so, but it is lopsided for us to spend so many hours, and indeed, days and years, introducing legislation to deal with obscene 1204 books on the ground, apparently, that we must do it to protect the youth of the country. We never consider any measures to influence other activities and other media, which, I should have thought, had a much more powerful influence on the minds of young people than these so-called pornographic books.
The House of Commons spent three or four years examining in every detail the Bill introduced by my hon. Friend the Member for Stechford. Two Select Committees considered it, and now, within a few years of the 1959 Act being passed, the Government say that the matter must be dealt with afresh. This is an astonishing state of affairs. Why should the Government be so fascinated with obscenity? It is all because of the dirtiest word in the dictionary, the forbidden three-lettered word "sex". That is the reason for it. It is because so many people have become absurdly obsessed with that idea that, somehow, so-called sexual sins are worse than any others.
I hope that the youth of the country will read what was said yesterday by Groucho Marx. He paid this country a great compliment. He said "There was no sham about sex; each side knows that it has it, and is kinda proud of it." Groucho Marx is a much healthier influence than this Bill, and in this sense and in many others I am an impenitent Marxist. He made a healthier kind of contribution than the prurient stuff that we have had from the hon. Member for Wimbledon, not so ably assisted by his hon. Friend the Member for the Isle of Thanet.
There may be another reason for the introduction of the Bill. It may be that the Cabinet assembled together and, even before they heard the speech of my hon. Friend the Member for Pontypool (Mr. Abse), thought that they should do something, apart from issuing stamps, to celebrate the 400th anniversary of our greatest poet, who was also one of our greatest pornographers. It may be that the Cabinet met to discuss how this should be done. Unfortunately, it has lost the services of several of its most intellectual Members. The right hon. Member for Wolverhampton, South-West (Mr. Powell) was not there to warn it, nor was the right hon. Member for Enfield, West (Mr. Iain Macleod) nor the right hon. Member for Birmingham, 1205 Handsworth (Sir E. Boyle), who used to be Minister of Education but who is now in the background. We might describe this Government as the Ministry of All The Buried Talents. They are not left in good fettle for dealing with these questions.
Eventually the Home Office came along with the proposal that we should celebrate the anniversary of Shakespeare by introducing this Measure. But even that ancestry cannot make me love it any more. It is a piddling little Measure. It should be treated with contempt. No doubt we shall have to go through the procedure of debating it in Committee and examining it in detail. We shall try to improve it, if we can. If there is nothing much else for the House of Commons to apply its mind to this summer we might as well deal with the Bill. We will try to make it a much better Bill than it is now—and that should not be difficult.
But I hope that the reception which the Bill has been given from hon. Members on both sides of the House will persuade the Home Office that it will not get away with it so easily in the future, and that it will cause the Home Office to apply its mind to some of the real social problems described by my hon. Friend the Member for Pontypool instead of abusing the good nature of this House by bringing forward Measures of this character.
§ 9.2 p.m.
§ Mr. John Cordle (Bournemouth, East and Christchurch)
I have also sat through the whole debate, and I have been interested and fascinated by it. At the same time, I have found it difficult to follow the arguments of hon. Members opposite and, indeed, my hon. Friend the Member for Norfolk, Central (Mr. Ian Gilmour). I find myself in a minority, with my hon. Friend the Member for Wimbledon (Sir C. Black)—and I am rather proud to be there.
I welcome the Bill. I believe that it will go a long way towards suppressing obscenity and pornography. I believe that a great sigh of relief will go up among all decent people—parents, school teachers and social workers—at the thought that, at last, something will be done to clean up bookstalls, even at so late an hour. In our effort to be fair to offenders and evil-doers we are 1206 sometimes extremely unfair to law-abiding citizens. This explains the failure of the 1959 Act. It was carefully drawn up in an attempt to safeguard literary men from persecution and, at the same time, to protect the innocent from corruption
I feel sure that many decent citizens would like to see the law changed so that not only low-grade pornographic publications from the United States are banned, but new canons of criticism are employed in judging the merits and morals of professedly literary publications. In my view, "Lady Chatterley's Lover" should be dumped into the Channel for a start, along with many similar types of book. Perhaps "Lady Chatterley's" bishop might benefit from a similar ducking.
As parents and politicians we are worried and alarmed by the report issued by the British Medical Association showing a considerable increase in veneral diseases among teen-agers and young people. Since 1957, there has been an increase of 62 per cent. among boys and young men, and 75 per cent. among teen-age girls and those in their early twenties—the age group from 15 to 21. I believe that much of this sad story is due to filthy books and pornography.
Anything that we can do in this House to protect young people from corruption during their formative yet undeveloped years is surely the plain duty of Parliament. This problem of obscenity is worrying especially mothers throughout the country, and I feel pitifully sorry for lonely young women who are trying to bring up a family when their children are exposed to these dangerous and obscene publications.
One such mother complained to me recently of the astonishingly detailed and intimate particulars which her daughter had learned from such a publication. The effect of all this is anti-social and militates against the conscientious and painstaking work of the school teachers and social workers of our day.
I have had complaints also from the clergy and, in particular, from the Rev. Gordon Guiness, a much respected clergyman in my constituency, who has recently written in his parish magazine:One of the problems we have to face is the degradation of morals in the nation. 1207 Those who are acting so as to undermine Christian morality whether from motives of money, profit, Communism or personal moral perversion are now in command. They sit in Parliament. They control theatres and cinemas and they debase the television and the Press.He goes on to say:The B.B.C. is also engaged in the propaganda of disbelief, doubt and dirt. The first Governors of the B.B.C. dedicated their headquarters to God with the prayer 'all the things hostile to peace and purity be banished from this house.The present controllers of programmes care more for the applause of men than the approval of God. As Christians, we must not only know what is going on, we must constantly exercise pressure to condemn evil and to praise good. We owe it to the coming generation at least.We cannot allow the exploitation of our young people for the sake of gain and profit. Therefore, it seems to me that the Bill must make it exceedingly unprofitable and almost impossible, if it is to serve any purpose, for anyone to corrupt or debase the morals of our young people by means of obscene publications.
I am proud to say that one of the prominent wholesale booksellers and newsagents of Bournemouth, Messrs. Thunder and Clayden, have continually refused attractive offers to handle imported filth, and have informed me of numerous occasions when samples have been sent to them. Bournemouth should be thankful to them for this private censorship. I can only wish that other agents in London and other parts of the country had taken as patriotic a view of the matter.
There are three main sources of corruption—the American paper-back novels, the so-called Soho photographs, and the pin-up magazines. As my hon. Friend has told us today, nearly 1½ million obscene novels were seized by the police and Customs authorities and presumably very many more escaped the vigilance of the authorities. Quite possibly, 5 million copies got through the net. The theme of these novels is much the same as the pin-up papers, which come mainly from America—sex and violence, violence and sex, illustrated with sleazy pictures.
The Soho photographs, showing acts of sexual intercourse and perversion, are nauseating. Enormous profits are made out of the sale of these pornographic photographs and without doubt the same applies to the novels and pin-up publications. 1208 I am very glad that my right hon. Friend has introduced the Bill. It is designed not only to plug holes which have been found in the existing law, but also to make it unprofitable and uncomfortable to deal in and handle and possess photographs and printed matter of the sort which we have been discussing tonight.
There is one further point which appears not to be covered by the Bill and I wish to ask the Minister whether a Clause could be included to cover the matter. When Mr. Kenneth Tynan was appointed literary manager of the new National Theatre, the New Statesman welcomed the appointment and praised Mr. Tynan for his part in makingkitchen sinks, lavatories, drugs, homosexuality and crime standard ingredients for success in the West End theatre.May I ask: is such a man fit and suitable to hold such an influential and important position?
The influence of the B.B.C. and I.T.V. in matters of morals is beyond computation. Yet many a home is subject to suggestive, dirty and corrupting plays and talks which often do serious harm before the viewer has had time to realise what is happening. I hope that with the Bill we may succeed in dealing with this problem, but unless the so-called sex confessions and horrid and lurid articles on misconduct, uncleanness and crime are excluded from publication by the national Press, especially the Sunday newspapers, our work here will be only half done. Surely, in dealing with obscene publications, we must do a thorough job. I hope that some of my comments will be considered for inclusion in the Bill so that we can safeguard our children and our families.
§ 9.12 p.m.
§ Mr. F. H. Hayman (Falmouth and Camborne)
I had not intended to intervene in the debate, but the speech by the hon. Member for Bournemouth, East and Christchurch (Mr. Cordle) compels me to do so. I feel that we cannot but regret extremely that the hon. Gentleman now represents Bournemouth, East and Christchurch instead of Mr. Nigel Nicolson, whom we in this House admired. I admired the fine speeches which he made here, although once he was an opponent of mine.
What has just been said by the hon. Member must make his Front Bench 1209 colleagues wonder very much whether they were wise to introduce the Bill. I hope that at least they will be warned that in this House we ought not to be guided too much by individual opinions on what may be pornographic or indecent or anything else of that sort.
§ 9.14 p.m.
§ The Solicitor-General (Sir Peter Rawlinson)
The subject which we have been debating today has underlying it matters on which everyone in this House has deep and serious feeling. It is a problem, a grave and serious problem that we have been debating. The anxiety and concern referred to by my hon. Friends the Member for Wimbledon (Sir C. Black) and Bournemouth, East and Christchurch (Mr. Cordle) appear to be very widely shared by many people in this country today. I do not think the seriousness should be underestimated.
The hon. Member for Falmouth and Camborne (Mr. Hayman) brought as it were a word of warning and the moderation of the middle road, as I understood his suggestion and contribution, to the considerations we should give to these matters. I do not know if he heard earlier some of the speeches which were made from the other side on this matter.
§ The Solicitor-General
The hon. Member will appreciate that people feel very seriously about this grave problem. The hon. Member for Pontypool (Mr. Abse) in a remarkable speech, which degenerated into party political controversy, asked when reciting the history of pornography what was the reason for this Bill? The reason for this Bill is to strike at and to hit what I might call the Soho bookshop and the importers of prurient pornography. That is the responsibility, and the proper responsibility, of the Government of the day.
Following the Select Committee Report, Parliament tried in the Act of 1959 to strike a balance by providing effective machinery to punish and deter pornographers. I can say with confidence that it is clear from the concern expressed by some hon. Members opposite about this matter that they too would wish to see it stamped out. Parliament 1210 in 1959 wanted to provide effective machinery to deal with pornographers, to be able to deal with the mass of pornography and yet not to convict or destroy in any case where the publication is justified as being for the public good. It is inevitable in such an exercise that those who emphasise, as some hon. Members have done today, the social need to punish and destroy are branded by some articulate gentleman as philistines and prudes, while those who emphasise the intellectual need to permit publication would be branded as libertines and corrupters, but the Act of 1959, which the present Bill seeks to strengthen, was born of compromise.
To follow what the hon. Member for Falmouth and Camborne said, no group has a monopoly of intellectual superiority or literary knowledge or cultivated taste. I think there is a reaction both ways to a sensible compromise. For people of moderate and sensible views on both sides of this House will appreciate that Parliament must and should lay a duty on the Government of the day to prevent, punish and destroy pornography. The 1959 Act, a3 has been said by many hon. Members in this debate, had the objects of providing, for the first time, a statutory definition of obscenity: secondly to provide a defence of liberty or artistic or other merit, and, thirdly, to strengthen the law against pornography. The last was a very important objective.
Since then loopholes have appeared. The hon. and learned Member for Derby, North (Mr. MacDermot) who spoke with such skill from the Front Bench opposite, referred to the case of Clayton, which is mentioned in the Explanatory Memorandum to the Bill. That was a case in which it was held that where a charge is preferred under the Act in regard to the publication of an article to a particular person the test which has to be applied is what the effect of the article in question is on that person. Was it such as to tend to deprave or corrupt him?
The hon. and learned Member seems to think that it was clear under the 1959 Act that that would be the decision of the Court. I would refer him to the "Lady Chatterley" case. There there was publication to a police officer. Since it 1211 has been held that a police officer engaged in such work is incorruptible, and it is obvious that the corruptibles are usually unwilling to give evidence, the effect of the Clayton case was that it was impossible to charge an offence of publishing an obscene article in such circumstances. The Bill is designed to close that loophole. Certain hon. Members have spoken against any form of censorship and against any form of restriction upon the power of persons to publish pornography. Nevertheless, I think that hon. Members on both sides of the House want to see that loophole closed.
§ Mr. MacDermot
Does not the hon. and learned Member agree that if this is the reason for the change, then there is a fundamental shift taking place in the balance which was struck in the 1959 compromise, because it means that in future prosecution is not to be based on an actual publication in a certain sense which might do harm but purely on possession with a view to publication in a certain sense?
§ The Solicitor-General
The hon. and learned Gentleman must permit me to continue. I have set out the objectives of the 1959 Act. They have been stated by the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins), who played such a large part in placing that Act on the Statute Book. It was then said strongly that one of the objectives was to prevent pornography and to stamp it out where possible, and also to punish pornographers. The hon. and learned Member referred to a quotation from Lord Birkett,Dirt for dirt's sake".Let me remind him that there is a lot of dirt for money's sake—and a great deal of money, too.
§ Mr. MacDermot
The only alteration in the law by the 1959 Act to get at dirt for dirt's sake was an alteration in the law of forfeiture procedure.
§ The Solicitor-General
There was the alteration in the law of forfeiture and there was a definition of obscenity, but what is clearly wanted is that there should not be the difficulties which arose, and have arisen since, because of the Clayton case, as a result of which the evidence of a police officer to whom publication is made is no longer avail- 1212 able. As I understand it from some speeches, it is agreed that this situation should be prevented, if there is to be either prosecution or proceedings for forfeiture, whether before a jury or before magistrates. This is a method of obtaining evidence which in the past the courts in this kind of case have seen as proper and appropriate.
The procedure of the test purchase by a police officer was not a procedure for the benefit of a publisher or a procedure intended to lead to a friendly prosecution. This is a misconception. It is rarely possible to get evidence of publication of an obscene libel in the ordinary course of business because by its nature it is a furtive transaction with the purchaser perhaps an accomplice and in any case a very unwilling witness.
The courts therefore accepted that obscenity was one of the few fields—rationing was another—in which it was appropriate to obtain evidence by law enforcement officers in effect procuring breaches of the law. Nor is the purpose to facilitate prosecution rather than proceedings for forfeiture. In the "Lady Chatterley" case, where there was a sale to a police officer, the choice was not between prosecution and forfeiture proceedings, but between an arranged sale to the police officer and a sale after publication to a member of the public.
I want to deal with a point raised by the hon. Member for Stechford and my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies) who has advised me that he is unable to be here for my reply. There is a misconception that Section 4 defence is not available on a charge of conspiracy. I suggest to the House that this is a misconception and that such a defence is available. If a publication is in the public good, which is what the defence would establish, then there can be an agreement, but it will be an agreement to do something which is not an offence.
I repeat the assurance given in regard to a conspiracy to corrupt public morals by the present Lord Chancellor when he was Attorney-General. This assurance has also been given by the present Attorney-General; that a conspiracy to corrupt public morals would not be charged so as to circumvent the statutory defence in Section 4. Section 4 may be 1213 available in any event indirectly, but I willingly repeat that assurance which has been given. I am instructed to say that my right hon. Friend the Home Secretary will consider everything said today and further consider the question of conspiracy to corrupt public morals.
The collusive sale, the matter raised by the hon. and learned Member for Derby, North, would be no good in the case of the Soho shop and the exposure for sale suggestion would be no good either because there would have to be a corruptible person and that would not arise if the article were brought out from under the counter and handed to a police officer. As my hon. Friend the Member for the Isle of Thanet pointed out, it is publication for the purpose of sale for gain, as Clause 1(2) states:… a person shall be deemed to have an article for publication for gain …And there the important words are "for gain". It is the view of the Government that if one is to stop this trade and deal with importers, one must have that definition.
The second loophole to which reference has been made, although not a great deal of discussion has turned on it, was the case of Mella v. Monahan—the display of priced articles in the shop—and the third the case of Straker. A choice which inevitably must come in these cases—and this is what concerns hon. Members—is the decision to choose between prosecution and forfeiture. The choice has to be made on the basis that Parliament has provided these two remedies or weapons in the armoury of the administration of the criminal law. The choice must be made in accordance with principle in the proper administration of the criminal law.
Section 2 is the punitive weapon and Section 3, forfeiture, the preventive weapon. The general rule has been that it would be oppressive under Section 2 to proceed against and prosecute a man who, so far from deliberately breaking the law, has taken all possible action to avoid breaking it. That is the first principle, and the second is that there must arise the consideration of convenience; there are cases of about 800 books being seized, and if there are 12 members of a jury to consider the matter, one can see that having 800 charges it would be impracticable and impossible 1214 effectively to administer the criminal law if one had to prosecute in all such cases. Therefore, Parliament has given the law enforcement officers these two weapons to use.
I turn to the case of "Fanny Hill" to which the hon. Member for Ebbw Vale (Mr. M. Foot) referred.
§ Mr. MacDermot
Before the Solicitor-General leaves that point, does not what he has said mean that if the prosecutions are to deal with bulk stocks held by the pornographer it is not practicable to put that before a jury because the sheer volume and number of books is too great? If that is so, it means that the prosecution will be open to proceed on forfeiture. If that is what the Bill is aimed at, and they are to be bound to go to forfeiture, why make it a criminal offence?
§ The Solicitor-General
We can use the second one as well. Because we can use it as a punitive weapon and prosecute the person concerned for the publication of certain numbers—one book, three books, whatever it may be—but we still want to be able, if we are wishing to get at pornography, to deal with the vast bulk that remains with the bookseller, and with which importers, who are using them literally as ballast for cargo, seem to be flooding our shores.
I would remind the House that "Fanny Hill" appears to have been part of the ordinary stock-in-trade of what have been called pornographers, certainly for generations. I do not know whether all the people who were involved in the prosecution of "Fanny Hill" were prigs, but during the 14 years since 1950 there have been 15 sets of proceedings in respect of that book. Eight were prosecutions, seven were proceedings for forfeiture, and in every case there was a conviction or an order for destruction—
§ The Solicitor-General
Of the eight prosecutions, four were summary proceedings before magistrates, and four 1215 were on indictment before a jury, so a jury have decided on the obscenity of the book. Only one was after the 1959 Act, and that was when "Fanny Hill" was one of a group of books—which two booksellers were charged with conspiring to publish. The special defence would only have been available if pleaded and made out on every book, but it was not so done.
Pre-1959, "Fanny Hill" had been through the courts very often; the lady had been convicted by a jury on three occasions. It is important that, at any rate, there have been verdicts of a jury. I am telling hon. Members some of the facts concerning this particular matter because it is relevant that "Fanny Hill" has been the subject of prosecution, and also of forfeiture proceedings, 15 times in the last 14 years—
§ Mr. Roy Jenkins
But we are talking of cases where evidence in support of literary merit is put, and whether in that case it should be before magistrates or a jury, so I cannot see the relevance of saying that it took place before a jury in the days before that evidence was admissible.
§ The Solicitor-General
No one knows in the "Lady Chatterley" case whether, when the prosecution did not succeed, it was on the question of whether the book was not obscene or was published in the public good. In regard to "Fanny Hill", the first test, as to obscenity, has been dealt with by a jury. After 1959 it was open to the publishers of "Fanny Hill" to intervene in the forfeiture cases, and they did intervene in two of them, to give evidence. If it is said that there should always be a right of trial by jury and that it would only be used by so-called reputable publishers, I would inform the House that in October, 1962, there were proceedings in regard to books with such titles as "The Race with Lust", "The Restless Virgin" and "Red Rape". In these particular proceedings this defence of merit or the public good was raised, so we have to consider very carefully whether, as is suggested in some quarters, we can ignore the fact that disreputable publishers or publishers of pornography would not pray this defence in aid in order to clog up the courts, 1216 because that defence is what they did raise in October 1962.
As I have said before, dirt is money in this trade, and if we are to tackle the pornographer we must have the weapons to enable us to deal with persons who are producing this kind of material, and deal with them effectively and strongly.
The considerations taken into account in the case of "Fanny Hill" were the change in the law which has arisen as a result of the case of Clayton and, secondly the fact that when the police in the execution of a warrant went to these publishers they apparently took no more steps to see that there would be publication thereafter. Also there was at that time no evidence of an offence by the publishers. The question was whether steps should have been taken to hunt out that evidence, but in the circumstances prevailing at that time that was the decision taken. The hon. Member for Stechford went on to refer to the fact that there ought to be in his view a trial by jury in such proceedings.
§ The Solicitor-General
Yes, the right, whether the proceedings be for prosecution or for forfeiture. I would say straight away that there is certainly no objection in principle to proceeding for forfeiture, leaving aside prosecution, being tried by a jury in a court of criminal jurisdiction. It would be an innovation, but that is certainly not something that should prevent it from happening. There are problems and they may not be insoluble, but there should be considerable hesitation before this particular procedure was introduced.
All I can say to hon. Members is that what the hon. Member for Stechford had to say on this point will be carefully studied by my right hon. Friend. It is accepted that there is no objection in principle, but one has to consider what would be the effect on quarter sessions, and what would be the effect on the criminal law, of juries of 12 people being asked to take away hundreds of volumes and read them. We also have to take into account that the pornographers, not pure and not simple, might well plead the special defence which is provided 1217 under section 4. Therefore, while it certainly will be considered, and, indeed, has been considered, nevertheless I point out to the House the considerable difficulties which exist in this field.
This is a Bill which when it was introduced by my hon. Friend the Joint Under-Secretary earlier today met with some shot and shell from both sides and from different quarters of the House and, as I said when I opened my speech, it is obviously a matter of grave interest and grave concern. I beg the House not to underestimate the real problem that here exists and the real damage and the real danger that can be created by this usually sadistic material which is flooding into and around the country. Hon. Members were concentrating on obscenity in matters of sex, but this material is very often sadistic. It is right that the Government should take these weapons and I believe that the Bill provides an extra weapon for that armoury and I commend it to the House.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).