HC Deb 10 May 1968 vol 764 cc760-84

11.15 a.m.

Mr. Hugh Jenkins (Putney)

I beg to move Amendment No. 2, in page 11, to leave out lines 35 to 39.

The Bill as presented to the House on Second Reading did not contain the present subsection (2)(b) of Clause 17. That paragraph provides that a person taking part as a performer in a performance of a play directed by another person shall be treated as a person who directed the performance if without reasonable excuse he performs otherwise than in accordance with that person's direction". That paragraph was introduced by my right hon. Friend in Committee. I expressed some doubt about it at that time. Since then those doubts have been confirmed, and I want to suggest that the Under-Secretary should consider the possibility of dropping that paragraph altogether, as suggested in this Amendment.

It seems to me that if an actor did offend as suggested, in other words, if in a manner which was not envisaged by the director in presenting the play, the actor uttered words or made gestures which were held to be obscene and the director was held to be responsible for that obscenity, and proceedings were taken as provided for in this Measure, that actor might not, I think, work again very quickly. I believe, therefore, that one of the unforeseen consequences of the Bill will be that in future, once it comes into force, actors will be extremely careful to make sure that they do not introduce business or words which are not provided for in the original direction. I think it very unlikely that even if this paragraph (b) were not in the Bill an actor in future would perform actions which would have the result of making a producer liable; because, obviously, it could have an effect upon the possibility of his future employment.

For this reason it seems to me, on balance, that the best thing to do about the paragraph would be to take it out, because it is unnecessary. If, however, my hon. Friend is not persuaded of this view—I hope he will be, but if he is not so persuaded—I should like him to consider the other Amendments to the Clause, Amendment No. 1, in page 11, line 39, after 'direction', insert: 'provided that if the director or his representative shall raise no objection to a variation of performance carried out for three performances or more the director shall be regarded as having approved and accepted responsibility for such variation and the performer shall not thereafter be regarded as the director of the performance'. and No. 3, in line 39, after 'direction' insert: Provided that if the director or his representative shall raise no objection to a variation of performance carried out for three performances or more the director shall be regarded as having approved and accepted responsibility for such variation and the performer shall not thereafter be regarded as the director of the performance and provided further that directional responsibility of the performer shall be limited to the variation of performance for which he is alleged to be responsible. Before I speak about those, I should like to make one other point on Clause 17 as it is. It seems to me that the Clause might have the effect that a director might seek to shelve responsibility on to an actor. One can conceive the possibility that, in the event of proceedings being taken under the Bill, proceedings resting, possibly, upon the manner in which an actor performed, the director might seek to say, "Of course, I did not really intend him to do it that way and the responsibility for it is his for acting in the way he did, rather than mine." It seems to me, therefore, that the Clause has these two fundamental objections. One is that it is unnecessary because of the economic relationship between actor and director. Secondly, it might be an indication to a director to attempt to push off on to an actor the blame, if blame there were, for an obscene action and to say that, perhaps by the twist of a wrist, he converted a blessing into an obscene gesture, or something of that sort, and that the responsibility was not that of the director.

It would be better if my right hon. Friend decided on balance not to have this Clause in the Bill, but if he is not convinced by that argument I suggest that the Clause should be amended. The Amendments I have suggested, if the Clause is to be retained, have a twofold purpose. If this matter were to go to a Division, which I hope will not be necessary, I hope that it might be your decision, Mr. Speaker, that Amendments Nos. 2 and 3 would be appropriate for that purpose rather than Amendment No. 1.

The first proposal is that if the director or his representative shall raise no objection to a variation of performance carried out for three performances or more the director shall be regarded as having approved and accepted responsibility for such variation and the performer shall not thereafter be regarded as the director of the performance. The object of that will be clear. If an actor carries out a performance in a certain manner and if the director or his representative, seeing the variation carried out on three occasions or more, fails to say, "No, this is not in the business", he assumes responsibility for that and the actor is no longer responsible for the variation. This is necessary because otherwise there might be a variation of the performance put into the play and carried on over a long period and after several months the director might say, "This is not mine; this is his."

If an actor carries out a performance in a certain manner there surely comes a time when the performance is approved by the director. After the first presentation of the play, the director is seldom at the performance, but he has a staff. He has a stage manager and assistant stage manager whose duty it is to see that the performance is carried out in the way he wished it to be presented. Therefore, if the stage manager does not correct or change a performance in that time it may be assumed that the performance is approved and accepted.

After my first proposal to change the Clause, three separate lawyers told me, without being prompted, that there was another and even more evil consequence in the subsection which had escaped my attention. It is that, as the Clause is at present worded, if an actor carried out a performance, or a gesture, or spoke words of the type suggested, and if subsequently or before that time under the direction of the original director something obscene had been carried out, the actor would acquire responsibility for the play as a whole. He acquires responsibility, not only for what he has done, but for everything which the director has done.

In the Clause as worded, if there were actual obscenity in the play by the intention of the director, without any limitation whatever, the Clause provides: a person taking part as a performer in a performance of a play directed by another person shall be treated as a person who directed the performance"— That is without any qualification— if without reasonable excuse he performs otherwise than in accordance with that person's direction". He becomes the director for all purposes without qualification upon a single action and he is liable with reference to any offences carried out by the director.

My right hon. Friend might perhaps consider withdrawing the Clause, but if he does not so wish I hope that he will feel able to accept Amendment No. 3.

Mr. G. R. Strauss (Vauxhall)

My approach to this problem is very much the same as that of my hon. Friend the Member for Putney (Mr. Hugh Jenkins). The responsibility should not normally be on the actor if the play in which he is performing is an obscene one. That responsibility must rest fully on the presenter and/or the director of the play, but it was put to me that there is one situation in which the actor ought to bear responsibility. This was the argument put to me by the Society of West End Managers. I think it was a sound one. For that reason, in Committee, I moved an Amendment to which my hon. Friend now objects.

The situation which the Society envisages is the possibility of a play produced in London which may be a borderline one—say, a bawdy farce—but after a time, when it is performed by the same or by by a touring company in the country an actor, perhaps the lead, finds that he can get more laughs and be more popular if he inserts words which were not in the original script, or makes gestures which together render that play obscene although it might not have been so before.

I emphasise that the only charge that can be made against a play and on which a prosecution must be based is that it is obscene as a whole. It is therefore exceedingly unlikely that a few words inserted by an actor or a gesture by one actor would make the play as a whole obscene. It must also be remembered that no action can be taken without the consent of the Attorney-General. I think the Society was quite right in saying that if that happened and, contrary to the directions given to him by the director and perhaps without the knowledge of the director, an actor made a play which otherwise would be inoffensive, obscene, the responsibility cannot rest on the director, but it must rest on someone if a prosecution is to take place.

In those circumstances, and those alone, it must rest on the actor. The circumstances in which this sort of thing could arise are unlikely to occur often, if at all, but they might. If a play which is a borderline case is presented there is, it seems to me, a special responsibility on the actor to see that he does not turn it into one on which a prosecution could be successfully launched. Therefore, it is right to retain this provision, although I hope that it will never be operated. Probably it rarely will be.

11.30 a.m.

My hon. Friend suggests that there should be Amendments to achieve three things. I have considered these proposals carefully. I have been given legal advice by the Government's advisers that the Amendments are unnecessary and, indeed, may be dangerous. My hon. Friend's first proposal is that, if an actor ad-libs or makes gestures which may turn a play as a whole into an obscene one, and if he does it for three days or more, with the knowledge of the director or of his representative, who when a company is on tour is usually the company manager, the actor shall be absolved from responsibility. My hon. Friend wants to insert a provision to that effect.

I am advised that the answer is—it seems to be the common-sense one—that this is not necessary and that it would be a perfectly good defence for the actor that he committed the alleged offence with the knowledge of the producer or his representative. If he proved that, he would not be found guilty. Therefore, it is quite unnecessary to make such an Amendment.

My hon. Friend suggests, secondly, that words should be inserted which would absolve the actor from all responsibility in these circumstances. By doing so the Bill would single out one range of circumstances which would absolve the actor. It would give him one line of defence—one excuse, inserted into the Bill and, therefore, carrying the force of law.

I am advised that that would be a dangerous thing to do, because, if a Bill singles out one line of defence against a possible prosecution, it can be held, and often is held by the courts, that that is the only line of defence. It would make it impossible for the actor to plead other excuses and take other lines of defence, even if they were available to him. Therefore, words to this effect would be dangerous from the actor's point of view. They might deprive him of what might otherwise be a successful defence. My advice, which I impart to the House, is that for the actor's sake it would be unwise to insert the suggested words.

The last point, which arises in the new Amendment my hon. Friend has tabled, is that the actor should be absolved from responsibility, even if he has himself used words or gestures which might be lewd and which are not in the script, but which would not in themselves cause offence, when other things are said or done by other actors which, together with the actor's own actions, make the play an obscene one.

I am sure that that is not necessary. An actor could not be charged as a director with putting on or directing an obscene play if those parts which are alleged to be obscene were done, not according to his direction or on his order or request, but as a result of the action of somebody else. It is inconceivable that any action should be taken against such an actor for allowing something or ordering something for which he had no responsibility whatsoever. Not only would there be no case, but it is inconceivable that the Attorney-General would allow a prosecution of that sort to be taken.

My hon. Friend's fears about the difficulties in which actors might find themselves are, I am convinced, not justified. I hope that I have been able to allay them. However, I realise that this is an important matter and that many people in the acting profession are worried about the position they may find themselves in as a result of the passage of the Bill. Some of them fear that they may be brought to court for an offence for which they were not responsible.

I believe that the Amendments are not necessary and that the Clause as it stands is all right. However, in view of my hon. Friend's plea, I shall be very happy to look into the points which he has raised and into the present wording of the Clause. If I find that the advice which has been given to me is wrong, and that my hon. Friend is right, which I do not think will happen, I will certainly consider asking those who are responsible for the Bill in the Lords to insert an Amendment to remedy that defect. I hope that with this undertaking, my hon. Friend will be prepared to withdraw the Amendment.

Mr. Hugh Jenkins

Would my right hon. Friend, if he were so advised, be prepared to advise his friends in another place that on reflection the Clause is unnecessary?

Mr. Strauss

I am perfectly happy to look at the whole thing. My hon. Friend will realise that I am in partnership with the Home Office, because we are promoting the Bill together. The view of the Home Office will have to be considered. I assure my hon. Friend that I shall be happy to look at the whole matter. If it appears that my views are wrong—I am pretty sure that I am right, because I have studied the matter very carefully—I will ask those who are responsible in the Lords to reconsider the matter and, if necessary, to put forward a correcting Amendment.

The Under-Secretary of State for the Home Department (Mr. Elystan Morgan)

I have been very impressed, as I trust that the House has been, by the arguments advanced by my right hon. Friend the Member for Vauxhall (Mr. Strauss). The House will appreciate the generosity—indeed, the magnanimity—with which he has undertaken to look at the matter again. I am sure that my right hon. Friend has given that undertaking, not because he is in any doubt about the fundamental necessity for subsection (2)(b), but from an abundance of caution.

There are, no doubt, technical defects in Amendment No. 1. It refers to a variation but does not state what the variation is a variation from or by whom it is occasioned. It would provide that, where a performance has been carried out on three occasions without objection from the director or the presenter, there shall be no proceedings thereafter. Therefore, presumably, even after being absolved from proceedings for any performances after the third, under the Amendment it would still be possible for proceedings to be brought for the first, second or third performances. The Amendment seeks to impose a wholly unnecessary gloss on subsection (2)(b).

It could be dangerous, as my right hon. Friend said, in that it would tend to delimit from a wide range of circumstances cases in which the actor would be absolved from liability. It could be argued also, that, where the director had passively acquiesced in the introduction into the basic script of some fresh material, that certainly would not come within the prohibition in paragraph (b).

I need say no more about Amendment No. 2. Inasmuch as it would delete the whole paragraph, it goes wholly contrary to the unanimous acceptance of the paragraph by the Standing Committee. However, I concede that my hon. Friend the Member for Putney (Mr. Hugh Jenkins) gave notice at the time that he would wish to think about the matter again.

Amendment No. 3 is wholly contrary to a fundamental principle in the Bill. It is wrong to regard the ad-libbing of the actor in vacuo, as it were, as separate and apart from the whole question of liability. The basis of liability under Clauses 2, 5 and 6 is in each case the performance taken as a whole. Therefore, it is not as though the introduc- tion of foreign material by the actor were something which would stand apart from that. It is the very act which causes the transformation of a play not otherwise obscene, contrary to public order or good standards in race relations; it is the words or gestures of the actor himself which bring about the transformation. In such circumstances, it would be wrong to absolve the actor from the liability which he would bring upon the director or presenter. He has brought about the situation, and it would be inequitable by any standards that he should be free from blame and liability in such a case.

There is the converse situation, too. If the play is a borderline play, it is possible for the actor to transform it fairly easily. If it is a play which does not come within a mile of the relevant prohibition, the actor himself has the greatest possible protection. He can ad-lib substantially, bringing in material which by itself is bawdy or obscene but because that material is, as it were, diluted by the general character of the play, he avoids liability.

The general principle underlying this paragraph is that, where an actor, like any employee or anyone in a subservient capacity, acts in a way wholly contrary to the general or specific directions of the person employing or directing him, where he goes off on a frolic of his own, he cannot claim the indemnity which would otherwise be available to him as an employee.

The House will note that the effect of the Bill is to absolve actors from liability generally. That liability exists at present under the Theatres Act, so that a substantial benefit is here being conferred upon the actor.

11.45 a.m.

Mr. Antony Buck (Colchester)

I was interested to hear that the right hon. Gentleman the Member for Vauxhall (Mr. Strauss) and the Under-Secretary of State for the Home Department are partners on this Bill. I had not fully realised that that was the situation.

These Amendments have been fully explained twice over now. Speaking for myself, I agree with what was said by the right hon. Gentleman, but I was glad to hear his assurance that he would look at the wording of Clause 17(2)(b). It seems to me that the wording there is not altogether felicitous to deal with the situation envisaged. If an actor were by a single gesture to do something which the director had not authorised and thereby render himself liable, it is going a little far to cause him to be regarded as directing the performance as a whole. It seems to me, therefore, that the point made by the hon. Member for Putney (Mr. Hugh Jenkins) has some substance in it, although, because no proceedings may be brought save with the leave of the Attorney-General, difficulty would arise only in rather remote circumstances. I feel that the paragraph would be better if reworded.

After the full explanation of the interesting points raised by the Amendments, I hope that the hon. Gentleman will accept the advice of his right hon. and hon. Friends.

Mr. Hugh Jenkins

May I have the leave of the House to speak again?

Mr. Speaker

Order. The hon. Gentleman does not need leave. It is his Amendment.

Mr. Jenkins

Thank you, Mr. Speaker. I shall in a few moments ask leave to withdraw the Amendment, having regard to the full explanations given and, in particular, the undertaking given by my right hon. Friend the Member for Vauxhall (Mr. Strauss). I was rather more impressed by what he said than by the observations of my hon. Friend the Under-Secretary of State. I must remind my hon. Friend that this Bill is that of my right hon. Friend and myself. I am one of the sponsors, and it has nothing to do with my hon. Friend at the Home Office. He is here merely for the purpose of giving the Government's opinion. We are glad to have that opinion, it is most valuable to us and we should not know what to do without it, but the Bill is not his. He is giving the Government's approval to the Bill, and without that approval we could hardly hope to have it passed, but the Bill is that of my right hon. Friend and myself, not his Bill.

Mr. Speaker

Order. The hon. Gentleman must not pursue that further. We are considering an Amendment.

Mr. Elystan Morgan

On that point, Mr. Speaker, may I say that my hon. Friend is giving us a shattering glimpse of the obvious. I claim no property in the Bill, but my hon. and learned Friend the Member for Lincoln (Mr. Taverne), my predecessor in office, made clear on Second Reading—

Mr. Speaker

Order. Some of this might be germane on Third Reading. I doubt it. We are on an Amendment now.

Mr. Jenkins

I entirely accept your guidance, Mr. Speaker. You are, as always, entirely right.

A valuable point which has emerged from the discussion is that it seems possible that, when a question arises in the future and the Attorney-General is, perhaps, balancing cases in his hand and considering what he might do in certain circumstances, he may wish to turn up this debate and discover what was said by the sponsor of the Bill.

I am glad that my right hon. Friend has undertaken to have the Clause looked at again, because I share the view expressed by the hon. Member for Colchester (Mr. Buck) about it. Even if the intention be right, it is infelicitously worded at present. This opportunity is one of the benefits we have from the existence of the other place.

In the circumstances, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Order for Third Reading read—[Queen's Consent, on behalf of the Crown, signified.]

11.49 a.m.

Mr. Strauss

I beg to move, That the Bill be now read the Third time.

The principles of the Bill were fully discussed on Second Reading and there is no need for me to repeat the arguments put forward then. However, I should like to say a few words before the House passes the Bill. First, I should like to interpret the remarks I made just now which my hon. Friend the Member for Putney (Mr. Hugh Jenkins) picked up. When I said that I was in partnership with the Government on the Bill I of course meant that it has been brought before the House by myself and other sponsors, of whom my hon. Friend is one, but that throughout it has had the warm support of the Government, and that the exceedingly difficult problem of drafting it and implementing the Joint Select Committee's recommendations has been done by the Government—the Home Office in particular—and their draftsmen, and a very good job they made of it. It was only in that sense, that it is a co-operative effort, that I meant that I was in partnership with them.

It has been remarkable and gratifying to me and all the other sponsors of the Bill that we have progressed to the present stage so quickly and smoothly. I expected a long and bitter battle over the Bill and that we should have strenuous opposition from those elements in the House that are always fearful of libertarian advances and resist them. That has not happened. I think that the reason is that the Report of the Joint Select Committee which considered the matter was unanimous and that that Committee contained Members of both Houses many of whom are very distinguished and eminently respectable. I believe that the Report carried a great deal of weight with the House. I believe that another reason is that the Report was exceedingly well argued and presented an irresistible case.

Moreover, the Bill was welcomed by almost the entire Press and I think that it is generally realised that the principles it contains reflect the strong dislike of all British people for the concept of censorship of freedom of expression, particularly when it is arbitrarily done by one man against whom there is no appeal. The sponsors find the almost unanimous view with which the Bill has been received in the House most satisfactory and we hope that it augurs well for a speedy passage in another place and that it will there receive a similar sympathetic approval.

It is remarkable, too, that in a matter of this controversial nature I have received so few letters of protest from individuals or organisations. I have received some, mostly from those connected with the theatre, and I have tried as far as possible to meet their objections and worries. On the whole it has been possible to allay their fears, and only in one respect—that referred to by my hon. Friend in regard to the actor and his responsibility—has it been desirable in my view to amend the Bill.

There was very little controversy in Committee except on one subject, the representation on the stage of heads of foreign countries and members of the Royal Family. We had an interesting debate on that and at the end of the day the Committee came to the conclusion that there should be no restriction there, I think broadly for the same reason that the members of the Select Committee came to that conclusion, which was that it was unnecessary, invidious and wrong that there should be any greater restrictions on the liberty of expression in the theatre than there was in books or in the Press. The Committee turned down that proposal, and I am sure that it did so correctly.

The Select Committee pointed out that this change from censorship by the Lord Chamberlain, which has existed for over 230 years, to a system of freedom subject to the laws of the land and prosecution on grounds of obscenity, or perhaps individual action by people who believe that they have been libelled, might well bring about a temporary state of difficulty and unsettlement in the theatre. The Committee realised that, and I realise it, and I warn the House that it is possible that after the Bill is passed there may be a period of some difficulty. Plays may be put on which are objectionable to some sections of the community on political, religious or moral grounds. Voices may be raised, perhaps strong voices, demanding that there should be prosecution, and that the Attorney-General should either permit a prosecution or launch one himself. He may be the subject of considerable public controversy when he refuses to launch a prosecution which some people think desirable.

We cannot ignore these possible troubles, and if they develop it must not be said that this House, when passing the Bill, was unaware of the danger. But I am convinced that if we go through such a period it will be temporary, and that after a short time the Attorney-General will have no greater difficulty in carrying out his duties under this Bill, when it is enacted, than he has under the Obscene Publications Act. We have the experience from the other countries, practically all the democratic countries in the world, which have no pre-censorship whatsoever and have no difficulties. There is every reason to believe that the same situation will develop in this country after a short time.

The British theatre has a deservedly high reputation, which has greatly increased in recent years, largely because we are fortunate in having in this country outstanding dramatists, actors and producers. That process has been helped by the generous support given by the Government to the theatre through the Arts Council. It is my belief and, I think, that of all of the sponsors of the Bill and all our leading dramatists, that the Bill will open up to the British theatre further possibilities for advance. It will not only do that but it will remove from our Statute Book an embargo on the freedom of expression which is contrary to all the traditions of our country.

11.58 a.m.

Mr. Douglas Dodds-Parker (Cheltenham)

I shall take up only a few minutes on this occasion as I was in the happy position of being on the Standing Committee which considered the Bill. The right hon. Member for Vauxhall (Mr. Strauss), whom we congratulate on the Bill, was in a position to make a speech because I, my hon. Friend the Member for Chelsea (Mr. Worsley) and some of my other hon. Friends last night put down the Motion without which neither the right hon. Gentleman nor I would have been able to speak under the new procedure.

I was not quite certain what the right hon. Gentleman meant when he said that some hon. Members are against libertarian advances and added that the Bill opens up further possibilities of advance. That did not seem to me to come out in Committee. The right hon. Gentleman said "libertarian", but I might be tempted to use the phrase "licentious advances", because that is what I think a number of people are frightened about. I do not think that public opinion throughout the country is quite as sophisticated as some hon. Members are. The right hon. Gentleman said that he had received few protests, but this may be because there has been very little publicity about the Bill, and until it is passed and becomes effective we shall not be able to see what may come out of it.

I speak entirely as a layman on all this. I have no close knowledge of the theatre, as have the right hon. Gentleman and the hon. Member for Putney (Mr. Hugh Jenkins). It would be a pity if the Bill went to another place without our taking the opportunity of Third Reading to underline certain points which arose in Committee and which I believe are still unanswered.

I can understand that today right hon. and hon. Members opposite are very preoccupied about yesterday's events, but it is encouraging that the House can meet on an occasion like this and talk about something which I believe is of importance to the individual. I should not like the Bill to leave the House without our saluting the Lord Chamberlain who, over a period of 230 years has carried out this very great service to the country and the theatre. Not only because of this form of pre-censorship but from other points of view, a play that has been passed by the Lord Chamberlain goes out throughout not only this country but a large part of the English-speaking world with his imprimatur and is therefore accepted as being in good taste. Our interesting discussion earlier this morning shows how difficult it is to legislate for good taste. Indeed, it is very often impossible. But we are legislating here not for the 90 per cent. of people who accept good taste but for the small remainder.

I am sure that the House would agree that this time in history is a good one at which to dissociate members of Her Majesty's Household from personal responsibility for this task. But I do not believe in change for the sake of change. There will be no pre-censorship now. There will be a strange difference between the theatre and the B.B.C. on the one side and the I.T.A. and the film industry on the other. The British Board of Film Censors gives certificates to films in accordance with certain criteria, and in recent years this has not led to any complaints. I agree that for the reasons that the hon. Member for Putney gave this morning the theatre is different from the film in this respect. The film is fixed for all time, but the individual actor can vary a play.

In Committee we raised the question of what would happen if the Sovereigns or members of the Royal Family—but particularly Sovereigns—had something said about them in a play. What action could they take in the courts? It is all very well to say that we should apply the law of the land, but it is not clear how the Sovereign could take action in the courts of law. I should be grateful if this could be cleared up by the Under-Secretary or by someone else in due course in another place. I do not think that the situation is satisfactory as it is left at the moment.

Finally, it is not clear to me, as a layman, who takes action under Clause 6. The Clause says that it shall be an offence if the performance, taken as a whole, is likely to occasion a breach of the peace. Who decides this? I am not a Catholic, but I can understand a Catholic objecting to a play about the Pope. Such a person might create a breach of the peace about it and be told to pipe down because it was not an offence. Would such a person then have to punch the manager of the theatre on the nose or throw something at the actors on the stage so that he might find himself in court for creating a breach of the peace? His point would then have been made in the courts. I should be glad if this point could be looked at before the Bill goes to another place.

I welcome the principle of getting rid of the Lord Chamberlain, but my mind will remain open about the advantages of the changes that are being made until I have seen the Bill working for two or three years.

12.5 p.m.

Mr. Hugh Jenkins

I join in the congratulations offered to my right hon. Friend the Member for Vauxhall (Mr. Strauss) on successfully carrying his Bill through to this stage. I think that his chairmanship of the Select Committee was perhaps a necessary preliminary to the easy passage that this Bill has had. His long experience in the House has enabled him to know precisely what one can and cannot do. I think perhaps that on the occasion when I had a Bill before the House I should not have failed with it if I had had my right hon. Friend's long experience in the House.

I do not think that the hon. Member for Cheltenham (Mr. Dodds-Parker) is right in saying that the disappearance of the Lord Chamberlain would create a new difference between the theatre and other forms of performance entertainment. On the contrary, the theatre has been singled out for special treatment inasmuch as at present the Lord Chamberlain is operating at the script stage, intervening before the production is ever seen. With other forms of production such censorship arrangements as there are operate after the event and not before. It seems to me that the Bill will bring the theatre nearer to the other forms of public entertainment and not create a separate position for it.

On behalf of some of my fellow sponsors—one or two could not be present this morning and asked me to convey their apologies—I congratulate the chief presenter of the Bill, and express the hope that the Bill will have a continued easy passage through Parliament. In view of what I said earlier about the intervention of the Under-Secretary, I pay a personal tribute to the help which the Government Front Bench and the Under-Secretary in particular have given the Bill.

12.7 p.m.

Mr. Marcus Worsley (Chelsea)

I am in some agreement with the right hon. Member for Vauxhall (Mr. Strauss). I am in agreement with him in my surprise at the lack of opposition to the Bill. I also find myself in agreement with him in my desire not to repeat arguments which I have already made.

However, I wish to say at this stage that I do not find the Bill more to my liking than I found it at earlier stages. In spite of the impressive Blue Book and the rest, I do not think that a case has been made out for treating the theatre differently from all the other peforming arts. I agree with my hon. Friend the Member for Cheltenham (Mr. Dodds-Parker) that there is an overwhelming case for dissociating Her Majesty's Household from any relationship with the theatre. I am sure that no one would wish to continue the present system in this respect, including the present Lord Chamberlain.

What has not been made out—I disagree with the right hon. Gentleman's phrase about there being an irresistible argument here—is a case for treating the theatre differently from, for instance, the cinema. I pressed the right hon. Gentleman in Committee, and eventually he told me that the difference was one of cost and that there was a distinction of quality. I could not help reflecting—and I did so all the more when he talked about the partnership that he had with the Home Office in this matter—how strange it was that a Labour Member of Parliament was advocating a Bill which gave a greater freedom to those who could pay more than to those who could pay less. That is a strange distinction. Carried to its logical conclusion, the result would not be the Bill but a form of censorship which would put the theatre in a very different position from the fleapit round the corner.

What we are deciding in the Bill is that the theatre alone among the performing arts should be treated as literature, whereas the cinema, for example, should be treated differently. I do not believe that this is right. Whatever the system should be for the performing arts, it should be across the board, and I do not see the weight of this distinction.

The system on the literary side at the moment permits a flood of pornographic literature. The taste for pornography at the moment is very strong. I have a nasty feeling that the theatre may wish to compete. But the much more serious point is from the point of view of those producing serious works of literature. The right hon. Gentleman talked of those fearful of liberatarian advance. I do not believe that I am such a person but I do believe that a system of the sort he is advocating will be uncertain. He himself has admitted this, at least in the short term. He says that there will be a difficult period.

I feel that this difficult period will continue and that, if it ceases, it will cease only because theatre managements have become timid as a result of the sort of case coming forward. That is the substance of my case. I am not arguing for a strictly controlled theatre but I do say that the best way of ensuring a reasonable degree of freedom is some way in which a management can find some security against prosecution thereafter. The right hon. Gentleman is advocating a new form of post-censorship to replace the present system. I believe that this will be more uncertain and therefore that in the long run it will be to the ill and not to the good of the theatre.

The theatre in this country is exceedingly vigorous. I do not believe that there is a country in the world with a theatre more vigorous. That is why above all else I feel so doubtful about changing the system so radically. The right hon. Gentleman says that no other country uses such a system but if one looks at the small print of his report one finds that, in many Western European countries, there is provision for banning plays or something of the sort. It is not just the fact that other countries with which we may feel most in common have a simple system of the sort we are advocating.

I have a feeling still that the long-term result of the Bill may be to the disadvantage of the British theatre. That is why I would not like the Bill to go through without at least a caveat from me.

12.04 p.m.

Mr. Michael Foot (Ebbw Vale)

The speech of the hon. Member for Chelsea (Mr. Worsley) at least illustrates that serious arguments are involved and that no one should be deceived by the amicable nature of this debate. We have had a series of profound arguments on all the questions that the hon. Gentleman has posed. We had them in Committee and earlier in the Select Committee.

I join my hon. Friend the Member for Putney (Mr. Hugh Jenkins) in congratulating my right hon. Friend the Member for Vauxhall (Mr. Strauss). I am extremely doubtful whether we would have reached this stage of getting the Bill so near the Statute Book had it not been for my right hon. Friend's brilliant chairmanship and leadership throughout this affair. The theatre owes him a great debt for achieving what so many have attempted and failed to achieve over the last half-century. It is chiefly his skill which has ensured that the Bill has gone through so successfully.

We should also thank the Home Office, in particular, my right hon. Friend the Chancellor of the Exchequer, who, as Home Secretary, gave encouragement to those who wished this to happen and was, indeed, responsible for the setting up of the Select Committee. I dare say that he also had some say in the choice of membership, which no doubt assisted the process. My right hon. Friend the Chancellor is one of the authors of the Measure.

I want also to mention, as I have done previously, one other person—former Member of this House and a friend of many of us, Mr Benn Levy, who has campaigned over the years for this change. All of us in favour of the Bill have been greatly fortified and assisted by the arguments he has presented to us. I am sure that my right hon. Friend the Member for Vauxhall will be the first to agree that, fundamentally, it has been the campaigning of Benn Levy and the League of Dramatists which has achieved this result.

Mr. Strauss indicated assent.

Mr. Foot

That brings me to the suggestion of the hon. Member for Chelsea that we are putting the theatre in a kind of privileged position. What we are, in fact, doing is to remove from the playwright the obstacles and impediments which have prevailed upon their literature. No one should be under any misapprehension as to the hardship to which playwrights have been subjected over the past 250 years during which this system has been in operation.

I do not wish to stir up controversy at this stage, but I cannot join in the tributes paid to the Lord Chamberlains over these years. Like all other censors, they have made themselves utterly ridiculous. That is in the nature of their office. All censors make themselves ridiculous eventually and the Lord Chamberlains have been no exception, and that includes the recent Lord Chamberlains. They have been making themselves ridiculous because their function was quite impossible for any official, including an official of the Crown, to discharge.

What the Lord Chamberlains have done in trying to execute this impossible function is to impose serious hardship on many of the most eminent playwrights of our country. I do not need to go through the list again, but on many occasions some of our leading playwrights have been denied a right to put on the plays they wished because of the pre-censorship system or have had their livelihood interfered with on this account. That is the evil we have set out to do away with. We have paid attention to the special claims of those who write for the theatre.

You yourself, Mr. Speaker, have engaged in this activity and no doubt you will be relieved that your play will not be subjected to pre-censorship. I hope that we shall have the pleasure of seeing it at a London theatre. Perhaps it will be the first play advertised as "The play the censors could not touch". I hope that you will have a long run with it—even longer than your run in this House.

I shall not follow the hon. Member for Chelsea in trying to draw the ineffable distinction between liberty and licence. Wiser men than we have tried and failed over the years. They have merely made fools of themselves in trying to draw such a distinction. I think that we are making the institution of Lord Chamberlain slightly less ridiculous than it was, although it still retains some of its other ridiculous attributes. In making him slightly less ridiculous, we are at the same time affording greater freedom to a section of the community who have perhaps contributed more to the glory of our country than any other section has done.

12.9 p.m.

Mr. Buck

I, too, congratulate the right hon. Member for Vauxhall (Mr. Strauss) on the work he has done in the Joint Committee and in piloting this Bill through the House. It is an interesting Measure. It has been fully discussed on Second Reading and in Committee quite apart from the Joint Committee.

I want to say a word of praise, which was not forthcoming from the hon. Member for Ebbw Vale (Mr. Michael Foot), for the Lord Chamberlains throughout the last 250 years. I was a little saddened to hear what he had to say about them. We have certainly the finest theatre in the world. This desirable, happy and vigorous state of affairs has come about in spite of the suggested evils of the censorship system imposed by the Lord Chamberlain. Surely it can hardly have been such a harsh and rigorous system if such a happy state of affairs has come about for the theatre.

That officer of the Crown has made great contributions to the preservation of good manners, decorum and public peace within the realms of the theatre, to quote the words of the 1843 Act, under which he has operated for so many years.

I had some doubts about the movement away from pre-censorship, but I was persuaded largely by the evidence of the Lord Chamberlain himself to the Committee as to the inappropriateness of his rôle today. It is interesting to see the flexibility which ancient officers of the Crown can adopt in giving evidence, because it was the officer himself who said that perhaps the time had come for his post to go. That shows a flexibility of attitude which is praiseworthy. That convinced me. It seems to me right that we should make this move.

This move will lay much greater responsibility even than in the past on the good sense of playwrights, directors and producers. I hope very much that we shall not have a spate of near indecencies or near-pornography. I hope that producers will not try and cash in on this. I hope that if there are such tendencies, the Attorney-General will act, and do so quickly and boldly, to see that that does not come about. I have confidence in the Attorney-General that he will act in that way.

Although I do not see that this will enable Britain's theatre to make a further great step forward, as seemed to be suggested by the right hon. Member for Vauxhall, there is a good prospect that we shall continue to have in our theatres which are the finest in the world, good manners, decorum and nothing which will go against the public peace. That is my fervent hope and I trust that it will be fulfilled in the coming months. I hope, too, that we do not see any of the trouble which the right hon. Member for Vauxhall suggested might happen.

Speaking personally, therefore, I give, the Bill a limited welcome and I congratulate the right hon. Member for Vauxhall.

12.22 p.m.

Sir Dingle Foot (Ipswich)

Five years ago, I had the privilege of introducing under the Ten Minute Rule a Bill to abolish complsory censorship by the Lord Chamberlain. That Bill was rejected by a very large majority. I also had the privilege of giving evidence before the Select Committee. Therefore, I rise to offer the warmest congratulations to my right hon. Friend the Member for Vauxhall (Mr. Strauss). It is a considerable Parliamentary achievement for which not only we in the House of Commons, but generations of playwrights yet to come, as well as theatre audiences, will have reason to be grateful.

We have had the ridiculous system of censorship ever since the days of Sir Robert Walpole. It was imposed entirely for political reasons to oppress criticism and satire directed against his Government. It is, therefore, entirely appropriate that it should be a Labour Government which removes this system of censorship which, as has been said, is unique in the whole world. This is a considerable Parliamentary occasion. We might, perhaps, end our proceedings today when the House rises with the lines of G. K. Chesterton: And a voice valedictory.… Who is for victory? Who is for liberty? Who goes home?

12.24 p.m.

Mr. Elystan Morgan

I join right hon. and hon. Members who have tendered their congratulations to my right hon. Friend the Member for Vauxhall (Mr. Strauss) on the Bill and I evince the hope that it will have a smooth and speedy passage through its further stages. I trust that with one or two distinguished exceptions hon. Members will accept that the Bill will be a solution to a problem which has long vexed those who are concerned with the liberty of expression.

I certainly have no intention of answering—that is not my role—certain arguments put forward by the hon. Member for Cheltenham (Mr. Dodds-Parker) lest my hon. Friend the Member for Putney (Mr. Hugh Jenkins) should accuse me of too fervent an espousal of the Bill. I stress, however, that the effects of the Bill do not mean theatrical licence but merely that the theatre has been put on the same basis as the publication of the printed word.

The hon. Member for Cheltenham has, however, raised one or two technical matters and it might be appropriate if I briefly refer to them. He has mentioned films. As the House will be aware, there is no Government censorship of films. Statutory control rests with local cinema licensing authorities and they usually, but not always, follow the classifications issued by the British Board of Film Censors. That is a non-statutory body which was set up by the trade in 1912.

The hon. Member asked what would be the position of the Sovereign in law. As was mentioned in Standing Committee, it is probable that in relation to the law of defamation the Sovereign stands in the same position as every other subject, but, obviously, in practice, difficulties would occur.

In so far as the protection of the Sovereign in law is concerned, I refer to page 171 of the Joint Committee's Report and the advice there tendered by the then Solicitor-General, my right hon. and learned Friend the Member for Ipswich (Sir Dingle Foot). It is possible that in an extreme case, the law of sedition could operate. Sedition is classically defined as follows at page 218 of the 12th edition of Vol. 1 of "Russell on Crime": Generally speaking, any words, acts or writing in respect of the public acts or private conduct of the Queen which tend to vilify or disgrace the Queen, or to lessen her in the esteem of her subjcts, or any denial of her right to the crown, even in common and unadvised discourse, may be punished as sedition". The last point raised by the hon. Member for Cheltenham was the question of who prosecutes under Clause 6 of the Bill. The prosecution would be in the ordinary way, in the ordinary pattern of criminal prosecution.

The hon. Member raised the further question of how it is decided whether a breach of the peace is involved. The operative words of the Clause are did so with intent to provoke a breach of the peace". The fact that no breach of the peace might have occurred is not in itself conclusive. Indeed, conversely, the fact that a breach of the peace did occur on the part of the audience again is not conclusive with regard to a person's guilt or innocence. Under Clause 17, the test at all times is the intent at the time of the director, the presenter or the actor in the play. It is, it would seem, an objective test.

Mr. Dodds-Parker

Why is the word "or" and not "and" used between paragraphs (a) and (b) of subsection (1)?

Mr. Speaker

Order. The hon. Member knows that on Third Reading we cannot amend a Clause of the Bill.

Mr. Morgan

I accept your Ruling, Mr. Speaker. That is a matter which I can take up again with the hon. Member elsewhere.

It only remains for me to remind the House that the position of the Government is not one of neutrality, as might have been supposed by my hon. Friend the Member for Putney. As was explained on Second Reading and in Committee, it is one of a declaration of support for the Bill and the affording of all facilities in assisting in its drafting. Therefore, the Government wish it well.

Question put and agreed to.

Bill accordingly read the Third time, and passed.