§ Lords Amendment No. 5: In page 3, line 31, after "illustrates" insert "human".
§ Mr. Speaker
I suggest that it would be convenient to consider at the same time Lords Amendment No. 6, in page 3, line 35, at end insert:(3) A prosecution for an offence under this section shall not, in England and Wales, be instituted except by, or with the consent of, the Director of Public Prosecutions.
§ Mr. Goodhart
That would be convenient, Mr. Speaker.
When Clause 4 was added to the Bill on Report in this House, every hon. Member who spoke agreed that it was desirable to put a stop to the practice of sending out circulars advertising books illustrating sexual techniques. But they all also acknowledged that the Clause as it stood would have some curious side effects. Clause 4 as passed by this House would have made almost any publisher in the land liable to prosecution for sending out in the normal way to members of the public—not at random to people who have not necessarily asked for the publisher's list—the normal spring or autumn roster of books intended to be published, since almost every publisher has on his list some book which, in the words of the Clause,… describes or illustrates sexual techniques.Thus, if the Clause went through un-amended, it would, as my hon. Friend pointed out on Report, make it illegal, for example, for any publisher of an encylopedia to send out a circular or letter advertising any work which described, say, the sexual life of a newt. That is not what the proposer of this worth-while Clause had in mind.
It was, therefore, hoped on Report that the other place would make substantial Amendments to Clause 4 so that it would make sense. That has been done in two ways, reflected in the two Amendments we are considering. Amendment No. 5, to insert the word "human", 1825 was proposed because, without that word, the Clause would have the curious side effect of making it illegal to send out any circular advertising any pamphlet or book on artificial insemination in animals. It was pointed out that the Minister of Agriculture has in the past sponsored the publication of such pamphlets. Thus, if he were to draw attention to the publication of pamphlets which he himself had sponsored, he would be performing an illegal act under Clause 4. Clearly, that would be non-sense. Thus, Amendment No. 5 withdraws from the ambit of the Clause the whole question of artificial insemination in animals, which is so important to the farming community.
That still left the question of, as it were, nonsense prosecutions because, as I have pointed out, almost every publisher in some book is possibly at risk. Almost every publisher has on his list some book which describes in scientific or medical terms some aspect of sexual technique. He would be liable to prosecution if anyone cared to bring him before the courts, and the prosecution really could not fail under the terms of the Clause as it stands. The effect on the publishing world would be very serious indeed without amendment of the Clause.
The question was how we could carry out the intention of the House to eliminate the undesirable circulars which so many of our constituents have received while limiting the threat of frivolous prosecutions. The other place wisely decided that the best way in which to deal with the problem was to add another subsection:A prosecution for an offence under this section shall not, in England and Wales, be instituted except by, or with the consent of, the Director of Public Prosecutions.That means that no prosecution will be brought unless the Director of Public Prosecutions is himself convinced that the publisher concerned is in fact attempting the practices which we in the House unanimously have felt to be undesirable and an invasion of people's privacy.
§ 11.30 a.m.
§ Mr. E. S. Bishop (Newark)
I rise to speak to the Amendment only very briefly, because I know that the whole 1826 House and thousands of men and women in the country are anxious that we should get on to the Anti-Discrimination Bill of my hon. Friend the Member for Wood Green (Mrs. Joyce Butler). I should like first to say a word of commendation to the hon. Member for Beckenham (Mr. Goodhart) for the way he has put this important Bill through Parliament.
At one stage, I was one of those who initiated the inclusion of Clause 4 to deal with the numerous publishers of this kind of advertising and literature. We are concerned with kinds of publications which give much offence to many people. Only this week, more people in my constituency have been complaining to me about the Julian Press, whose advertising is such that the descriptions of the techniques mentioned cause offence to people that they are even thought to be the kind of people interested. One of my constituents said that she and her husband went through their post with the children in the morning, and she said that this kind of circular caused them grave offence. I hope that the action now being taken will stop this kind of offensive literature being sent round the country.
It is not a matter of whether we are offended or consider it to be objectionable. Rather we should heed the sensitivity of many other people in the country. Some say that people should have the right to see and hear and experience what they wish, that there should be no censorship. Whether one agrees with that or not, one has to accept that those who are offended by the things they see or hear have a right to be protected by Parliament against things which cause affront, and I am glad that we are acting in this way today.
We sometimes tend to forget that the duty of Parliament as the Prayer Book reminds us—and the Prayer Book has been accepted by Parliament over the centuries—is the maintenance of true religion and virtue and the punishment of wickedness and vice. Today we have reached the stage when it is difficult to decide what is virtue and what vice, and I hope that we can do more in the days ahead through legislation of this kind which has the support of both Houses to end some of the things to which people rightly object.
1827 Nowadays, when the Press seem to believe that sex must be in all the head-lines in order to sell the papers, while at the same time the newspapers decry our obsession with sex, more and more people are feeling that there should be far more protection for those who feel sensitive about it. The House will do well to accept the Amendment to do what we had in mind when the matter was before the House earlier.
§ Mr. Percy Grieve (Solihull)
I join my hon. Friend the Member for Beckenham (Mr. Goodhart) in the general welcome which he has given to the Amendments from another place. I should like to make one comment about the limitation to human technique and the Clause generally as it now stands.
For the reasons my hon. Friend gave, it is plain that this was a necessary Amendment, and it greatly improves the Clause. Were it not made, material sent out by perfectly respectable firms dealing with agricultural matters would have been caught by it, and they might have found themselves, subject to the limitation of the approval of the Director of Public Prosecutions, liable for prosecution, and that would have been a wholly invidious position but for the protection given by the second Amendment.
I should like to say a word or two about the Clause as it stands with the Amendment. Some doubt has been expressed in a number of quarters whether in fact the Clause as now amended in fact does what those who first proposed the Clause sought to do, that is, to bring within the ambit of the Bill material which, while not itself describing or illustrating sexual techniques, advertises material which describes or illustrates sexual techniques. The distinction is perfectly plain.
The circulars sent out by the Julian Press have been the subject of comment by many hon. Members on both sides of the House, but those circulars in themselves do not contain obscene material. Those circulars in themselves do not describe or illustrate sexual techniques. What they do is to advertise material which describes or illustrates sexual techniques, and as such they are an affront to many people who receive them.
1828 I do not believe that there is any hon. Member who has not received numerous letters from constituents who have been affronted in this way and who are entitled to have their privacy in their own homes protected from such affront.
§ Mr. T. H. H. Skeet (Bedford)
I notice that Clause 4 goes on to sayor advertising material for any such publicationIt may be that it would be covered by that, but my hon. and learned Friend is on an exceedingly good point and certainly the Minister ought to look into it.
§ Mr. Grieve
I am grateful to my hon. Friend. In fact that is the point to which I was coming. It is questionable whether the Clause as now amended does what the House has obviously sought to do. Personally—perhaps I am sticking my neck out, as they say—I think that it does, although that will be a matter for construction in the courts. I believe that the words of limitationwhich describes or illustrates sexual techniquesgovern the reference toany book, magazine or leaflet which he knows or ought reasonably to know is unsolicitedand that by adding the words in the parenthesisor advertising material for any such publicationwe have in fact saved the advertising material from being governed by the wordsdescribes or illustrates sexual techniques".The point I am making, and I hope that I am not making too heavy weather of it, is that it is a matter of construction and that in my view the situation is saved and that the court will say that the material which advertises material which describes or illustrates sexual techniques will be caught by the Clause. I hope that that is so. That is what we all desire.
It will have to be dealt with in the courts in due course. There is a danger here but, whether or not there is a danger, we have taken an important step forward in dealing with what has become a most pernicious practice in our community and one which has affronted a great many people.
I equally welcome Amendment No. 6, which makes prosecution subject to the 1829 consent of the Director of Public Prosecutions. We all know that there is a large field of the criminal law in which offences are committed which have been created by Statute, where it would be perfectly possible for frivolous complaints to be made. Indeed, the ordinary citizen himself has a right to bring a prosecution. Unless there were some such limitation as this, one might find the courts inundated by frivolous prosecutions. It has therefore been the practice for a a very long time for Parliament to state that in such cases there shall be no prosecution without the consent of the Director of Public Prosecutions.
An interesting example is the Theft Act, 1968. By section 30 it is possible for a spouse to be charged with the theft of the other spouse's property. But the consent of the Director of Public Prosecutions is necessary. Otherwise the courts might have been subject to an infinite number of prosecutions, I will not say necessarily frivolous prosecutions, but prosecutions that might have been affected by emotions running extremely high; and which thereby could be frivolous and vexatious prosecutions. Therefore, Section 30(4) of the Act lays down that such prosecutions can be initiated only with the consent of the Director of Public Prosecutions. That is a good example of what has been done in a very large number of Statutes and the present is quite obviously a most proper case for so providing. I am extremely glad that their Lordships have made this Amendment, and I join with my hon. Friend the Member for Beckenham in welcoming it.
§ Mr. Charles Fletcher-Cooke (Darwen)
I welcome Amendment No. 6 wholeheartedly, particularly as the rather wide wording of the Clause might lead to difficulties, especially as regards the words… sends or causes to be sent …I did not have the benefit of hearing the debate on Report, and until I read the Bill I had expected that this act would be limited to sending through the post or sending by public delivery of some sort. That is not the case. Clause 6, which is the definition Clause, states:'send' includes deliver, and 'sender' shall be construed accordingly".1830 That is a very wide definition indeed, and might be held to include merely handing a book to a friend, or something of that kind, which is delivering it. What I think Members of this House and members of the public are particularly incensed by is the use of the Royal Mail for the purpose of disseminating this much. It is that that they particularly wish to stop.
On a strict reading of the Clause as drafted, even the most innocent or the most private form of delivery is inhibited. If an hon. Member were to hand, even for the purpose of study or academic study, to another hon. Member in the Library material as example of this work or advertising, as I understand the definition of "send" that would, prima facie, be an offence.
§ Mr. Kenneth Lewis (Stamford and Rutland)
If someone were handed a publication of any kind, be it booklet or pamphlet, and the person concerned presumably did not want it, that would not in such a case be solicited. The recipient, however, would be able to refuse it, and that handing over would not come within the provisions of the Clause.
§ Mr. Fletcher-Cooke
By Clause 4 the offence is committed by the sender—the person who sends—and not by the recipient, whether or not the recipient is a willing recipient. The willingness or otherwise of the recipient is neither here nor there. In the cases that are usually given the recipients are very unwilling recipients, and it is they who bring these matters to our attention.
I am therefore extremely glad that we should have this safeguard, as the opportunities for prosecution would otherwise be enormous.
Amendment No. 5, by which the offence is limited to the illustration of human sexual techniques, makes one wonder whether their Lordships and my hon. Friend the Member for Beckenham (Mr. Goodhart) are perhaps too innocent in these matters. It seems to me that a really go-ahead pornographer would have no difficulty in dressing up the figures with slight characteristics of monkeys, gorillas, or the like, or dressing them up in, not sub-human but in angelic or celestial form—as, say, angels or archangels. They would thus escape the 1831 definition of human sexual techniques, but would to all intents and purposes achieve the objectives that pornographers seek. Has my hon. Friend the Member for Beckenham considered whether this Amendment does not perhaps offer a hole through which the go-ahead pornographer might drive a coach—I will not say horses, in case I worry the bishops—
§ Mr. Ernle Money (Ipswich)
Will my hon. and learned Friend consider the situation in which material could perfectly properly demonstrate animal sexual techniques and so be perfectly acceptable in the farming community but, sent unsolicited through the post, could, although perfectly proper in itself for its purpose, cause offence? One thinks particularly of the situation in regard to bulls, and animals of that sort.
§ Mr. Fletcher-Cooke
There is that very grave danger, and there is even graver danger of the problem of mixed human and animal—the problem of bestiality, which is a really serious matter. I hope that my hon. Friend, their Lordships and the bishops are satisfied that the phrase "human sexual techniques" is sufficient to cover the problem of the crime of bestiality.
§ Mr. Money
I spoke in support of Clause 4 on Second Reading, and I particularly welcome Amendment No. 6, which provides for the prior consent of the Director of Public Prosecutions. Although in the past there was something which most people thought of as a motor car more than anything else—the Attorney-General's fiat—for many classes of offence, I hope that the consent of the Director of Public Prosecutions will be taken as a rather more serious matter with regard to establishing a consistent policy for prosecutions of this type.
One of the grave difficulties of trying to enforce a consistent policy with regard to obscenity and pornography has been the wide divergence of magistrates' courts in regard to the common law and, indeed, to some statutory offences. We 1832 have had the ludicrous attitude of some magistrates' courts to accepted works of classical fiction. One thinks here of the Swindon magistrates, who accepted a prosecution in regard to "The Decameron". I therefore hope that the proposed insertion here of the consent of the Director of Public Prosecutions will be accepted by the courts as building up a pattern which will apply throughout the country. Nothing is more unsatisfactory than the position which often arises regarding the licensing of films and plays. Nothing is more unsatisfactory about prosecutions of specific works than the fact that something which is prosecuted and dealt with severely in one area may not be illegal in another.
The advantage of the provision is that it is in effect mandatory. It does not initiate a test of obscenity which must be considered by justices. It introduces a mandatory offence, subject to the fact that the matter will go through the hands of the Director of Public Prosecutions and he will be able to say whether a prosecution is justified on the basis that it needs the attention of the legislation, or whether, as was indicated in the debate on this matter in another place, some publications—for instance, a recent number of Which—which are perfectly respectable in their intent and content and should not justify the kind of frivolous prosecution—
§ Mr. Cormack
Surely what my hon. Friend is saying is not entirely relevant because Which is issued only to subscribers and therefore is not unsolicited.
§ Mr. Money
I take my hon. Friend's point. But there is lacuna in that it is heavily distributed to non-subscribers on the basis of seeking subscriptions and could fall within that part of the legislation dealing withadvertising material for any such publication.I turn to the principal point on which I welcome the second part of the Amendment. I hope that this will be treated as the basis in future legislation—and I think that future legislation will be needed to deal with many of the problems of obscenity—for establishing a common pattern so that people, and particularly magistrates, know where they stand and will not act in the dark. To that extent, I hope that the consent of the Director 1833 of Public Prosecutions will be treated as a reality and not merely as the attractive medieval anachronism which the "motor car" known as the Attorney-General's fiat represents.
§ Mr. Onslow
My welcome for Amendment No. 6 is more qualified than that of my hon. Friends. I do not think that the Clause goes far enough. Nothing would satisfy me more than that the earth should open and swallow up Julian Press, its stock, employees, wives, cattle—the lot. Most of my constituents feel the same. At the height of the campaign which it was running in my constituency last year, when I was receiving 10 or 15 letters a day on this matter, I think that even the condign punishment which I have just outlined would have been thought to be generally inadequate.
I suppose that it is necessary that we should welcome the qualification of the powers of prosecution which the Clause gives. But I hope that it is not inappropriate to enter a plea that the attitude which the hon. Member for Newark (Mr. Bishop) outlined is not that which necessarily guides the Director of Public Prosecutions. It is not right to define the problem we are seeking to deal with simply in terms of sensitivity. I do not accept the argument that we have to defend the tender susceptibilities of some among us on the basis that insensitivity is the norm unless grave personal affront is caused to individuals by it.
I do not think that "permissive" is the correct definition of the society in which we live. In many cases, a more accurate description would be to say that it is a "dictatorial" society. The hon. Member for Newark said that some people say that everyone has a right to see and hear what he or she wishes. That is true. It is as true of the majority as of the minority. The majority of people —and I believe this to be the case in this context—have a perfect right not to see and hear things they do not wish.
I take it that it is a fairly democratic proposition to say that the minority of people have no right to force their standards on the majority. My hon. Friend the Member for Ipswich (Mr. Money) talked about people having the right to know where they stand. That applies with as great force to the people who are 1834 not sensitive but who genuinely do not want to have this stuff forced upon them. I therefore hope that the criterion of prosecution will not be that there are some shrinking violets among us who must not be trampled upon but that there are standards which no one has a right to force on society and that when there is infringement in this respect there should be no hesitation to prosecute.
§ 12 noon.
§ Mr. Ridley
It might be for the convenience of the House if I were to say a few words now about the Amendments. Perhaps what I say will give second thoughts to some hon. Members. My intention is not to bring the debate to an end but to bring some ideas to the attention of hon. Members about what I think is admitted by all to be rather difficult matter from the point of view, not so much of intention, but of the law and of what we are doing.
We are all very sad that the hon. Member for Roxburgh, Selkirk and Peebles (Mr. David Steel) is not able to be with us. In a way, he got us into the difficulties which my hon. Friends have been discussing, and we wish that he was here to give us the benefit of his views on how we should get out of them. There has never been any dispute in any quarter of the House that the issue of circulars such as that issued by the Julian Press and others which hon. Members will remember should be stopped. There has never been any doubt that we should like to see the obnoxious practice of sending circulars through the post—many of them offensive in themselves but others advertising offensive material—brought to a complete end. Our difficulty is how to do it.
When on Report my hon. Friend the Member for Beckenham (Mr. Goodhart) and myself independently came to the conclusion that there were some defects in the Clause, we wished in no sense to prevent the intention of the Clause from being fulfilled. We simply wondered whether the Clause as drafted would achieve its object. Since the House demonstrated by the vote on that occasion its will that a Clause of this sort should be included in the Bill, the Government felt it right that the Clause, as it comes back to us from another place, should be allowed to stand. Indeed, we 1835 have no alternative but to allow it to stand in the Bill. However, before we part with the Amendments we should carefully consider their effect. I hope that all hon. Members will accept that our aims are the same and that there is no question about what we are trying to achieve.
There are two quite separate points I should like to dwell on. The first deals with the first of these two Lords Amendments, the one which adds the word "human". We had this morning in The Times an article quoting something written in the New Law Journal, and The Times, with a quotation from the other paper, says:The Bill, now before the Lords, makes it a criminal offence to send out material 'which merely describes or illustrates human sexual techniques'. The journal emphasises that there is nothing in the clause to suggest that the material against which the full rigour of the law is to be applied need be obscene.This is the difficulty which my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) and others have already put their fingers on, that human sexual techniques may indeed not be obscene or offensive in any respect. For instance, a kiss might be defined as a human sexual technique but nobody in his senses would think it obscene. Equally, by excluding the animal kingdom, we may —though none of us would wish it—exclude the sex life of newts. We may exclude some material which is not obscene. One of my hon. Friends has already made the point that it would be perfectly possible to imagine pornographic literature describing animal sexual techniques, and it could be most offensive, particularly to children, if it were done in too lurid or pornographic a fashion. That would not be entirely excluded by acceptance of this Lords Amendment.
§ Mr. Money
My hon. Friend uses the word "pornographic". What causes concern to some hon. Members is that matters which are not per se pornographic could be likely, when sent out unsolicited, to cause offence to some sectors of the community. This was touched on by my hon. Friend the Member for Woking (Mr. Onslow). I hope the Minister will deal with it.
§ Mr. Ridley
The conclusion I was coming to was that, at the end, the question of what is obscene is and always 1836 has been a matter of taste. It is impossible to define in words in the law objectively what is obscene and pornographic and what is not. Therefore, whatever words we were to include in the Clause would be imprecise, because some persons would find the material obscene and others would not. We have not the means of deciding what it is that is obscene and what it is that is not.
§ Mr. Kenneth Lewis
What the Bill seeks, quite properly, to do is to prevent from being sent out material which is not wanted. By bringing in the Director of Public Prosecutions what we are doing now is to make the Director of Public Prosecutions a sort of censor as to what may go to those of the public who have not asked for it. That would be correct, would it not?
§ Mr. Ridley
My hon. Friend has come to the conclusion to which I expected to come in a few minutes. He has anticipated what I was going to say. I should like to bring up one or two other matters before getting to that point to which he has got with his usual quick brilliance.
My hon. and learned Friend the Member for Darwen referred to the meaning of the word "send". Again it is not clear what the meaning of this would be, and I would not wish to express a legal opinion, but I would have thought that even to give a friend something could be construed as "sending", and so the Clause is as wide as can be both as to the meaning of the material and as to the method of its delivery. By Lords Amendment No. 5 and the word "human" we are restricting the matters to those to do with human beings, rather than to matters dealing with animals.
I would, however, confirm that I am advised that it would certainly cover the question of bestiality—as my brief says, activities between humans and animals. I do not quite know what that means, but activities between humans and animals would be covered by the word "human" because, clearly, it would be quite wrong to absolve from the ambit of the Clause leaflets or books which carried details of bestiality.
I should like to suggest one other possible difficulty which the House might like to consider. At earlier parts of the Bill we were very concerned to prevent 1837 perfectly reputable firms from being subject to hoax orders. For instance, in Committee we took great care to look after the rights of perfectly reputable mail order firms which might be subject to hoax orders, collusive hoax orders of a sort which would allow the recipients to claim that they were in possession of goods—which had been ordered through third parties—and which they did not want. It would be possible to imagine somebody asking a firm which produces this sort of material, pornographic or whatever we like to call it, to send literature of this sort to people who have not asked for it. Perhaps they are enemies. Perhaps it is done for a joke. Perhaps it is done just to create mischief. Certain firms which specialise in circulating material of this sort to people who genuinely want it could be put in an extremely difficult position if they received hoax orders asking that such and such a book on sexual techniques be sent to the following address—whereas the address is in fact that of an enemy, or somebody having a practical joke played upon him.
It would be very unfair if the firm concerned in such a case were to be prosecuted and convicted for sending unsolicited material of this sort when the firm was a victim of a hoax order.
§ Mr. Cormack
Surely that is not entirely a conclusive argument, because the supplying firm would have in its archives a copy of the original order and the firm could produce it?
§ Mr. Ridley
That is a possibility, but the point I am coming to is that these matters will fall to be decided by the Director of Public Prosecutions when deciding whether he should institute a prosecution in any particular case; he will decide whether the material is offensive, whether it was sent or not, whether it was solicited, whether it was sent because of a hoax or not. All of these points will be for him to assess before he decides whether or not there should be a public prosecution. Of course, eventually the courts will have to decide.
However, I think the House is in danger of putting on to the Director of Public Prosecutions a moral censorship when it is unable to put into words, has been unable to devise words, to define what it is it wishes to prevent.
§ Mr. Ridley
Technically but of course the Director of Public Prosecutions would have to decide whether the inclusion of that one thing in a book of 800 pages would seem to him sufficiently wrong that he should decide to allow a prosecution. The point which I am making is that the House is placing upon the Director of Public Prosecutions a very heavy responsibility in the exercise of discretion in these matters.
It is entirely right that the second of these Lords Amendments, Amendment No. 6, could be accepted to allow the Director of Public Prosecutions to have in all cases the decision whether a prosecution should be made, but I draw the attention of the House to the fact that the result would be to make him the arbiter of what is obscene or not. This would devolve upon the Director of Public Prosecutions a judgment in a matter which the House has been unable to frame words in this Clause to define, and which is not very much help as to what it is the House is trying to do.
§ Mr. Arthur Davidson
Would the Minister not agree that the matter goes further than that, because the Director is not concerned with obscenity but with what is offensive to the public taste? That is an even more difficult criterion for somebody in his position to judge.
§ Mr. Ridley
The words in the Bill refer only to something whichdescribes or illustrates sexual techniques".The Bill does not mention either obscenity or whether something is offensive.
§ Mr. Money
Surely the matter goes further than my hon. Friend says. It will not be the offensive nature of the material as such, but the liability of the material as such to offend individuals who have not solicited it. Something may be offensive in itself in its own circumstances but at the same time could cause considerable offence. For instance, the sort of letters which are received by hon. Members in this House might well cause different reactions if sent to elderly ladies or to members of the clergy, or nuns in holy orders.
§ Mr. Ridley
That may be right. The provision does not says that what the Director has to have regard to in deciding whether to prosecute is the liability of material to cause offence to certain categories of people. He has to take on himself the responsibility of deciding what are the circumstances in which he would be right to initiate a prosecution. The only point I make is that the House has given him very little guidance.
My hon. and learned Friend the Member for Solihull (Mr. Grieve) questioned whether the Clause would catch the Julian Press circular. As this is the main intention of the Clause, and is the reason the House would like to see this Bill on the Statute Book, it is an important and pertinent question whether we think the Clause will do what it is intended to do. My hon. and learned Friend drew attention to the difficulty of deciding whether the wordsdescribes or illustrates sexual techniquesdid or did not apply to the words in bracketsor advertising material for any such publication.If this description applied only to a book, magazine or leaflet, then the advertising material would not be included in the ambit of the Clause—
§ Mr. Grieve
I do not think that is the point I was submitting to the House. If the wordsdescribes or illustrates sexual techniquesapply only to the book, magazine or leaflet, then advertising material is caught by the Clause. That is only in the event that a court should decide that the wordsdescribes or illustrates sexual techniquesmust apply also to the words in parenthesisadvertising material for any such publication".But if the advertising material did not itself illustrate the techniques, the senders of the advertising material would get off scot-free. I think the Clause will achieve what we seek to do, but there is an element of doubt.
§ Mr. Ridley
My hon. and learned Friend has had two tries at explaining the point and I have had one. I am sure that he, in both his tries, did better than I, but I was certainly seeking to explain the same point.
1840 Since the House has no means of clarifying this matter, since this is an Amendment from the other place, it will have to be decided in the courts. I find it difficult to give a firm opinion as to what the courts will say. The Government's advice as to the exact meaning of the Clause is uncertain. I must advise the House that there is some genuine doubt whether the wording of the Clause is effective against the particular Julian Press leaflet, which is perhaps the stock example which we are discussing. However, we are powerless at this stage to clear up the matter because there is no opportunity to amend the Bill. The only thing we can do is to make it clear and plain that it is the intention of Parliament that these circulars should be included, and then to leave it to the courts to interpret the legislation.
§ Mr. Onslow
Surely there is an intervening stage. It must be made clear to the Director of Public Prosecutions that it is Parliament's intention that a prosecution will result.
§ 12.15 p.m.
§ Mr. Ridley
Yes, but the way we operate in this House is not to make speeches in the hope that the Director of Public Prosecutions will read them and know what we mean—indeed, very often he might be confused if he had to rely on such means of communication. What we do in Parliament is to pass legislation in which the words are precise and clear so that the Director is entirely aware of Parliament's intention.
§ Mr. Cormack
There is a danger that the Minister's caveat will collide with the Attorney-General's fiat. If the English language and the rules of syntax have any meaning, it is abundantly plain that advertising material is included. If it is not, we have good cause for quoting Mr. Bumble who said that the law is an ass. Surely no self-respecting lawyer could read into the Clause anything other than that.
§ Mr. Ridley
I am afraid that the Director, who must be a self-respecting lawyer if ever there was one, is in some doubt whether this would allow him to bring a prosecution against the Julian Press. I can go no further than to tell my hon. Friend what the Director himself thinks and it is for the Director to decide if any case comes before him under the Bill.
§ Mr. Onslow
This is a serious point. If that is the position, my hon. Friend is making a strong case against the Amendment. Unless he can assure me that he sees some advantage from the point of view of public policy in the prosecution of this kind of material, I doubt whether the House should accept this Amendment.
§ Mr. Ridley
The Amendment does not affect the problem. The problem is whether the Clause contains sufficient powers to catch within its ambit these circulars. This would not mean that it would get over the difficulty, because the court would still hold that it did not include the circular.
§ Mr. James Kilfedder (Down, North)
Could we get one of the Law Officers to give a legal opinion on the interpretation of the law and the Amendment? This is a matter of concern to the House. I strongly object to the Julian Press advertising such literature, and I want to see an end put to its distribution.
§ Mr. Ridley
I am telling the House that legal advance has been obtained and my right hon. and learned Friend the Attorney-General has been consulted. As I said on Second Reading, we were always dubious whether the Clause was the right way to achieve the object which the House had in mind. I advised the House at that time to that effect. I am now continuing to advise the House that there is some doubt whether the Clause will achieve what it sets out to achieve. This is a Private Member's Bill, not a Bill drafted by the Government, and the Government have no chance to say how the Bill should be drafted.
The Amendment was put down on Report, when I advised that it was not well drafted. The House decided to proceed with it, so we have been powerless to inform the House as to the consequences of the Clause as drafted. The House is still free to come to a decision on these Amendments, although it is not free at this stage to decide whether or not the Clause should remain in the Bill.
§ Mr. Kenneth Lewis
There seems to be a good deal of confusion on this. The Amendment does not lay the whole onus on the Director of Public Prosecutions, because it says that no prosecution shall be instituted 1842except by, or with the consent of, the Director of Public Prosecutions.The Director of Public Prosecutions is, therefore, much more flexible. If he does not want to exercise censorship, it would be reasonable for him not to oppose a prosecution. He may not necessarily approve of it entirely, but he need not oppose it.
§ Mr. Ridley
That is true, but the Director would have to decide whether to approve a prosecution, which is exactly the same as saying that it is his responsibility whether or not a prosecution will take place. My hon. Friend is splitting a hair. The ultimate decision must be with the courts. If a test case is brought it will be for the courts to interpret what the Clause as drafted means.
The right course would be for the House to accept both Amendments as they probably improve the Clause. We have no alternative but to accept or reject the Amendments; we cannot accept or reject the Clause. We should amend the Clause in the way their Lordships have suggested, and then over a period see what the precise interpretation of the Clause by the Director and by the courts will be. If after that period we have the report of the Committee on Privacy under Mr. Younger, we shall have further information on how best this menace might be tackled, and, if necessary, further provision can be made. I therefore commend the two Amendments to the House. In no way do I wish to quarrel with any hon. Member about the objects of the Clause. I merely believe it to be the duty of the Government to bring into the open the technical difficulties.
§ Mr. Bishop
I recognise that the Director of Public Prosecutions has a job to do. It appears that he is already uncertain about the meaning of the Clause. Because the Director of Public Prosecutions seems to interpret his job in relation to the Obscene Publications Act and the meaning of depravity "and" "obscenity" in such a liberal way, the House may be more restrictive so as to achieve what cannot be achieved by other means. We hope that the Director will pay heed to the strong feeling of the House on these matters.
§ Mr. Ridley
I am not sure that the hon. Gentleman's interjection was not 1843 designed more for the Director of Public Prosecutions than for myself.
§ Mr. Norman Fowler (Nottingham, South)
I started by supporting the Amendments, but as the morning has progressed I have become more doubtful. I am particularly concerned about the point first raised by my hon. and learned Friend the Member for Solihull (Mr. Grieve) on the advertising material and the way in which it can be caught.
I have been approached by constituents who have received the kind of leaflet that has been referred to. Both the major companies concerned in advertising these books have been active in the Nottingham area and their activities have caused great offence. As one of my constituents put it, leaflets advertising so-called advanced sexual techniques may fall into the hands of young people and children. Secondly, some members of the public consider that the leaflets are an invasion of their right of privacy. They do not see why leaflets for which they have not asked, and which are positively unwanted, should be sent to them.
I do not take an alarmist view of the so-called permissive society, but we must distinguish carefully between whom we are setting out to protect and from what we are setting out to protect. First, it is reasonable to protect the young from these leaflets. There are restrictions on the cinema, for example, to protect young people from seeing films which are considered unsuitable. Even the critics of censorship would support this. It is obviously much more difficult to take preventive action in relation to unsolicited goods.
The second class we must protect is the public generally. The public should be protected from material which deliberately sets out to exploit sex. Under a thin veil claiming that they are helping in sex education, these companies are putting out material which is designed to attract certain readers. My hon. Friend the Member for Woking (Mr. Onslow) mentioned the leaflets put out by the Julian Press. The Julian Press is still continuing to send out leaflets. Only this week a constituent wrote to me about the latest leaflet which had been circulated. The undesirable activities of this company continue, despite all the discussion we have had in the House and the action which we hope to take.
§ Mr. James Wellbeloved (Erith and Crayford)
The hon. Gentleman has just said that the Julian Press is continuing to circulate leaflets, but it is far more serious than that. The Julian Press is now starting a second flood of filth in many areas, including my constituency.
§ Mr. Fowler
I do not know the exact extent of the activities of the Julian Press, but, from what has been said this morning, it is clear that the company has no intention of desisting from its policy and seems to have started a new propaganda campaign for its pornography.
§ Mr. Ian MacArthur (Perth and East Perthshire)
I may be able to assist my hon. Friend and put forward to the House a point of interest. A constituent of mine only this week received from the Julian Press a leaflet precisely the same as the original leaflet which caused so much offence when it first appeared a couple of years ago. Clearly a second mailing drive is going on in Scotland as well as in England. Does not my hon. Friend agree that the purpose of the leaflet is clearly demonstrated not so much by its general content as by the the so-called warning in red type appearing on the front cover, which is clearly a titillation of salaciousness?
§ Mr. Fowler
I am grateful to my hon. Friend. I have the leaflet that was sent to my constituent, and I imagine it to be the same as that sent to him. Under the guise of trying to help married couples, the leaflet contains words and implication intended to attract a completely different reader. The words that it uses all lead to the conclusion that they are trying to attract not a serious audience but a certain kind of reader who they hope will buy this kind of book.
I may give an example. They do not say that the material they are putting forward is the most serious attempt in this field to explain, for example, sex education. The kind of words they use are that it is the "most intimate book," "the frankest book," "the most uninhibited book," "the most revealing book," "the most advanced book." They say:The complete frankness of the photographs—each position—every variation—is portrayed in full and intimate detail.…Each photograph is accompanied by a frank commentary.1845 They continue by saying:This book is already a runaway best seller…In other words, their purpose is quite clearly a commercial exploitation of sex perverts.
I give two other illustrations from what is only a short letter. The leaflet itself continues:a special good will offer…It includes a guarantee, and the person concerned who is fool enough to send his money for this book signs something which says:I understand that I may be refunded in full if I return the book within seven days.I would not put very much weight upon that guarantee.
One would note also the hypocrisy of this firm, which asks the person who responds to the advertisement to sign a declaration that he or she is over 21. It would be extremely interesting to know how on earth they checked that that was the case. Of course, it is absolute nonsense. They are not in the least concerned whether the person is over 21 or under 21.
As has been pointed out, one of the disturbing points is the warning which is given, a warning on the front of the letter. I do not want to encroach upon warning letters, which arise in a later debate. But the warning in this case acts not as a warning but as an incentive to the kind of people who want to buy this kind of book. It is a matter of enormous concern that the Bill should properly catch this kind of advertisement.
§ Mr. MacArthur
I am a little concerned that this debate, perhaps may increase the market for this publication by calling wide attention to it. Would it not be as well to point out that the book itself will be remarkably disappointing to those who respond to the leaflet because of the titillation which it provides of salaciousness. It is the leaflet which is offensive, much more than the publication itself.
§ Mr. Fowler
My hon. Friend has the advantage of me if he has seen the book to which the leaflet refers. The simple pointing out of the hypocrisy of the advertising will not cause an increase in sales of the book. There is a necessity for 1846 the Bill to cover that kind of advertising material. That is where my concern lies.
§ Mr. Cormack
The book is in the House of Commons Library. My hon. Friend the Member for Ipswich (Mr. Money) has been to collect it. I referred to it on Second Reading. I should like my hon. Friend to look at it afterwards. My hon. Friend the Member for Perth has just said that it is very much less exciting than the circular would have us suppose. The pictures resemble nothing more than a rather innocuous all-in wrestling. They are certainly athletic.
§ Mr. Fowler
I am grateful for that guidance upon the contents of the book. When the Minister has finished reading it, perhaps I could glance at it as well.
But this is a well-known advertising technique. These days one sees advertisements for theatre shows such as "Oh Calcutta", which are far more likely to bore rather than to corrupt. I do not want to make light of this. It is not a matter which should be laughed off but one of deep concern.
I am concerned by what the Minister said about the advertisement. He said that he is not clear about the way these advertisements, to which we all object, will be covered. The other main organisation in this field is called the Running Man Press. Again, leaflets from this firm have been sent to my constituent. It is easy to make fun of the books which are catalogued in the leaflet sent to my constituent. It is easy enough to come to the conclusion that anyone who is fool enough to pay £4.50 for a book on the rationale of the dirty joke deserves what he gets. But there are rather more serious and sinister books, and one of these advertisements is for what they choose to call the "contemporary equivalent of de Sade". Several studies of actual murder cases in this country in recent years have suggested that it is exactly this kind of book that can have a very serious effect in warping further an already unbalanced mind.
§ Mr. Fowler
My hon. Friend intervenes to mention the moors murder. Indeed there were several studies on that murder which came to that conclusion. To those who say that these books can have no effect, I reply that if they read 1847 one of these studies which have been carried out, there can be no doubt whatever about the very real and harmful effect such books can have.
All this leads me to conclude and to hope that the advertising material, both from the Julian Press and from the Running Man organisation, will be covered by the Clause.
§ Mr. Money
Unfortunately, the Bill, even with the Amendments, can, of its nature, cover only offences within the jurisdiction. Both my hon. Friends have already referred as did the hon. Gentleman, to the recrudescence of advertisements now, as it were, coming to its second cycle. There is always the risk—which the House may have to look at later—that bundles of this kind of filth may be sent from outside the jurisdiction, or even from Northern Ireland, which is explicitly omitted from the Bill. It may be that Parliament will have to look at this matter.
§ Mr. Fowler
My hon. Friend has raised a very good point. It is not unknown for mailing lists aimed at this country to be organised from other parts of Europe or even the United States.
§ Mr. MacArthur
I think that my hon. Friend the Member for Ipswich (Mr. Money) has touched on a most important point, but again we do not want to suggest ways in which the intentions of Parliament might be circumvented. Does not my hon. Friend the Member for Nottingham, South (Mr. Fowler) think that, if salacious literature of this kind were sent from Northern Ireland, for example, as soon as it came into the mailing system it would constitute an offence against the Post Office Act, failing which it would contravene Post Office regulations under which the sending of filth is itself an offence? I believe that the Post Office has very wide jurisdiction in determining what is and what is not an embarrassing package.
§ Mr. Fowler
I do not want to deal with that point on behalf of my hon. Friend the Member for Ipswich, (Mr. Money), but I appreciate what my hon. Friend the Member for Perth and East Perthshire (Mr. MacArthur) says. I think that it was right of my hon. Friend the Member for Ipswich to raise this point, 1848 because it is at this stage that we may be able to do something about it.
§ Mr. Ridley
My hon. Friends may be interested to know that a prosecution has taken place under the Post Office Act, 1953, which makes it an offence to send obscene or indecent materials through the mail. A conviction was secured against a firm for doing exactly that to which my hon. Friend the Member for Ipswich (Mr. Money) referred. I believe that existing powers are adequate in that respect. It may be that already the powers are adequate to deal with a large range of these problems, though of course, not all of them.
§ Mr. Fowler
I am grateful to my hon. Friend for that assurance. I hope that it will be noted.
My object in raising these issues in this debate has been to show my concern, which has been increased rather than diminished as the debate has progressed, to see that advertising leaflets which themselves may not describe or illustrate sexual techniques but which advertise books which do just that will be caught under the Bill.
I support that part of the Amendment which affects the Director of Public Prosecutions. To my mind, it brings a uniformity and consistency into the enforcement of the law, and in that respect it is extremely valuable.
§ Mr. Bishop
If we pass Amendment No. 6, which provides that proceedings shall be brought only with the consent of or by the Director of Public Prosecutions, although that would make for uniformity throughout the country, nevertheless it might hamper individual magistrates. I have seen some of the material which has been sent to the Director of Public Prosecutions on which no action has been taken. As a magistrate, I have spent time with the Vice Squad looking at some of the stuff, and it is amazing how much is taken for granted by the Director of Public Prosecutions. His officials appear to be quite hardened to it.
If we pass this Amendment, a great many benches throughout the country where magistrates and local people have strong feelings about these matters will be powerless to take action. The present law is such that local courts may institute 1849 proceedings regardless of the wishes of the Director of Public Prosecutions, although I do not think that that is widely known.
§ Mr. Fowler
I suggest that that is more a criticism of the law as it now stands than of the actions of the Director of Public Prosecutions, who interprets the law and decides on the likelihood of a prosecution succeeding. I think that any provision which leads to consistency in our prosecuting policy will be a positive advantage. I do not think that it will result in frivolous and unnecessary prosecutions. However, I accept that the hon. Member for Newark (Mr. Bishop) has a serious point, and I hope that my hon. Friend the Under-Secretary and my hon. Friend the Member for Beckenham (Mr. Goodhart) will address themselves to it if either of them intervenes again.
I am persuaded that this Clause will result in the undoubted villains in pornography, its exploiters, being tackled and at last brought to book successfully. It is an extremely useful step for this House to take.
§ 12.45 p.m.
§ Mr. Cormack
I shall make my intervention reasonably brief, because this matter has been dealt with at great length.
On Second Reading, I think that I was one of the first to talk at some length about the problem to which we are addressing ourselves this morning. It is a matter which concerns hon. Members on both sides. There is an Early Day Motion signed by over a hundred hon. Members which is illustrative of the general concern which is felt about the distribution of salacious material.
The nub of the problem is that significant word in the Title of the Bill, the word "unsolicited". We are not here to debate taste or to set ourselves up as moral censors. We are not trying to say what is good and what is bad, or what a man should read, see and do. We are here earnestly intent on preventing the distribution of material which is not required and which causes revulsion 2nd repulsion when it is received.
It does not matter what a leaflet says or what its pictures show. It may be a photograph of a naked couple, which is 1850 by no means objectionable to many people. But if such a leaflet drops through the letterbox of a recently widowed lady or an aged clergyman, it causes untold suffering and great offence. Such incidents have occurred in my constituency, and they must be stopped. This Clause goes a long way towards tackling the problem.
I was concerned by what my hon. Friend the Under-Secretary said about the bit in parentheses. However, I do not feel that anyone who has any knowledge of the English language or syntax could possibly think that advertising literature of the sort referred to by my hon. Friend the Member for Nottingham, South (Mr. Fowler) is not included.
I want to make a brief reference to the leaflet circulated by Julian Press. What has not been pointed out is that this institution seems to change its address with some regularity.
When I last spoke on the subject this circular certainly had a different address, an address the same as that of the Earldene Press, another purveyor of questionable material. These things are flooding through the doors of innocent people all over the country and causing offence. This must be stopped and the Clause goes a long way to tackling that problem. My hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) made a witty intervention about the dangers inherent in passing an Amendment containing the word "human". We must all be alive to the possibilities of new demonologies descending on the people of Great Britain to circumvent this regulation. It might be said that the price of cleanliness, like the price of liberty, is eternal vigilance.
I turn now to the second Amendment. I was convinced by the arguments of my hon. and learned Friend the Member for Solihull (Mr. Grieve). Then the Minister spoke and we had an intervention from the hon. Member for Newark (Mr. Bishop) and I began to wonder whether we would be serving the interests of the country and fulfilling the intentions of the House in passing this Amendment. I want to reserve my position here. It gives enormous discretion to the Director of Public Prosecutions and if the sort of caveat the Minister entered really does have substance then I wonder whether it 1851 might not be better to reject the Amendment thus leaving it to ordinary citizens to bring prosecutions and to test this matter in the courts.
That way we could be sure that it would be tested in the courts. I know that there are several hon. Members on this side of the House, my hon. Friend the Member for Woking (Mr. Onslow) and my hon. Friend the Member for Nottingham, South who, like me, have come round to this way of thinking during the debate.
§ Mr. Onslow
The House is in a slight difficulty in obtaining an expert legal opinion on this matter at the moment. No doubt the Minister will return soon. I wonder whether my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) could help at this point about the Director of Public Prosecutions. If the Amendment No. 6 is embodied in the Bill will there be any way in which members of the public can launch prosecutions? Apparently prosecutions can be brought by the courts, as the hon. Member for Newark (Mr. Bishop) appeared to suggest. More important, if the Amendment is rejected what effect does that have on the progress of the Bill? Will it in any way prevent the Bill reaching the Statute Book? If it is right, as the Minister has said, that there is some possibility of legislation to implement the report of the Committee on Privacy that might be an opportune moment to consider whether the law should be amended in the way in which this Amendment seeks to amend it.
§ Mr. Cormack
I should be only too happy to give way to my right hon. and learned Friend if he wishes to intervene at this point. My understanding is that we could retain the Amendment without in any way preventing the passing of the Bill into law. I would be grateful if my right hon. and learned Friend could confirm that. My understanding of the other point is that no member of the public could institute a prosecution because it is up to the D.P.P. to decide, in the last resort, whether that should be sanctioned.
§ Sir Derek Walker-Smith (Hertfordshire)
The answer to the first query raised by my hon. Friend the Member for Woking (Mr. Onslow) is clear on the 1852 face of it, because the language of the Amendment, following the normal language in all statutory provisions, is:… by, or with the consent of.…If a private citizen wants there to be a prosecution, other than by the Director of Public Prosecutions, he must ask the Director for his consent thereto.
On the second point about the effect of the rejection of a Lords Amendment upon the passage of a Bill, this raises an interesting constitutional point as to what happens if the two Houses are in disagreement. I remember many years ago having an interesting conversation with Lord Simon upon this point. He told me that in our procedure there is nothing definitive to resolve a final conflict in the event of a disagreement between one House and the other. It shuttles up and down until that point is reached. It must follow from that that to reject a Lords Amendment does not make it impossible to put a Measure on to the Statute Book but in the case of a Private Member's Bill, where time is limited, it must at least have an imperilling effect.
§ Mr. Cormack
I am sure that the whole House is grateful for the wise intervention of my right hon. and learned Friend and his implied advice. I said that I reserved my position but I will not now press this matter to a Division because we all have a tremendous admiration for the hard work put in by my hon. Friend the Member for Beckenham (Mr. Goodhart) and the hon. Member for Accrington (Mr. Arthur Davidson) who I am glad to see sitting on the Opposition Front Bench—a rightful place for him. We are all so conscious of the work that has been done that I am sure we would not wish to delay this vitally important legislation.
So we will let that go, but let it go with this warning to the country and to those who will have responsibility for prosecutions—and I hope there will be test cases soon: that it is the manifest intention of the Parliament of the United Kingdom that people who purvey this pernicious material, thrusting it upon unsuspecting people, should be prosecuted and punished. That is the manifest intention of the House. The key word is "unsolicited". This is the Unsolicited Goods and Services Bill. It now 1853 includes circulars and literature. Let no one be in any doubt as to what is the intention of hon. Members.
§ 1.0 p.m.
§ Mr. Arthur Davidson
The hon. Member for Cannock (Mr. Cormack) was kind enough to refer to me—I will not comment on the little innuendo within that reference. When I originally introduced the Inertia Selling Bill, which was a limited but useful Measure of consumer protection, I never in my wildest dreams thought that some time later we would be debating a similar Measure and holding a mini-debate on the permissive society and its ramifications. I suppose that it is a tribute of some sort to the ingenuity of hon. Members that a Clause of this sort has been inserted in such a Measure which is of a basically different nature.
Perhaps therein lies the reason for the difficulties in which the House now finds itself. This is not really the ideal Bill for such a Clause. Everyone agrees that the practice of using the private letterbox and the private mailing list as a sales technique for sending unordered material, which by its nature is bound to give offence to some people, is reprehensible. It is a gross invasion of privacy. The House feels that something should be done about it, but it requires a carefully thought out measure of its own.
The House would be deluding itself if it thought that the Clause, which has many imperfections, will do more than to act in a very limited way. I agree with the hon. Member for Cannock that we should not, in this Bill at any rate, be setting moral standards. Unfortunately, whether we like it or not, this involves a judgment of public taste. The poor Director of Public Prosecutions will have to weigh up whether to launch a prosecution on legal grounds, but he would be very insensitive if he did not do so against some judgment of what is public taste. It is almost impossible for anyone to make a proper legalistic judgment against that background.
What one person finds offensive, another does not. Some people regard themselves as very broad-minded, while others are happy to say that they are narrow-minded and find all sorts of things offensive. Like other hon. Members, I 1854 have received many letters from constituents objecting to the circular which has been vividly read out, but I have also received a letter from a constituent asking me to supply the name and address of the Julian Press, because he wanted to obtain one of the booklets, and he seemed most offended that he had not received one of the leaflets. That shows that we cannot always account for everyone's taste. There is always an odd man out.
In our previous debate I said that I do not think that this is a very good Clause, and I stick to that. It is vague, and it should not have been inserted in the Bill. But it has been inserted, and the Amendments make it a better Clause than it was. It is right that the Director of Public Prosecutions should have the ultimate say on whether a prosecution should be launched.
One hon. Member mentioned the divergence of views among magistrates when hearing cases involving obscenity and pornography. This divergence is not surprising, because they are human beings, and a microcosm of the public as a whole, which also has a very wide divergence of view on what is essentially a matter of personal taste.
All in all, reluctant as I am to think that this is an ideal Clause, I think that the Amendments make it better, and I urge the House to accept them.
§ Mr. Kenneth Clarke (Rushcliffe)
I warmly welcome the Clause, but I do so with more enthusiasm because of the Amendments proposed in another place, particularly Amendment No. 6, which introduces the need for the consent of the Director of Public Prosecutions before prosecutions can be initiated under the Clause.
I agree with the hon. Member for Accrington (Mr. Arthur Davidson) that a very limited number of cases will be affected by this part of the Bill. To that extent it is quite a small change in the law, but it is quite a drastic change in principle, and it introduces a wholly new approach to this sort of problem. So far as I am aware, it has never been attempted in any other legislation dealing with this matter.
This involves some dangers, and because of these and the novelty of what is being done in principle, the position of the Director of Public Prosecutions 1855 must be secured. The big difference between the Clause and any other legislation in this field is that it is, as far as I am aware, the only legislation which makes no attempt to include any definition of obscenity, offensiveness, a tendency to corrupt and deprave, or anything like that. What is defined in the Bill is a particular subject matter which it is admitted on all sides can be of scientific or medical interest, or not be offensive if it is treated in a particular way. But that subject matter, however it is treated, in a prurient manner or otherwise, is proscribed by the Bill if it is distributed in a particular way. On the face of it, that is a startling new concept in principle, although it affects the activities of only one or two people distributing one or two leaflets, though on a considerable and regrettable scale.
There are dangers which I think can be overcome. The principle is interesting, and might well deserve examination when the whole question of legislation on pornography, which at present is quite unsatisfactory, is considered. It is a principle that the House can defend, but where the intervention of the Director of Public Prosecutions is needed to make sure that this first step is not abused.
Before it allows the Measure to go on, the House must defend itself against an attack in the New Law Journal, an authoritative journal which has attacked this part of the Bill in the strongest terms. The article described the Clause as highly objectionable in legal terms. It said that it went further than anything else in the Bill, because it made it a criminal offence merely to send such unsolicited material, whereas the Bill in general was aimed against demands for money and other harassment after unsolicited material was sent. The opinion of the learned writer of the article was that the Clause confused liberty and licentiousness and was not to the nation's advantage. He pointed out that:… there is absolutely nothing in the clause that suggests that the material against which the full rigour of the law is to be applied need be obscene.He said that even distributors of perfectly reputable material were put at risk of of severe penalties in an unprecedented way.
The writer added that it was said that the Clause was necessary to protect those 1856 who were offended by receiving unsolicited sexual material, and commented:Some of it is undoubtedly of a kind which most people would reasonably regard as objectionable. But the clause goes far beyond what is acceptable in criminal legislation, for everything which people even reasonably resent cannot be attacked with criminal sanctions if the criminal law is to be kept in its proper sphere.That is a serious attack which is worthy of a reply in the House. With every respect to the editor of that journal and the writer of the articles, the Clause can be defended. I think that the writer has confused the field into which the Clause is going. He objects to the fact that the material specified in it is a particular subject matter, regardless of its obscenity or otherwise, and suggests that the House should not intervene to attack subject matter which may no be obscene, where the House is not even attempting to define obscenity and the objectionableness of the material.
We have imperfectly and inaccurately tried to apply a test of obscenity in the law over recent years in relation to pornography which has not worked to the satisfaction of most members of the community, whether they be permissive or anti-permissive. But a test of obscenity is necessary, I submit, in a law which deals with one particular aspect—and that is where obscene publications are being distributed privately to unwilling recipients. In the case of films, for example, it should only be illegal to show them to people who want to see them and go out of their way to see them if there is something obscene, objectionable and contrary to the public interest in the subject matter. Any attempt to reform the law in that aspect will involve an attempt to get a better definition of what it is right to proscribe by law and what it is right to classify as obscene and contrary to the public interest if it is distributed even to people eager and willing to receive it.
This Bill, however, deals with wholly different circumstances. It does not make the subject matter itself illegal. It makes it illegal to distribute material on this subject matter to people who have not solicited or requested it. The Clause is more akin to what I hope we shall develop in future—a law of privacy—than to the law of pornography or indecency. When material is forced upon people or sent to their homes without request, and when 1857 lurid advertising material accompanies it, it is right for Parliament to intervene and say that a private citizen should be protected against having material offensive to him sent to him unsolicited and unexpected. It is, therefore, right to define such subject matter very narrowly, as we are doing.
The definition in the Bill is that of human sexual techniques, which is a subject likely to be embarrassing to an admittedly small number of people, although it is a significant and worthwhile minority and is worth respecting. We say, therefore, that it is an offence, not to publish it, but to distribute it in this way, sending it to people who never wanted it, have no interest in it and can indeed be most unsuitable recipients.
That approach is highly commendable. There is another protection which reassures me and, I hope, the House. We accept that there can be non-pornographic books dealing in part or in whole with this subject matter, but I cannot conceive of any circumstances where a person producing such material for a serious scientific purpose would set about distributing it in this way. Anyone who is producing it for a serious medical, scientific or psychiatric purpose is not going to distribute it by post or send out hand bills in this way.
§ Mr. Skeet
My hon. Friend has talked about people being pressed to take this material—perhaps some with a morbid curiosity. Has he also considered that vast danger to the rising generation of school girls and school boys in seeing this sort of thing? Should we not take action to ensure that such material does not get into their hands from organisations like the Julian Press?
§ Mr. Clarke
I am grateful to my hon. Friend for that intervention, I am sure that the serious medical and scientific producers of such literature would agree that it could be harmful in the hands of the wrong people, including the young and, indeed, certain types of patient who might have the wrong sort of interest and whose very last need is for material of this kind. We are justified, therefore, in saying that we are entitled to prescribe this narrow subject matter and to say that any serious scientific producer will not want to distribute in this way. The very 1858 choice of this manner of distribution belies any claim a publisher may make that he has a serious and scientific or medical intention. A distributor who advertises in this way is prima facie the sort of person interested in titillating public interest and exploiting the wrong kind of public interest in sexual material.
The Julian Press should be clear that the lobby for this provision is not part of the most violent argument about obscenity. Even the Julian Press need well not be unlawful if it advertised at bookstalls. There is nothing wrong in selling such material, as the law stands, at a "dirty book" shop in Charing Cross Road, and some of my hon. Friends want to change the law. But all we are saying at the moment is that we want to protect our enraged constituents, of whom there are a great number, and that it is a matter of common sense that such material does indeed belong to a dirty book shop in the Charing Cross Road and must not be sent unsolicited through the post to our constituents.
Having said that, I find the narrow choice of the subject matter somewhat surprising and perhaps an indication that the House does not quite know where this principle is going to take us. The only books which are really adequately covered by the Clause, as amended by Amendment No. 5, are what might be called those dealing with the practical mechanics in human sexual techniques. There are other lines of potential pornographic interest which lie far outside the Clause. One of the things which will impose great limitations on the use of the Clause is that the Director of Public Prosecutions, when he wades through his increased reading matter of potentially pornographic material, will not only have to consider whether it is offensive or pornographic and justifies public steps, but whether it is pornographic in such a way that it comes within this peculiarly narrow definition. He now has to decide whether the material illustrates human sexual techniques. That is going to be difficult to decide even when applied to some grossly pornographic material.
Given the limitation which the Bill is likely to have on the number of cases brought, I want to turn to the potentialities of this principle. I think that we are mostly all agreed in our approach 1859 to the subject of obscene material, for it is a matter on which we are all under great pressure because neither side of the argument is in favour of the present law. My hon. Friend is to be congratulated on bringing forward the possibility of distinguishing between what is shown to people who want to see it, and which is only illegal if it is obscene, objectionable and contrary to some public interest, and what is widely available on display or is distributed to unwilling recipients or shown to unwilling audiences. I think that it is a diplay of this material to people who have no interest in it and do not want it which causes such wide concern.
I shall not stray out of order in discussing the possibility of this approach to film posters and that kind of thing, where what is shown is not strictly obscene from the public point of view if it is only seen on the walls of private flats by people who have that kind of interest, but is objectionable because it offends the feelings of people walking by in a public place and who do not want to see other people's pornography advertised in that way. The principle is relevant to the potentialities of this approach in seeking to enlighten the author of the article I have quoted in showing him that this approach is perfectly reconcilable with the criminal law and is a perfectly acceptable approach in relation to this particular subject matter.
A question which has been canvassed and which has caused some little difficulty with Clause 4 is whether the Julian Press advertising material is in fact covered by the Clause as we have now drafted it. This rather intriguing pair of brackets around the words,or advertising material for any such publicationgives rise to some difficulty.
My own modest view is entirely in accord with that of my hon. and learned Friend the Member for Solihull (Mr. Grieve)—that the fears, which have been expressed on both sides of the House and which had led to the fears outside, that the Director of Public Prosecutions might not be the right person to exercise this power and that he might not construe the Clause in the right way are ill-founded. My view is that a close examination of the Clause shows that it would clearly catch advertising material 1860 for proscribed matter, even if the advertising material itself did not contain illustrations of human sexual techniques, which is the point being considered.
Clearly, as the Clause now stands, if there were no brackets around those words, advertising material would be covered only if the advertising material itself described or illustrated sexual techniques. The courts, in their way of trusting Parliament, would seek to give some meaning to the insertion of the brackets, which are clearly intended to modify the meaning in some respect, and I believe that a meaning can be given to them, because they clearly exclude from the application of the qualifying phrase,describes or illustrates sexual techniquesthe words in the brackets. What is proscribed isany book, magazine or leaflet … which describes or illustrates sexual techniquesandadvertising material for any such publicationthat is,any book, magazine or leaflet … which describes or illustrates sexual techniquesI believe that the words in brackets, the subordinate Clause, have not been put in the correct place in the Clause, or in the best position to make that meaning clear, but I am nevertheless encouraged by the fact that my hon. and learned Friend the Member for Solihull gives me authoritative support for the view which I am now propounding, which is that the case we have in mind is covered and that the fears of some of my hon. Friends are unfounded.
I hope that the Minister will take the matter further with the D.P.P. in some way and, if it is right that the D.P.P. has some reservations, and I am sure that it is, for my hon. Friend the Member for Circencester and Tewkesbury (Mr. Ridley) has said so, I hope that the D.P.P. will have his doubts resolved in the not too distant future and will not hold back from attacking the advertising material of the Julian Press, which, above all else, is the advertising material, emanating from an extremely disreputable source, which has brought the whole matter before the House and which is uppermost in the minds of my hon. Friends who seek to deal with this matter.
§ Mr. Clarke
If I misled the House into thinking that the Minister could advise the D.P.P., I was entirely in error. What I hope that the Minister will do is to urge the D.P.P. carefully to consider this matter before coming to a final view, and I am optimistic in the belief that the D.P.P. will share the opinion of my hon. and learned Friend and will decide that he can take steps of the sort described.
I believe that this principle is supportable, but it is essential for the D.P.P. to come to this difficult decision. If members of the public without recourse to the D.P.P.'s office are to make test cases under the Clause—and it has happened in other branches of this law—those who rush to bring the first prosecutions may, unfortunately, be those who misunderstand the purpose and who have their own very narrow and limited view of what in fact Parliament has been trying to proscribe.
As we have found all too often in these matters, ill-conceived private prosecutions more than anything else have brought the whole law into disrepute and made the prospect of prosecuting in any respect much more difficult. Some ill-conceived public prosecutions have had precisely the same effect under the present law. If the public at large, and particularly pressure groups within the general public, are to have unrestrained access to the courts to bring prosecutions under this part of the Bill, that could lead to its being brought rapidly into abuse and a valuable and interesting principle could be brought into disrepute.
Therefore, I welcome the attempt to develop a law on privacy rather than the mounting of an attack at this stage on pornography and obscenity. I welcome this as a first step towards a law of privacy. We have to watch with great care how it is used and what the effect, if any, is. I therefore think that we need the D.P.P. to sanction action under this provsion so that we may have the right control in practice and so that careful use may be made of it in the courts.
§ Mr. James Wellbeloved (Erith and Crayford)
I congratulate the hon. Member for Rushcliffe (Mr. Kenneth Clarke) on the moderate and clear manner in which he deployed his case. This is 1862 a subject of great concern to all of us, and it is very much open to exploitation and sensational parliamentary speeches under the privilege of the House.
In his brief appearance at the Box in the debate, my hon. Friend the Member for Accrington (Mr. Arthur Davidson) said that he sponsored the original Unsolicited Goods Bill. I was a co-sponsor with him. I believe that that original Bill has been greatly strengthened by Clause 4 in this Bill. It is a great improvement, because we are now to try to deal not only with the unsolicited goods which have caused so much distress but with this new unsolicited advertising material for books which many people regard as offensive.
I do not entirely share the view of the hon. Member for Rushcliffe about the power of the Director of Public Prosecutions. It will be only after substantial public participation in prosecutions over a considerable period, prosecutions brought by individuals, that we shall reach the stage at which the Government of the day are forced to introduce legislation to deal with the matter. It is not a party political issue that we are discussing. I condemn both my own and previous Governments as well as the present Government for not bringing forward legislation to deal with an undoubted social evil.
If all Governments have shown this unwillingness to act, it is only by a Private Members Bill such as this, followed by prosecutions by individuals, that the situation will become so scandalous that the Government will step in. It would therefore not be advisable to dilute the good intentions of Parliament by accepting the Amendment.
Other hon. Members have referred to the Julian Press material and to other publications which are now going through constituents' letter boxes. Many of my constituents are being subjected to the second flood of this offensive material. About 18 months or two years ago we had the first deliveries of the leaflets, and I am now beginning to get further letters and telephone calls complaining of the second instalment.
Something must be done. The public are becoming so outraged that there is a danger that, because of the activities of the 1863 Julian Press and other firms of that nature, Parliament will be forced to take action which would be contrary to the public good. We are in danger of being forced along a path of anti-permissiveness, which we do not wish to follow. Unless we deal with this commercial abuse we shall be forced along the road towards censorship, a path which we do not want to travel.
There are people who wish to receive this sort of literature, and to study it. Perhaps they have a need to study it. It is no part of our job here to be so restrictive as to deny to those who feel they need this sort of literature opportunities to acquire it. At the same time, as Members of Parliament we have an absolute responsibility to ensure that ordinary decent families do not have imposed upon them via their letter boxes the sort of stuff now being sent out, which they do not want, which is offensive to them, and which they consider to be damaging to their children when their children look at it.
We are in the dilemma whether to leave the Clause as it is or to amend it. Because I believe that at this stage in the development of the war against this flood of filth we need a certain amount of flexibility, I favour rejecting the Lords Amendment relating to the Director of Public Prosecutions. I accept that there is the danger of undesirable prosecutions, but undesirable prosecutions would be better than no prosecutions at all, which is virtually the present situation. I believe that the Clause as drafted will catch the Julian Press.
Had it not been for the Minister's speech I should not have been quite so concerned about the introduction of the consent of the Director of Public Prosecutions, but the Minister has made it quite clear that in his consultations the Director was very doubtful whether the Clause would catch the Julian Press. That is tantamount to the hon. Gentleman telling us that he is reasonably satisfied that the Director is unlikely to institute prosecutions. Such a situation is entirely unsatisfactory. Had not the Minister given that impression we might the more easily have accepted the Lords Amendment, but in the face of the Minister's statement, and in view of the clear intention of the House that Julian Press adver- 1864 tising material and other such objectionable advertising circulars should be caught, we can hardly accept it.
I do not think that the danger of private prosecutions is too great. The Clause as drafted gives to chief constables a degree of flexibility to institute prosecutions within their own areas. Such prosecutions will be properly presented—they will not be crank prosecutions—and they will, in turn, lead to the sort of movement we must generate if we are to bring the Government to accept their responsibilities and to bring forward legislation.
I hope that the House will stand firm in its clearly declared intention to catch this sort of publication and so will resist the Lords Amendment. We shall thereby make a contribution to halting this flood of pornography and filth which is causing so much concern to every decent citizen, while avoiding the road to harsh censorship and policies which might be detrimental to the public good.
§ Sir D. Walker-Smith
The hon. Member for Erith and Crayford (Mr. Well-beloved) described his intervention as being very brief: mine will be briefer still, not least because of the further very important business awaiting the House this afternoon.
Clause 4 is a good Clause. It is much better and much less controversial than the Clause 4 of which we sometimes hear in a different context. Unlike the hon. Gentleman, I feel that the Clause will be strengthened by the Lords Amendment, for the reasons I gave in an intervention when asked for my view by one of my hon. Friends.
On the question whether the words "in relation to advertising material" are apt, I respectfully concur in the opinion of my hon. and learned Friend the Member for Solihull (Mr Grieve) and my hon. Friend the Member for Rushcliffe (Mr. Kenneth Clarke). It is a canon of construction of a Statute that one must assume that the Legislature intends to have some meaning ascribed to every single word. That statement may come as a matter of surprise to some hon. Members who are engaged in the workshop of the House of Commons rather than in the construction of Statutes in the Courts, but it is so, and while I 1865 do not know that it is specifically stated, for example, in Maxwell on the Interpretation of Statutes that the same doctrine applies to brackets, I have no doubt that in principle it does. It must, therefore, be right that advertising material is caught by the language of the Clause even if it does not itself describe or illustrate sexual techniques. That is the meaning which I understand the framers of the Bill wish the language to have, and which in common sense it should have.
Two criticisms have been advanced against the Clause—first, that it is vague and, second, that it creates an offence without the necessary ingredient of obscenity. I must say that I find nothing vague at all in the language of the Clause. Its terms are commendably clear and precise—partly because it does not make obscenity an necessary ingredient of the offence. There is no doubt that the statutory test of obscenity gives rise to difficulty in its application, but that does not apply to this Clause because what has to be proved are clearly factual matters, not based on opinion. So I submit that the Clause is very clear.
As to the criticism that an offence is created without the ingredient of obscenity, that seems to me to be wholly proper in the limited context of what the Clause seeks to do, in that the gravamen of the offence is the embarrassment and annoyance caused to the innocent recipient who has not solicited the material. As that is the gravamen of the offence, there seems to be no logical necessity to have to incorporate the ingredient of obscenity in the commission of the offence.
Like other hon. Members, I speak as the recipient of a good deal of complaint from constituents about these matters, in the context of which I have tabled Parliamentary Questions, relating, among other things, to the observance or breach of the Companies and Registration of Business Names Acts by advertisers of this sort of matter. Surely our constituents are entitled to protection.
My hon. Friend the Member for Derbyshire, South-East (Mr. Rost) this morning received a letter of complaint, enclosing one of these pamphlets, from an elderly lady in his constituency who said: 1866Surely something could be done to stop these people sending unwanted literature through our letter boxes. Perhaps as an M.P. you may be able to do something about it.My hon. Friend will be able to write back to her and say that he and the House are doing something about it.
§ Mr. Peter Rost (Derbyshire, South-East)
I passed the letter, which I opened a few minutes ago, to my right hon. and learned Friend because I understood that he was likely to catch your eye, Mr. Deputy Speaker. I mentioned to him that it was the second such letter which I had received in two days from constituents. The first was from a 77-year-old widow who was extremely distressed at receiving this sort of literature. I thought that my right hon. and learned Friend would like to know that.
§ Sir D. Walker-Smith
I am much obliged. It is a topical and graphic illustration of the sort of offence which many hon. Members have found has been given to their constituents.
We are not concerned with wider issues of possible amendment or clarification of the law of obscenity, but this provision should do much to protect people from the unsolicited delivery of this sort of material and from the embarrassment and distress it causes.
I congratulate my hon. Friend the Member for Beckenham (Mr. Goodhart) and the hon. Member for Accrington (Mr. Arthur Davidson) on their initiative, and hope that very soon the Bill will become law.
§ Mr. Kenneth Lewis
Does my right hon. and learned Friend realise that the Bill will be of great assistance when we go into the Common Market because it will prevent certain material from coming from Europe? It is interesting that he should support a Bill which is of assistance in connection with the Common Market.
§ 1.45 p.m.
§ Mr. Kilfedder
I am appalled at the remarks of my hon. Friend the Member for Rutland and Stamford (Mr. Kenneth Lewis) concerning our entry to the Common Market. I wish to speak for only a moment or two on the merits of the Bill and the Amendments, because I am sure that the House wants to debate the other important matter on the Order 1867 Paper on which I wish to express some opinions.
To adopt the words of my hon. Friend the Member for Rushcliffe (Mr. Kenneth Clarke), I welcome the Bill as a first step towards a law of privacy. That is what is needed. Why should any person, in the privacy of his home, be offended and embarrassed and even distressed by the indiscriminate distribution of sordid, lurid literature such as that which is sent out by the Julian Press? That firm has been mentioned frequently today. During the debate on the Inertia Selling Bill an hon. Member said that it had gone "bust". Unfortunately, it does not seem to have gone into liquidation because hon. Members have mentioned that they have received a second wave of literature from it.
It would be an exaggeration to say that my constituents have been inundated with this sort of literature, but I have received about 12 letters from constituents enclosing Julian Press advertising matter. They have been deeply offended by it. Not only adults but young people have received it. Although I am against rigid censorship, it is wrong that people should be plagued in this dreadful way.
I have looked at the literature from the Julian Press and I agree that it is printed in a way which catches the eye. It may not be obscene per se, but it is deliberate exploitation of what the Lord Chancellor, in another place, called "sexual curiosity for profit".
My hon. Friend the Member for Ipswich (Mr. Money) said that the publication of offensive literature may be stopped in this country but it could be sent from places outside the jurisdiction of the Bill. He suggested—and I was shocked at the suggestion—that salacious material would come from Northern Ireland. I appreciate that the Bill does not apply to Northern Ireland, but it is right that an Ulster Member should comment on it and welcome it. I do not accept what my hon. Friend the Member for Ipswich says because Ulster does not lend itself to these extreme examples of the permissive society. However, I trust that when this admirable Bill becomes law the Parliament of Northern Ireland will enact the same legislation to deal with people who trade in pornography.
I share the doubts expressed by my hon. Friend the Member for Woking (Mr. 1868 Onslow) whether the Director of Public Prosecutions will consent to the bringing of prosecutions. I am sorry that we have not had the benefit of the legal opinion of one of the Law Officers. We were, however, very pleased to have the benefit of the advice of my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith). His opinion has satisfied me and it therefore gives me great pleasure to support both Amendments and to welcome the Bill.
§ Question put and agreed to.
§ Remaining Lords Amendment agreed to.