HC Deb 13 July 1977 vol 935 cc448-59

'(1) In the proviso to section 1(3) of the Obscene Publications Act 1959 (which excludes from the scope of that Act anything done in the course of a cinematograph exhibition taking place otherwise than in a private house to which the public are not admitted and anything done in the course of television or sound broadcasting) the words from "a cinematograph exhibition" to "in the course of" shall be omitted.

(2) In section 2 of that Act (prohibition of publication of obscene matter) at the end of subsection (3) there shall be inserted the following subsection:—

  1. "(3A) Proceedings for an offence under this section shall not be instituted except by or with the consent of the Director of Public Prosecutions in any case where the relevant publication or the only other publication which followed or could reasonably have been expected to follow from the relevant publication took place or (as the case may be) was to take place in the course of a cinematograph exhibition; and in this subsection 'the relevant publication' means—
    1. (a) in the case of any proceedings under this section for publishing an obscene article, the publication in respect of which the defendant would be charged if the proceedings were brought; and
    2. (b) in the case of any proceedings under this section for having an obscene article for publication for gain, the publication which, if the proceedings were brought, the defendant would be alleged to have had in contemplation.".

(3) In section 2 of that Act after subsection (4) there shall be inserted the following subsection:—

  1. "(4A) Without prejudice to subsection (4) above, a person shall not be proceeded against for an offence at common law—
    1. (a) in respect of a cinematograph exhibition or anything said or done in the course of a cinematograph exhibition, where it is of the essence of the common law offence that the exhibition or as the case may be, what was said or done was obscene, indecent, offensive, disgusting or injurious to morality; or
    2. (b) in respect of an agreement to give a cinematograph exhibition or to cause anything to be said or done in the course of such an exhibition where the common law offence consists of conspiring to corrupt public morals or to do any act contrary to public moral or decency.".

(4) At the end of section 2 of that Act there shall be added the following subsection:— (7) In this section 'cinematograph exhibition means an exhibition of moving pictures produced on a screen by means which include the projection of light.".

(5) In section 3 of that Act (which among other things makes provision for the forfeiture of obscene articles kept for publication for gain) at the beginning of subsection (3) there shall be inserted the words "Subject to subsection (3A) of this section" and at the end of that subsection there shall be inserted the following subsection:— (3A) Without prejudice to the duty of a court to make an order for the forfeiture of an article where section 1(4) of the Obscene Publications Act 1964 applies (orders made on conviction), in a case where by virtue of subsection (3A) of section 2 of this Act proceedings under the said section 2 for having an article for publication for gain could not be instituted except by or with the consent of the Director of Public Prosecutions, no order for the forfeiture of the article shall be made under this section unless the warrant under which the article was seized was issued on an information laid by or on behalf of the Director of Public Prosecutions.".

(6) In section 4 of that Act (defence of public good) at the beginning of subsection (1) there shall be inserted the words "Subject to subsection (1A) of this section" and at the end of that subsection there shall he inserted the following subsection:— (1A) Subsection (1) of this section shall not apply where the article in question is a moving picture film or soundtrack, but—

  1. (a) a person shall not be convicted of an offence against section 2 of this Act in relation to any such film or soundtrack, and
  2. (b) an order for forfeiture of any such film or soundtrack shall not be made under section 3 of this Act,
  3. if it is proved that publication of the film or soundtrack is justified as being for the public good on the ground that it is in the interests of drama, opera, ballet or any other art, or of literature or learning.".

(7) At the end of section 4 of that Act there shall be added the following subsection:— (3) In this section 'moving picture soundtrack' means any sound record designed for playing with a moving picture film, whether incorporated with the film or not.".'.—[Mr. John.]

Brought up, and read the First time.

Mr. John

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Mr. Bryant Godman Irvine)

With this, we may take Government Amendment No. 171.

Mr. John

This again fulfils an undertaking which the Government gave at the instance of expressions of concern on both sides of the Committee relating to the interim period between the setting up of the committee on obscenity and its report and the position of the film industry in the meantime. It emerged strongly that there was concern that the film industry should not be unduly hampered and restricted in the meantime, and the clause might be described as a holding operation. As the right hon. and learned Member for Wimbledon (Sir Mr. Havers) will recall, that was the undertaking that I gave.

The clause follows broadly the Law Commission's proposed form for making films subject to the Obscene Publications Act, but it is not entirely abolishing the common law offences. Nevertheless, it provides in subsection (3) that proceedings at common law shall not lie against a cinematograph exhibition, in that it follows the Theatres Act.

In subsections (2) and (5), there are provisions to forestall frivolous or vexatious proceedings in that the consent of the Director is now required. It also departs from the Law Commission's draft in subsection (2) dealing with private showings, and so on. That is a very difficult matter to sort out, and it has not been possible to do so in the short period which has obtained between the Committee stage and Report. In view of that, we decided that it would be better to adopt the more simple course of requiring the Director's consent generally rather than trying to draw a more complex line.

The second modification recommended by the Law Commission is in subsection (6), which provides in respect of cinematograph exhibitions a different form of "public good" defence than that applying to publications generally. The revised form follows the Theatres Act, to which it is more appropriate.

There is one feature of the Law Commission's proposals which is not adopted in the clause. It is the exemption for performances in private houses so long as no person under 16 is present and no charge is made. This is a wider point than the one which mainly concerned the Committee. It is for the new working party on obscenity which has been set up by my right hon. Friend to consider that point. I hope that the House will agree to await its report before dealing with it. My right hon. Friend has today published his Answer to a Parliamentary Question indicating to the House the total composition of the committee.

Mr. Emlyn Hoeson (Montgomery)

The effect of this clause will be to amend the Obscene Publications Act 1959 to cover films, public and private, which were specifically excluded from the Act when it was passed.

The Minister referred to the defence of "public good" which is provided virtually in the same terms as that pro- vided in the Theatres Act 1968 and which is slightly narrower in scope than that in Section 4 of the Obscene Publications Act.

Part III of the Law Commission's Report, upon which Parts I and II of the Bill are based, dealt with conspiracies relating to public morals and decency in particular and the common law offences relating to the same subjects in general. In page 123 of that report appear the summary recommendations of the Commission for reform of the law in this area, including an amendment on the lines of the proposed clause.

But the Law Commission also proposed the abolition of common law conspiracy in this area, which is retained by Clause 5(3) of the Bill as it now stands. As I understand it, the reason given by the Government for thus going against the recommendations of the Law Commission is that the subjects of obscenity and morality as a whole should be looked at afresh by a departmental committee under the chairmanship of Sir Bernard Williams and that, for the time being, the old common law should be retained as a safety net.

With this new clause, the Government virtually seek to eat their cake and have it by introducing one of the major recommendations of the Law Commission for reform in this area.

In Amendment No. 19, which is to be discussed later, it is again proposed that the provisions of Clause 5(3) be struck out. Do the Government intend to support that amendment? If they do not, how do they seek to justify its retention alongside piecemeal introduction of the Law Commission's Report on obscenity?

In my view, the Government's approach is wrong. They should have either adopted the Law Commission's recommendation or dropped Clause 5(3). I should like to know their intention in that regard.

Mr. Christopher Price (Lewisham, West)

Although. I did not serve on the Standing Committee, I participated in a delegation to my hon. Friend the Minister of State about this issue before the Bill was published with representatives of the Defence of Literature and the Arts Society.

Although the distance that the Government have gone is not nearly as far as we had wished, and although I agree with the hon. and learned Member for Montgomery (Mr. Hooson) that piecemeal approaches to Law Commission Reports of this kind are not a satisfactory way of proceeding, I should like substantially to thank my hon. Friend for the distance that he has been able to go.

The protection of the Director of Public Prosecutions against frivolous prosecutions in this area is very important. It will eliminate some of the private prosecutions by Mr. Raymond Blackburn which we have had in the past and which have caused the public purse enormous expense, a number of them having ended in acquittal.

In passing I might say that I wish only that we had the Director's fiat against prosecutions for blasphemous libel, because we could have been spared some of the nonsense that we have experienced only this week. The provisions of the new clause could be put at nullity by the police acting with the Post Office. That is because under the Post Office Acts it is possible to prosecute in connection with a film which it is legal to show and about which the Director might decide there is no case. However, it might be illegal to import that film and to send it through the post once it is in this country.

4.30 p.m.

There have been some ridiculous cases of that kind where the Government as the Home Office have taken one attitude and the Government in their capacity of being responsible for Customs and Excise and the transmission of material through the post have taken another. I am sorry that the new clause about a public prosecutor has not been accepted because it would have eliminated that sort of nonsense. May we have an assurance that these nonsenses will not take place in the future?

Can the Minister say when the Williams working party will complete its considerations? I shall go on talking for a minute or two so that messages can be passed and the Minister can absorb them. May we have an estimate of when the Williams Committee will report so that we know when we can next take action finally to clear up the whole business of obscenity as it relates to films and other matters?

We have to put on record that what the Government are doing now represents a temporary solution. The sooner we have a clear law on the issue, the better. We have not yet got that. But with a sensible Attorney-General and an intelligent Director of Public Prosecutions we shall have moved a little further forward.

Sir Michael Havers (Wimbledon)

I am grateful to the Government for their response to the proposals that we made in Committee. There are two, and perhaps three, advantages of the new clause. First, we shall now be able to brim., cinema clubs into the ambit of the criminal law. Secondly, we shall be able to bring the distributors, who scoop all the money, into the ambit of the criminal law. We shall have one law of obscenity to cover each area. It is essential that the law is revised as soon as possible.

I am pleased that the composition of the Williams Committee has been announced. It is a long time since the setting up of the committee was announced in another place. I appreciate the Home Secretary's difficulties in selecting suitable members of the committee. I hope that he will impress upon them the importance of making an early report.

Many criticisms have been made of the 1959 Act. Lord Widgery said: Until we get a satisfactory definition of obscenity…". The Master of the Rolls said that the law had "misfired". Gordon Slynn for the Attorney-General said that it was "virtually unworkable". Lord Justice Philimore said it involved just the sort of test a jury shrinks from applying. Lord Wilberforce talked of the illogical and unscientific character of the Act". If we are to have one Act that applies to all materials, it must work. I do not want to rock the boat, but the new clause is not exactly in the terms that we proposed. Prosecutions are to be restricted to the Director of Public Prosecutions. I am not arguing the case for private prosecutions, but I am talking of the impossibility of the DPP carrying out the task imposed upon him. Not only will he have to decide whether to prosecute in connection with films intended for cinemas and clubs but, because of the way in which the new clause is drafted, he or his assistant will have to examine all the 8mm films that might be seized. That is an impossible task. I do not believe that it was intended by the draftsmen. The Law Commission intended that the DPP's consent should be obtained but the present drafting places upon him the burden of examining every 8mm film seized.

The new clause does not provide for the forfeiture of blue films unless a warrant is obtained. The police often know that there is a warehouse containing dirty, obscene material, such as magazines. They do not know definitely whether any films are included. In that case they have an ordinary search warrant, but under the new clause that would not give them the right to confiscate the films. Every time the police suspected that there might be some films they would have to go to the Director's office and obtain the Director's official backing for the operation. That would bring the office to a halt. It cannot be done. That is why our suggested amendment was sensible. The Government's provision would put the Director and his staff into a position where they would not be able to cope.

There is still time for the necessary amendment to be made in another place. I hope that the Government, because they have followed our suggestion and put cinema films within the scope of the obscenity law, will be able to devise a method that will save the Director from dealing with all the 8mm films. Apart from that, we welcome the new clause.

Mr. Michael McNair-Wilson (Newbury)

I rise as an hon. Member with no legal experience but as one who is concerned about the kind of films that are being viewed widely throughout the capital and other cities, and I rise to ask the Minister of State this question: as a result of the change contained in this clause, are we likely to see a rash of more indecent films than would otherwise occur if we left the law as it is, where the public have the right to take out a prosecution, frivolous or otherwise, if they feel that their standards have been affronted?

I understand from something that the Home Secretary said that the setting up of Professor Williams' committee, since it was to have such wide-ranging powers to look at the whole question of obscenity laws as they affect publications and films, meant that the Government would not introduce fresh legislation until the committee had reported and for my part I hope it reports quickly. If that is correct, may I assume that the new clause is an interim measure and that the Government are using it as a device to get over a legal anomaly? Am I right to assume that the Government do not intend it to become the basis for the laws that will cover films shown in this country?

May I also assume that the necessity of obtaining the permission of the DPP is not to become a barrier to the citizen's absolute right under common law to express his doubt about the legality of what is presented to him? I hope that is the case because some of us who have watched this subject over a number of years have not been particularly impressed by the willingness of the Director of Public Prosecutions to take up cases brought to him or to call the sort of expert witnesses who, if they had been called, might have produced very different results in the courts.

I hope that the Minister of State will convey to the Director of Public Prosecutions the doubt and concern that exists not just in my mind but in the minds of many people who wonder how it is that standards seem to slip progressively month by month. We grow weary of being told that everything that is available to be seen in cinemas or read in bookshops is for our good, and that we are prudish fuddy-duddies if we take exception to the affront to public decency that the displays outside cinemas and bookshops clearly constitute.

I now turn to the very contentious expression "the public good". I wonder whether any hon. Member could give an absolute definition of the public good. Does the public good mean that we should lower the moral standards by which we have been brought up? Does it mean that we should regard promiscuity, wife-swapping, homosexuality, rape and violence as being somehow to our benefit? If that is so, I suspect that the Director of Public Prosecutions will look at the Bill and pigeon-hole it because he will regard it as something with which he will not need to busy himself.

I hope that this is purely an interim measure, because it seems that the Government are dodging behind the Director of Public Prosecutions and dodging all the difficulties involved in this most contentious subject until such time as Professor Williams reports. I hope that the Minister of State can say when he is likely to report.

What rôle does the Minister now see for the British Board of Film Censors? The hon. Gentleman answered an Adjournment debate in reply to his hon. Friend the Member for Keighley (Mr. Cryer) on 22nd July 1976, when he made it fairly clear that he was opposed to the concept of central control of matters of film censorship. He did not think that the very sensible proposals put forward by his hon. Friend for a legal status for the Board would meet the concern about the quality of films shown to the general public. But surely the effect of this clause is to create the same sort of central control as that against which the Minister of State appeared to be turning his face.

The Minister of State is shaking his head at me, as if to suggest that the Director of Public Prosecutions will be able to make his judgments, presumably on some sort of regional basis if he can divide his mind so successfully. But surely the clause means that one office will now have the power to say whether a prosecution should be mounted either in the metropolis or in the furthest parts of the United Kingdom. That seems to me—at least in legal terms—to impose some sort of central control. I am sorry that the hon. Gentleman turned his mind away from the suggestion made by his hon. Friend.

4.45 p.m.

I believe that the British Board of Film Censors has done a remarkable job in laying down guidelines which have ensured that those who went to the cinema saw what was worth seeing. I have always felt that the Board could have become much more effective. However, the Minister of State does not appear to want that.

I ask the Minister of State once again to tell the House that in his view this clause will not become a licence for a further lowering of the standards of public decency, at least in terms of the films shown in our cinemas, and that he will try to argue that there is such a thing as the public good which will not further damage contemporary morality or the moral standards of this Christian nation.

Mr. John

The debate has divided itself into very differing expressions of view. I shall try to respond to each point in turn.

I say to the right hon. and learned Member for Wimbledon (Sir M. Havers) that I do not believe that his point about the consent of the Director of Public Prosecutions is correct, in view of lines 9 to 12 of the proposed new clause. However, I undertake to look at this clause again before the Bill goes to another place. The new clause was a response to the Committee and I should therefore be unhappy if it did not respond accurately to what the Committee felt on this matter.

The hon. and learned Member for Mongomery (Mr. Hooson) is also wrong. We are following the principle recommended by the Law Commission. We are repealing the common law as soon as it is replaced by statutory provision. If the hon. and learned Gentleman looks at the new subsections (3A) and (4A) he will see that that is the effect.

The hon. Member for Newbury (Mr. McNair-Wilson) asked about the flood of new films and so on. In my view this clause will not alter the situation. It does not serve as a conduit pipe leading to the situation that he wants. I have made it clear that this is an interim provision, not a generalised matter. It is because of dissatisfaction, for example with the state of the statute law on this subject that my right hon. Friend the Secretary of State has set up the inquiry into obscenity. I hope that it reports as soon as possible, but, since it is clear that more people are able to say what is wrong with the present law than to say what should replace it—that applies to both sides of the argument—I have no illusion about the fact that it will have a difficult task in coming to conclusions.

On the subject of the British Board of Film Censors and local licensing authorities, I can give an assurance that no change whatever is made in the status of the Board. Film licensing is one of the matters to be considered by the committee on obscenity. In the meantime we have not altered the present situation, apart from making the film industry come under the Obscene Publications Act.

My hon. Friend the Member for Lewisham, West (Mr. Price) and I have discussed this on two or three occasions at my office. We have tried, as a temporary measure, to remove a weakness or an exposure to criticism of one part of the industry. We are dealing with a wider question. I hope that what has been said in the debate will be noted by the new Director of Public Prosecutions. I must reject the strictures of the hon. Member for Newbury on the Director. Directors of Public Prosecution are very honourable men, zealous to guard the law, and the new Director is an outstandingly able man. I do not believe that any of the fears that the hon. Gentleman expressed about certain areas will come about.

The House can pass this clause safe in the knowledge that it protects a particular weakness while the committee on obscenity is examining the matter. I hope that the committee will complete its investigations as soon as possible.

Mr. Christopher Price

My hon. Friend was not able to respond to me about the possible impact of the various laws covering the Customs and Excise and the Post Office after the change in the law made here. Will he undertake to consider the matter before the Bill goes to another place, to see whether there could be a great anomaly in the law which it would be possible to remove? Will he keep an open mind on the matter and see whether he might be able to straighten it out?

Mr. John

I shall keep an open mind.

Sir M. Havers

I am grateful to the Minister for what he said about examining the matter again. I very much hope that what he said is right, because I am sure that it is nobody's intention to overload the Department of the Director of Public Prosecutions. I also hope that the hon. Gentleman will examine my second point about forfeiture, because that is very difficult.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

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