§ Lords amendment: No. 1, in page 2, line 32, leave out "open" and insert "exposed".11.13 am
§ Mr. Tim Sainsbury (Hove)
I beg to move, That this House doth agree with the Lords in the said amendment.
When I moved the Second Reading of the Bill, I emphasised that it was a Bill concerned with what was publicly displayed—I seem to remember speaking about the cover, not the contents—and that it was not a Bill about censorship. If I may take the unusual step of quoting my own words on Second Reading, I said:I should like to take the opportunity to stress that the Bill, like its predecessors, is not concerned with censorship. It makes no judgment, and I personally make no judgment, on whether the material, the public display of which would be controlled under the Bill, should be available or should be published. Equally, I emphasise that the provisions of the Bill in no way imply approval of the availability of such material".—[Official Report, 30 January 1981; Vol. 997, c. 1168.]
Despite using words in the Bill as it came before the House on Second Reading which were derived from the Bill which had been introduced by the Government in 1973, it appeared that there was doubt and ambiguity in the subsection concerned with making it clear whether the cover or the contents were dealt with by the Bill. A number of hon. Members reached the conclusion that subsection (5) was not that well worded and was not readily understandable plain English. The subsection (5) which emerged out of our deliberations in Committee was a considerable improvement on the subsection with which we entered Committee.
The amendment made in another place substitutes for the words "open to view" in clause 1(5)(a) the words "exposed to view". The amendment removes what could be held to be a remaining cause of ambiguity. The meaning and effect of the Bill is in no way changed, whether we have the words "open to view" or "exposed to view", but I accept that using "exposed to view" is a little better English and will make it that much clearer to some people that we are concerned not with the contents but with the cover of what is publicly displayed.
If the amendment is accepted, subsection (5)(a) will read:there shall be disregarded any part of that matter which is not exposed to view".Since the effect of accepting the amendment is to make our intent that much clearer and to improve the English of this part of the Bill, I commend the Lords amendment.
§ Mr. Ivan Lawrence (Burton)
I hope that my hon. Friend the Member for Hove (Mr. Sainsbury), for whom we all have the greatest admiration for the way in which he has brought his Bill almost to the statute book, will not take it amiss if I make the point that I doubt whether this change removes an ambiguity and that, even it it does, it can do so only the basis that the spirit of the Bill has been changed.
On the face of it, there is no difference between the words "open" and "exposed". I say that because the 724 Shorter Oxford English Dictionary appears to indicate that. About the word "open", it says, amongst other meanings "exposed to view, displayed". About the word "expose" it says, amongst other meanings "to lay open". It is a matter of individual preference, therefore, there being no difference, whether we leave the words as they are or we change them so that more people are happier than with the original words.
I do not express a strong view either way about whether the change on that basis would be worth resisting, but what worries me is that there is a move, fortunately not yet fully developed, for judges to say that in interpreting our statutes they must look to see what was said in Parliament when the Bill went through or, it is suggested, at the reports of Royal Commissions and the conclusions drawn therein. Fortunately, the change that that move is likely to occasion has not yet been brought about, but what would happen if, in a few years, that change was brought about and judges began to look to see what was the intention of Parliament when it substituted the word "exposed" for the word "open"?
If we agree with the Lords amendment, it appears that we shall be agreeing on this basis, and I refer to two passages in the speeches in the other place when reasons were given for substituting the word "exposed" for the word "open". The first example is the reason given by the Earl of Listowel. I do not wish to be in breach of any parliamentary rule that prevents an hon. Member quoting a speech in the other place, so perhaps I may take out the inverted commas and, as it were, use my own words in interpreting what the noble Lord said.
His view was that if the words "exposed to view" were used instead of the words "open to view", that would make it clear that the law was concerned only when some part of a book or magazine was deliberately exposed for customers to see. Lord Jenkins of Putney made the same point. He was saying, as I understand, it, that it seemed to him that the word "exposed" had a more deliberate connotation than the word "open". The word "open" suggested to him an accidental display, whereas the word "exposed" had a rather more deliberate connotation. It is no part of the purpose of the Bill to limit the offence of publicly displaying indecent material to a situation where a person deliberately and wilfully exposes to view or displays or lays open indecent material.
Clause 1(1) shows that the purpose of the Bill is to go wider. It says:If any indecent matter is publicly displayed—the objective rather than the subjective, the passive rather than the active—the person making the display and any person causing or permitting the display to be made shall be guilty of an offence".In other words, it envisages the situation where someone has made a display by taking something from the back of the shop, subject to the 18-year-old warning qualification, out to the front of the shop and leaving it about and the proprietor does nothing to stop it. He is permitting the display. He may not have been wilful. He may not have been deliberate. He may not have done a specific and deliberate act. He may just, for the time being, not have paid enough regard to the requirements, yet he would be guilty under the Bill.
If, however, it is intended that the meaning of the Bill should be constrained to require a deliberate act, the judges, looking to see what reason the noble Lords gave for the change may not consider that exposure in those 725 circumstances comes within the ambit of the Bill. Although this is not an offence of strict liability, there has to be knowledge. It is equally not an offence where the words "deliberately" or "wilfully" narrow it to a situation where a person deliberately and wilfully does an act and nothing more.
Far from the acceptance of the Lords amendment doing no harm and being merely an exchange of words, there is the possibility—I believe that we have to deal here at this stage with the possibilities when we can spot them—that it might do no good at all. It might restrict the meaning of the application of the Bill that is wanted by my hon. Friend the Member for Hove. It does not remove an ambiguity. Although it may be better English to some people, it may not be more helpful English to judges of the future.
§ Mr. Sainsbury
My hon. and learned Friend's concern appears to be that one word, "deliberate", was used by a noble Lord in another place in connection with the amendment. If we were to have the interpretation of statutes legislation to which my hon. and learned Friend refers, one of the problems that would face courts were the proceedings of Parliament being read diligently would be the possibility that something said in one place appeared to be different from what was said in another.
If my hon. and learned Friend studies the report of the proceedings in Standing Committee C, particularly at columns 47 to 49, on 18 February, he will see that at least in this House we have made it abundantly clear that while we are not making this an offence of strict liability, we are saying that all that is required is knowledge. A display does not have to be made by the proprietor of a shop. If he sees it and allows it to continue, he will have knowledge and will be guilty of an offence.
§ Mr. Lawrence
I should like to accept that intervention as my hon. Friend intends it. But a court may well say that, while the House of Commons in Committee clearly wanted it to be as wide as the sponsor had intended, hon. Members must have changed their minds because when their Lordships narrowed it they accepted the narrowing. If that is a risk, it should be avoided.
There is a simple way round the problem. My objection is based on the argument that judges may take into account the sayings here. If it is made abundantly clear today by my hon. Friend and by the Minister that, in giving our approval to their Lordships' amendment, we are not giving our approval on the basis that it requires an element of deliberation and calculation that was not intended in the Bill, but are doing so merely on the basis that the words "exposed" and "open" are the same, that it changes nothing, and that we do not wish courts to consider that it does change anything—and that the Bill may never go on the statute book if we start messing around with it—my objection will not be worth pressing further than raising it in this speech.
§ Mr. James A. Dunn (Liverpool, Kirkdale)
I understand that those considering the Bill in another place believed that "open" was narrowing the Bill and that "exposing" was extending it. If something was shown that was not open, there would he no offence, while "exposed" now means the outside or the back of the offending material. It need not necessarily be open for an offence to be committed.
§ Mr. Lawrence
That was another element in what one of their Lordships said. The point that comes over most weightily from the noble Lords, whose opinions I have endeavoured to reconstruct, is that there is an element of deliberation. If my point evokes the response from the sponsor of the Bill and the Minister of State that I have requested, I shall not threaten the future of the Bill, which I welcome in every way, by pressing this matter to a Division.
§ Mr. W. R. Rees-Davies (Thanet, West)
I am sorry to disagree with part of what my hon. and learned Friend the Member for Burton (Mr. Lawrence) has said. I think that those in another place were, on the whole, right to insert the words "exposed to view". The essence of the Bill is concerned with indecent matter being publicly displayed—the display and the making of the display—and therefore the public nuisance that is involved in people being forced to see indecent material on display. It follows that the material must be exposed to view in the sense that this is not entirely accidental. A position could arise where a curtain was lifted, providing obliquely the chance to see into the shop by accident. That would in a sense amount to "open to view", but it would not be "exposed to view". There must be to some degree some intention that it be on public display.
This is a narrow point. I do not see in it the dangers to which reference has been made. I am happy that the amendment should remain, if my hon. Friend the Member for Hove (Mr. Sainsbury) is equally happy. On the whole, I gather that he is prepared to accept it, as is the Minister.
§ Mr. David Mellor (Putney)
I view the amendment with some concern. I associate myself with the observations of my hon. and learned Friend the Member for Burton (Mr. Lawrence).
Before turning to the detail of the matter, let me say that what we are concerned with here is fine tuning to the Bill. Once again I congratulate my hon. Friend the Member for Hove (Mr. Sainsbury) on bringing to the statute book what many regard as a valuable piece of legislation. I say that notwithstanding the fact that I have, on occasions, suggested some changes to the Bill. I admit to regretting that one of the proposed Lords amendments which we are not considering today is that which was concerned with the definition of "indecent". However, one would not want to carp on an occasion such as this. I hope that the confidence expressed in the effectiveness of the central definition of "indecent" in the Bill, as is commonly understood in the law, will be effective in doing all that we wish.
I hope that it is not wrong of me to say that it is regrettable—even though we are engaged in fine tuning—that there is no spokesman of the official Opposition present today, particularly as the usual Opposition spokesman, the hon. Member for Halifax (Dr. Summerskill) has been most helpful at other stages of the Bill. I am not sure that it is in keeping with the importance of this measure that no one should be present to speak for the Opposition, particularly as this debate has already involved a matter which goes beyond what has been suggested as merely a substitution of one word for another that means substantially the same thing.
§ Mr. Lawrence
Will my hon. Friend observe that this does not seem to be a matter of concern to either the Liberal Party or the Social Democratic Party?
§ Mr. James A. Dunn
I am sure that the hon. Member would not wish to be unfair to my hon. Friend the Member for Halifax (Dr. Summerskill). We had no notice that this matter was to be brought before the House today. That was our difficulty earlier in the week. I consulted the sponsor of the Bill to bring to his attention the fact that the announcement had been made at a late stage. In those circumstances, I hope that the hon. Gentleman will limit his strictures.
§ Mr. Mellor
I accept what the hon. Gentleman says. I have been an ally of the hon. Member for Halifax on a number of matters concerned with the Bill. My comments were not directed to her personally. She has been most accomplished in her grasp of these issues.
We are in difficulty with the amendment, because either it means something or it does not mean anything. If it means nothing, why should we accept it?
§ Mr. Sainsbury
When I proposed that the House should agree to the amendment, I mentioned that the English would be a little more elegant if we used the word "exposed" rather than "open", and that the meaning would not be changed. In those circumstances, and bearing in mind the limitations of time for Private Members' legislation and the fact that this is the last day available in this Parliament for such legislation, surely it would be foolish to quarrel when one is improving the elegance of the English and not changing the meaning.
§ Mr. Mellor
I accept that. One hopes that that is being done. Indeed, in public health legislation, and matters of that kind, the word "exposed" is used when "open" is the meaning. That may well be right. However, it would be sinister if the implication were to be drawn from this that somehow we were making it more difficult to prove an offence when there was a display of material if it were open to argument that the fact that there had not been any wilful exposure somehow limited the ability to obtain a conviction.
It would be helpful if the Minister could assist us on the matter of definition. I shall be minded to accept what has been said if what we are talking about is elegance of language and bringing the word "exposed", in the context of display, into line with words used in other statutes involving the display of other material. It would be most unfortunate if this were in any way to limit the Bill, which is what appeared to be in the minds of one or two of those who spoke in the other place.
§ Mr. John Wheeler (Paddington)
We have reached the final stage of the Bill in this House. I, too, congratulate my hon. Friend the Member for Hove (Mr. Sainsbury) on the excellent progress that he has been able to make on this matter and on his care and diligence in assisting so many hon. Members who have taken an interest in this subject.
However, I should like to take up the theme of my hon. and learned Friend the Member for Burton (Mr. Lawrence) and the view of my hon. Friend the Member for Putney (Mr. Mellor) about the amendment and the use of the word "exposed" instead of "open". As a lay judge, I see no particular difficulty in the use of the word "exposed", nor do I believe that it would leave any court in doubt about the intention of the House as to the contents of the legislation.
The clause will be concerned with establishing the knowledge that the material, or the publication, whatever 728 it may be, was deliberately exposed. It is that knowledge on the part of the proprietor of the premises or of his servant that is the key element with which the court will be concerned when considering a charge. Therefore, I do not share my hon. and learned Friend's concern that the amendment in any way substantially changes the Bill or hinders what those of us who have supported it over a period wish to see achieved. On the contrary, the amendment and the Bill will render an enormous service to those who live in our great cities, not least in London.
A recent survey in my constituency has shown that in South Paddington alone there are no fewer than 14 premises involved in the sex industry, selling goods such as cassette films, books or other material, which for the most part they are entitled to sell, but which can give offence if exposed to the gaze of the public, who are perfectly entitled to use the streets in the central London district of South Paddington. The fact that in one very small area of central London so many of these premises exist amply justifies the intention of the Bill and the Lords' amendment. I am of the opinion that the sooner the Bill becomes law, the better for the good of the community.
Throughout the discussions on the Bill I have maintained a close liaison with the residents of central London, whom I have consulted carefully about the amendments made to the Bill and the clauses that we are considering today. They have made it clear throughout that they do not wish to see the House enact a form of censorship. They wish to see on the statute book an Act that deals with display and what may be seen by the passenger in the street. There in no question of moral judgment. Equally, there is no question of approval or disapproval of what may be held in the premises that abut the streets. I find no difficulty in accepting the proposed amendment, and I commend it to the House.
§ The Minister of State, Home Office (Mr. Patrick Mayhew)
We may not have been making great headlines today, but it is this aspect of the work of Parliament that tends to be rather neglected when attempts are made from time to time to comment on and assess the value of the work that is done in the Chamber. We have a responsibility to make our legislation as watertight and as clear and effective as possible. No doubt it all seems dull, but it is important. This short debate has served to illustrate that principle. Rather to my surprise, it has turned out to be an interesting debate. I think that it might be of some help to the House if I offer my advice on the consequence of the amendment that was made in another place.
My hon. and learned Friend the Member for Burton (Mr. Lawrence) took the view, which I respect, that some alteration had been made to the ambit of the Bill. He envisaged a day when the courts, if called upon to construe a statute, would go through all the accounts of what took place in both Houses of Parliament, on the Floor of each House and in Committee. He drew attention to possible uncertainties that might result if that took place. My hon. and learned Friend made a good case against any departure from the normal rule.
If, in appearing in courts and in trying to assist the courts on the meaning of statutes passed by Parliament, we are to be required to construe what was said in Standing Committee C, read what was said in Committee in another place, and compare the two versions, we shall increase enormously the time that is taken to deal with the matter. I hope that the courts will stand by the well-established and 729 sensible rule that they merely construe the language used by Parliament in the statute and give to it its ordinary and natural meaning.
§ Mr. Lawrence
The issue is not whether the courts will stand by the rule, but whether Parliament stands by it. We have stopped an interpretation Bill from passing through this place which required something along the lines that I fear and my hon. and learned Friend fears.
§ Mr. Mayhew
That is an important and apposite point.
It may be helpful if I remind the House of the history of the matter. Concern was expressed about the meaning of the original clause 1(5) during the third sitting of Standing Committee C. That concern came to a head on Report. It was questioned whether the subsection excluded the hidden contents of a book, which was our intention. It has been our intention throughout to guard against that which is open to view. We are not seeking to make the Bill bite upon what is contained in a book or magazine, provided that the contents are not open to view. The drafting was clarified during the fourth sitting by an amendment tabled by my hon. Friend the Member for Hove (Mr. Sainsbury). I associate myself with what has been said about his achievement in bringing the Bill to its present stage.
Several hon. Members expressed their reservation about the term "open to view". My hon. Friend the Member for Chelsea (Mr. Scott), the right hon. and learned Member for Dulwich (Mr. Silkin) and others expressed their concern. My hon. Friend undertook to reconsider the matter. He came to the conclusion—it was an entirely understandable one—that no further amendment was necessary.
When the Bill went to another place, a debate took place on the Earl of Listowel's amendment and it was argued that "exposed" more clearly excluded the contents of a book and that the element of deliberateness implied by the term would safeguard the shopkeeper if a customer opend a book and displayed its contents. The view which I have taken and, much more reliably, the view which those whose job it is to advise the Government on statutory drafing have taken, is that the original formula of "open to view" was perfectly all right and that it achieved the purpose of the sponsor and the purpose of all those who have been wishing the Bill well.
That does not mean that there is anything wrong in our view with the wording "exposed to view" that has been preferred by those in another place. I do not believe that it makes a rap of difference one way or another. We must bear in mind that the guts of the Bill are contained in clause 1(1), which sets up the offence of causing an indecent display in these words:If any indecent matter is publicly displayed the person making the display and any person causing or permitting the display to be made shall be guilty of an offence.
In subsection (5) we are merely inserting a saver. We are saying, in effect, that when consideration is given to the word "matter" there should be disregarded any part of the matter which is not open to view or exposed to view. We are not qualifying the nature of the offence that is defined in subsection (1). It is a well-established principle that one cannot be guilty of an offence which is described as causing or permitting something to take place unless the 730 factual essence of the offence is known to the person who is being prosecuted. We are inserting a definition of "matter".
Whichever of the alternatives we use, either "open to view" or "exposed to view", the essence of the issue is that we are describing a state of affairs which is constituted by the visibility or non-visibility of the written or pictorial material with which we are concerned. One is having no effect upon the criminal contempt that has to be proved before the offence that is prescribed in clause 1 can be committed if one describes the pictorial or written material as being "open to view" or "exposed to view". It does not matter either way.
§ Mr. James A. Dunn
Perhaps I might put to the Minister the question that I asked the hon. and learned Member for Burton (Mr. Lawrence). If the House accepts the amendment, is it possible that a book can be exposed to view—not open to view—and thereby an offence is committed? If we restrict ourselves to the word "open", the book could be exposed, but would also have to be open.
§ Mr. Mayhew
I do not believe that there is any widening or narrowing in the ambit of the Bill. That which the Bill would bite upon if we were to use and stick to the expression "open to view" will still be able to be bitten upon by the Bill if we adopt the wording that has been employed in another place.
§ Mr. Lawrence
My hon. and learned Friend has said that, in his view, the wording does not matter. Would he be good enough to go further and say that not only is that his view but that it is not his intention that the word "exposed" should change the meaning of the word "open"?
§ Mr. Mayhew
My intention does not matter, because I am not a sponsor of the Bill. I should not be happy if the amendment introduced any significant change in the ambit of the Bill, because, as I said in Committee, I thought that the ambit of the Bill was correct. Therefore, I do not believe that the fears that have been expressed are well founded. Hon. Members who served on the Committee will recall that concern was expressed about whether the term "open to view" might be interpreted in the sense of "available for viewing" and thus held to include the hidden contents of a book or magazine. Similar fears were expressed in another place, which led to the present amendment.
I do not believe that the fears are well founded, but I am satisfied that the term "exposed to view" will do the job as well as the original wording or the wording introduced during the fourth sitting of the Committee. On that basis, I commend the amendment to the House.
§ Question put and agreed to.