HL Deb 29 May 1923 vol 54 cc253-66

Order of the Day for the Second Reading read.

EARL RUSSELL

My Lords, the Bill which I have to ask your Lordships to read a second time this afternoon deals with the question of blasphemy in its criminal aspect. The criminal aspect of blasphemy rests upon many Statutes, some of which are old and quite out of date in their language and are such as are never applied in these days. There is also a rule of Common Law against blasphemy. I think I may summarise the present position of the matter by saying that it amounts to this—that blasphemy is very rarely prosecuted as such. Actual prosecutions for blasphemy under the head of blasphemy are very few, and when they take place they take place almost invariably—I think it would be fair to say as regards the last thirty or forty years quite invariably—in respect of some attendant circumstance, such as violence of language, or language likely to promote a breach of the peace, or language so offensive that it is felt that it should not be tolerated.

It should be, remembered that blasphemy is an ecclesiastical matter, and that the jurisdiction in respect of blasphemy was originally in the ecclesiastical courts and was only transferred to the secular courts at a later date. In 1883, Lord Coleridge, then Lord Chief Justice, laid down a rule of Common Law that the fundamentals of religion might be attacked provided that the decencies of controversy were observed. That, of course, is by no means the scope or tendency of the earlier Statutes against blasphemy. Their objection was to attacks upon the fundamentals of religion. There is another curious fact about it which, I think, it is worth your Lordships' while to bear in mind. That is, that it is not an offence to attack the Christian religion alone as such, but the offence is limited to that religion which is held by the Church of England. There is nothing in the Blasphemy Laws or in the Common Law which makes it an offence to speak as disrespectfully as you like of the Roman Catholic service of the Mass. That, obviously, makes the law partial in its application and difficult to justify.

The present position in regard to blasphemy is that prosecutions are very infrequent. It may, therefore, be asked: Why is it necessary to repeal these laws? We do not in this country imitate the example of the United States where they put a great many laws, sometimes of an excellent character, upon their Statute Book and never enforce or act upon them. We like the laws that we have upon the Statute Book in this country to be enforced and obeyed, and I think it is unfortunate to retain upon the Statute Book a large number of Statutes which are, in effect, dead letters and to keep in existence laws which are not operative.

It may well be asked, and it is the question that I put to myself when I was asked to take charge of this Bill: "If you do away with prosecution for blasphemy, what protection have you against the use of language of a most offensive character?"—language which all your Lordships would deprecate. The answer to that question is simple. You have the protection of the existing law. If the language is used by a public speaker in a public place and is of so violent a character as to be likely to provoke a breach of the peace, he already commits an offence, whether the particular thing he is attacking is religion, or the Prime Minister, or the Soviet Government; and you can proceed against him in respect of that. If his language is abusive and indecent you can, again, get him irrespective of any attack upon religion or any question of blasphemy.

I think it is worth noticing that there is also a growing dissatisfaction with the existence of this law. There has not been a single case of prosecution in recent years in which numbers of clergymen among others, while not in the least upholding the opinions of the person indicted, have not protested against the existence of such a law. They resent the imputation that their religion needs some other form of protection. I am sure that I should have the most rev. Primate with me when I say that he does not desire to rely upon the secular arm to maintain the truths of the Christian religion, and does not desire to punish people for questioning those truths. All the essentials of the Christian religion are, and may be, daily questioned. They are so questioned by books and pamphlets whose circulation runs into thousands and tens of thousands, and are questioned in their essence and attacked in every possible way without any prosecution ensuing, because the thing is done in a way which is regarded as decent.

I think it is undesirable that the test of an offence should be whether the person who commits it has a sense of literary values or not. Merely because he is an ill-educated man and puts his opinions badly and crudely he ought not to be liable to a prosecution from which an educated man escapes because he is able to use language almost of a dignity suited to your Lordships' House. A deputation upon this matter waited upon Mr. Asquith when he was Prime Minister, and I should like to read to the House a word or two from the reply Mr. Asquith made to that deputation. He said: As regards the Statute Law, I have been looking at this Bill of Mr. Holt's, and I do not imagine that there is anybody who would dissent from the statement that most of these Statutes are altogether obsolete. I do not think any of the recent prosecutions have taken place under them, and I agree with you in thinking they might all be swept off the book with very great advantage, or at least with no real hurt. In fact, the real difficulty is the Common Law—not the Statute Law made by Parliament, but the Common Law as made by the Judges. Then he went on to deal with it, and after doing so, said: That shows, of course, a tendency—I do not say it is other than a very beneficial tendency—on the part of the Judges to restrict the scope within which this doctrine can be applied. Now, I understand your desire to be that we should go a step further, and that even this attenuated fragment, or relic, of the old Blasphemy Law should altogether disappear. And I confess, speaking for myself, and only for myself, I am in sympathy with you. I can see no good object—certainly no object which is bound up in any way with the cause of religion—in the maintenance and enforcement of these laws. I think that is rather strong support for the view I have been urging upon your Lordships—that these laws are partial in their operation, that they are merely a relic of laws which are no longer in consonance with general public opinion, and no longer in consonance with the desire we all have to promote speech which is free as possible so long as it is kept within reasonable and decent bounds.

When you come to reading I do not believe people have the same right to complain of being offended, because it rests with them whether they should buy or read the book or the pamphlet in which the words objected to are contained. When you have the spoken word you have full powers to deal with it now under the existing law without treating it under this relic of Ecclesiastical Law which always causes a disturbance in the public mind. I think, therefore, we should be well advised, and bring ourselves more in consonance with modern views and opinion, if we were to do away with it.

The Bill of which I move the Second Reading consists really of only one operative clause to the effect that "after the passing of this Act no criminal proceedings shall be instituted in any court against any person for schism, heresy, blasphemy, blasphemous libel, or atheism." I have not thought it necessary to include in the Bill by way of schedule the Acts whose repeal is involved in the passage of this Bill, because they will be impliedly repealed by the Bill. I ask your Lordships this afternoon to say that you cannot properly produce any reasonable or logical justification for maintaining this little remnant of an old law which was, in fact, the law of persecution of the public at large by one religious sect. Many things are said which I find very offensive, connected not with blasphemy, but with other subjects, but I have never desired that the people who said them should be put in prison merely because they hurt my feelings, and I do not think that members of the Church of England are entitled to any special protection of that sort. The books which are already published freely, and which circulate without hindrance, must be of a character, if they were read by believers, which, I should think, would be very painful to their feelings, but they are not suppressed because they have a certain literary quality about them. I cannot think that anyone who values his religion would care nowadays to have it supported by the secular arm, and I cannot think that your Lordships are so out of touch with public feelings as to wish to maintain any longer these rather archaic methods and proceedings.

I have pointed out to your Lordships that nothing will be lost in public decency by the passage of this Bill, and I think much will be gained in avoiding disturbances of the public mind. If I may, I will give your Lordships an instance, particularly as the man concerned is dead. A man called Gott, whom many of your Lordships may remember, was prosecuted, under the Blasphemy Laws, I think, and his was a case which no one could possibly have wished to support. The language he used was of a kind we should all deprecate, and one felt it was proper that he should be prevented from using it. But one also felt, and all those whose opinions are similar to mine felt, that it was impossible, or very difficult, to refuse in some way to offer him support when he was prosecuted under this law; whereas, if he had been prosecuted under the ordinary law, we should have been quite pleased to see that he was so dealt with and prosecuted. For these reasons I commend this Bill to your Lordships' notice, and I hope your Lordships will think fit to give it a Second Heading. I beg to move.

Moved, That the Bill be now read 2ª.—(Earl Russell.)

LORD PHILLIMOKE

My Lords, I do not think those who entrusted the noble Earl with this Bill have been very clever in their drafting of it. As it stands it would prevent all prosecutions against clergymen in the Church of England who, holding office and deriving revenues from the Church of England, were to preach doctrines entirely contrary to Christianity, and, if I am right in thinking this Bill will refer to Scotland as well as to England, it would equally prevent prosecutions in the Established Church of Scotland against any minister who taught something contrary to the faith that he was paid to teach. That is a criticism on the form of the Bill. I cannot think that those who drew it knew very much about that with which they were dealing.

With regard to the rest of the Bill, I venture to suggest to your Lordships that since the decision of Lord Coleridge in 1883—which I had to follow and apply in a case which is referred to in the little pamphlet from which the noble Earl has been quoting, the case of a man named Boulter in, I think, 1910, and which has been applied by Mr. Justice Avory in a later case—there is in the laws as they are now worked with regard to blasphemy and blasphemous libel nothing but a protection of decent people, not necessarily members of the Church of England, but decent Christians of all kinds, from having their ears and eyes offended by horrors which to them are much worse than assault and battery. That decent men and women should be obliged, as they pass along the street, to see offensive pictures or placards, or to hear orators in Hyde Park shouting the sort of offensive thing which has been the subject of prosecution in all the modern cases, is to interfere with the ordinary comforts and decencies of civilisation with regard to those people.

I am not accepting the view of the noble Earl that that would be sufficiently prevented by saying that the language tended to a broach of the peace, and I cannot conceive how it would apply to placards or to circulars thrust into people's hands which they would have to read before they could reject them. I venture to suggest that as the law now stands it is not a protection to the Church of England, not an enforcement of Christianity or of the Christianity as taught in the Church of England, but a protection to the comfort and ordinary life of ordinary men and women, and that it is very undesirable that it should be interfered with.

THE LORD ARCHBISHOP OF CANTERBURY

My Lords, the noble Earl who introduced this Bill referred to myself as likely not to desire to come forward to seek for secular support in defence of the doctrines of organised Christianity in this country of which I may be supposed to be, at least in some measure, the spokesman. The noble Earl is right in supposing that the last thing I should think of doing would be to come here to deprecate the passing of a Bill like this because the passing of it would be likely to be a serious detriment and harm to organised Christianity in this country. But there may be other very good reasons why the passing of a Bill like this would be misleading in a high degree and to the detriment of the public good in an indirect way.

The noble Earl quoted words used by Mr. Asquith, when he was Prime Minister, to a deputation which waited upon him to urge the necessity of such a measure as this and said he thought he could quote Mr. Asquith as having given support to the proposals of the deputation. What Mr. Asquith did say was that these things were an anachronism, and might be swept away with advantage; then, apparently, Mr. Asquith corrected himself, and said, "or at least with no real hurt." That is precisely what a great many people would say. It will make no practical difference to organised Christianity in this country whether such a measure as the noble Earl proposes were passed into law or not. It would have no appreciable effect whatever.

But that does not cover all the ground. Whether its passage might have an in direct effect is another thing altogether. If no laws were in existence, no Common Law, declaring the necessity to protect the religious life of this country against occasions of indecent and gross profanity, I should not come here and ask for the enactment of such a law. To do so would be to proclaim that we were in need of such protection. We are not, and the last thing I wish is the buttressing of our religious and ecclesiastical position by an artificial fence of this kind. To take an overt step in order to repeal offences which, by the noble Earl's admission, do not exist to an appreciable degree, for which he is not able to give any historic examples of the least importance, and which he says would be regarded as inoffensive unless they were accompanied by offences and outrages of another sort, would be to mislead the public altogether. It would be believed that we required some protection which we do not require; we should be supposed to be calling for the protection of the public from wrongs and grievances which were pressing on many subjects of the Crown and to remove which required some definite action on our part. But that would be interpreted as meaning some change of judgment on our part. It would be misleading to say that because certain parts of our existing Common Law, and certain parts of our Statute Law, can be found that are not practically operative they ought to be repealed. It would do harm and not good in this country at this moment.

For these reasons I think it would be undesirable to take this step. There are many anachronisms in our laws at the moment, many things which are out of date, which we should not enact now if they were not already on the Statute Book. There are things in our Common Law which no one would desire to make part of our law to-day. But it does not follow that we ought to ferret these things out and bring in a Bill to repeal them, unless some definite grievance is shown of a specific kind, a grievance which can be proved to be pressing hardly upon certain people at the moment. Not a vestige of evidence is brought forward to show that anything of the kind is taking place to-day, and while I should not be afraid of the practical and direct result coming from the Bill, I believe that indirectly it might be extremely mischievous, and I shall vote against the Second Reading.

THE PARLIAMENTARY SECRETARY OF THE BOARD OF EDUCATION (THE EARL OF ONSLOW)

My Lords, as far as the Government are concerned we are somewhat surprised that the noble Earl should have introduced this Bill, because the only form of blasphemy which is punishable by the civil court is that in which there is an intention of abusing, insulting or misleading others by means of contumacious abuse of the Christian religion. The noble Earl fully admitted that point. That is the only part of the Blasphemy Laws which is in any way operative. The noble and learned Lord, Lord Phillimore, called attention to two cases, in one of which he sat as Judge and the other was decided by Mr. Justice Avory. I have a note of the advice which Mr. Justice Avory gave to the jury. He told them that they should ask themselves whether the instincts of a person of strong religious feelings, on seeing or hearing the words complained of, might be to give the man a thrashing or address him in such a manner as to provoke a breach of the peace. And this advice to the jury was approved by the Court of Criminal Appeal. The noble Earl quoted a passage from a ruling of Lord Coleridge in 1883 in which he said that ordinary criticism or an attack in intemperate language on the Christian religion was by no means an offence against the law.

The law is directed against those people who attack the Christian religion in an abusive and outrageous manner, or who distribute pamphlets in the same sense. The noble Earl referred to pamphlets and said that he thought they would be leas offensive than the actual spoken word, but it is quite possible for pamphlets to be equally offensive as the spoken word. The people who distribute such pamphlets select public places where decent people resort, and in doing so they may promote a breach of the peace. I submit that language of this kind is most offensive to many people and chat they ought to be protected against it. I think the noble Earl admits that. He tells us that the Common Law is at present sufficient, but nobody wishes to give any possible chance for anybody to use language of this kind, and as the Blasphemy Laws, so far as they are operative, are directed against language of this kind I cannot see any necessity for interfering with them.

Let me touch upon the question of schism, heresy, and atheism, mentioned in the Bill. These matters are no longer offences against the Common Law or against any existing Statute cognizable in any secular court. As the most rev. Primate has said, it is scarcely necessary at the present time to interfere with the law as it stands in regard to matters which are cognizable in ecclesiastical courts. As I said before, the offence which is noticeable by the secular court is the offence of blasphemy and blasphemous libel, which is certainly most offensive to everybody in the country, whatever their religious opinion may be. I trust, therefore, that your Lordships will agree that it is not necessary to proceed with any modification of the law, and that the House will not give a Second Reading to this Bill.

EARL BEAUCHAMP

My Lords, I think it will be quite obvious to those who have listened to this debate that there is a very real element of difficulty in regard to this measure, and it arises chiefly from the use of language, and from the fact that we are not in this country always used to defining exactly what we mean by the words which we employ. There is a great deal of common ground between the noble Earl who has just spoken, the most rev. Primate and the noble Earl who has introduced this Bill. We are all of us agree that blasphemy used with the intention of being offensive to other people ought to be prohibited and punished. I think we are also agreed that blasphemy, in the sense in which the word was used when the original Blasphemy Laws were passed, is not necessarily offensive in the same way. For instance, a great many works of philosophy have been written since the Blasphemy Laws were passed which to members of your Lordships House to-day would not seem to be of such a character that they should be the subject of prosecution, although under the strict letter of the law, interpreted by those who passed the law at the time, those works would have been a ground for prosecution and the people who wrote them would undoubtedly have been punished.

In these circumstances it is obvious that there is a great deal of common ground between noble Lords opposite and the noble Earl behind me, and it seems to me that it ought to be quite possible by a discussion in Committee to arrive at some kind of an agreed measure. As was pointed out by the noble Earl behind me, these laws, as they stand at present, often do not apply in cases when very offensive terms are used, terms, for instance, which are considered offensive by members of the Roman Catholic Church in this country. At present the Blasphemy Laws apply only when terms are used which are offensive to the faith and the feelings of members of the Church of England.

A NOBLE LORD

No.

EARL BEAUCHAMP

Surely if we wish to protect members of the Church of England who feel strongly in this matter against the use of terms of that kind we ought to be equally severe on those who use expressions offensive to members of the Roman Catholic or other faiths, and they ought to be punished equally with those who use terms offensive to members of the Church of England. I am bound to say that I did feel that the questions mentioned by the noble and learned Lord behind me might quite well have been dealt with in Committee.

One point was mentioned, I think by the most rev. Primate, to which I hope he will allow me to make an addition. I refer to the opinion of Mr. Asquith, which he quoted, because I see that in the speech to which he referred Mr. Asquith said: Although…the vote which I gave in favour of Mr. Bradlaugh's Bill"— which is the same as this Bill— was given at a much earlier stage of my political existence, I see no reason to repent it, or to doubt that if the opportunity offered I should give a similar vote again. There is another point in connection with this Bill which I think deserves some attention. Of late years these laws have been put into operation not by the central Government but by local authorities. Generally speaking, I should be very willing to trust in this matter to the enlightened opinion of the Home Office, but I am not quite sure that any of your Lordships would feel that the judgment exercised by local authorities is always so wise as the judgment exercised by the central authority here in London. In these circumstances I think that we might very well proceed further with this Bill and consider it in Committee. As time goes on circumstances change, and the circumstances of this question have changed so largely that I really think we might proceed to make some alteration in this particular law.

THE MARQUESS OF SALISBURY

My Lords, the noble Earl who has just sat down rather suggested to your Lordships that this Bill is open to a considerable amount of criticism but that it could be properly dealt with in Committee. I should be rather sorry if your Lordships allowed this Bill to go into Committee, because there does not appear to be any real case for such a Bill. If the noble Earl in charge of the Bill, or, indeed, any other noble Lord, could show that what we are accustomed to call the legitimate expression of opinion upon these deep religious subjects is in any way restricted by the present law, and that men who do not agree with us upon these matters are prevented from stating their views even in the most extreme form in order that they may be read and considered by others—if it could be shown, in short, that the present law interfered with the freedom of expression of opinion, then there would be some case for action.

I have no real personal knowledge of this subject, but, as I understand the matter, there really is no such case. There is no difficulty in the way of anybody who forms an opinion which he thinks ought to be expressed upon religions matters of the deepest kind, even though it be most antagonistic to Christianity and to the beliefs to which most of your Lordships are passionately attached. There is nothing to prevent him expressing that view, as the law is now administered, and he is perfectly free to do so. But there is undoubtedly a kind of expression of opinion on religious matters which is profoundly offensive to persons whom we are bound to protect—to all sorts of people who look to the law to protect them against what they regard as outrages, just as they are protected in other matters that have to do with decency. They look for protection, and if it were read in the newspapers to-morrow morning that your Lordships had accorded a Second Reading to a Bill which was going to relax in any degree the protection which these perfectly innocent persons enjoy, it would have a very unfortunate effect on the public mind, and I do not think it would be wise to take this course unless we hoped to achieve some useful purpose. If any useful purpose were effected by this Bill my argument would drop to the ground, but, if no useful purpose is served, it is surely much wiser to allow the law to remain as it is. I venture to suggest therefore that the wisest course for your Lordships to adopt is to refuse to read this Bill a second time.

EARL RUSSELL

My Lords, the trend of the argument shows, I think, the difficulty which confronts perhaps both the supporters and the opponents of a Bill of this character, because, as the noble Earl below me truly said, there is a considerable measure of agreement between us. The noble Marquess who has just spoken says that he would do nothing to prevent the freest expression of opinion. The most rev. Primate said, as I thought he would, that the last thing he wished to ask for was the protection by the secular arm of his or any other Church. We are also agreed that we object to language which is calculated to he so offensive as to wound feelings very deeply or to lead to a breach of the peace. This is a Bill which could perfectly well be amended, if amendment be necessary, in Committee. I think it is hardly necessary here to deal with the minor points of the noble and learned Lord behind me, because I was not really considering the question of contumacious Clerks in Holy Orders.

The Bill might be amended in Committee, if amendment be necessary, so as to protect us from those dangers which we profess to fear, and from which the opponents of this Bill want to be protected. That being so, I could not help asking myself when I listened to the speeches of those who oppose this Bill—Why this insistence upon maintaining a little bit of obsolete law? I will tell you why it is objected to. It is objected to because people who do speak and write—I am speaking of respectable people—against the Christian religion, dislike to think that under the Statutes as they stand they are liable to prosecution and indictment, and they dislike to think that one particular religion is favoured at the expense of others. It is all very well to talk about wounding people's feelings. There are in this country, at, this moment, I am sorry to say, many sincere people who are devotees of a horrible thing called Christian Science, but I may say the most offensive things I can say against Mrs. Eddy on Clapham Common, and I cannot be prosecuted under the Blasphemy Laws, but only under those things which, as has been said, do defend us, because the question that has to be asked is

whether what is said is calculated to cause a breach of the peace.

That is not the question which is involved in blasphemy. The question there is: Is this language which controverts my religious belief, which was, at the time when the law was passed, the religious belief of the majority of the people of this country? I cannot help feeling that there is some reason for retaining this law which goes beyond mere police measures, as has been suggested, and if those who are opposed to this Bill are sincere they can have no objection to giving it a Second Reading and to saying that they will not take proceedings on religious grounds, but limit such proceedings to grounds of social expediency, common decency, and public peace. In the circumstances I feel that it is my duty to press the Motion for the Second Beading to a Division.

On Question, whether the Bill shall be read 2ª?—

Their Lordships divided:—Contents, 8; Not-Contents, 68.

CONTENTS.
Beauchamp, E. Charnwood, L. Rayleigh, L.
Russell, E. [Teller.] Hemphill, L. Terrington, L. [Teller.]
Raglan, L.
Falkland, V.
NOT-CONTENTS.
Canterbury, L. Abp. Lucan, E. Forester, L.
Salisbury, M. (L. President.) Mayo, E. Glenarthur, L.
Onslow, E. Harris, L.
Bedford, D. Hylton, L.
Devonshire, D. Astor, V. Kilmarnock, L. (E. Erroll.)
Northumberland, D. Goschen, V. Marshall of Chipstead, L.
Somerset, D. Hood, V. Mildmay of Flete, L.
Hutchinson, V. (E. Donoughmore.) Monson, L.
Ailsa, M. Muir Mackenzie, L.
Bath, M. Long, V. Oxenfoord, L. (E. Stair.)
Lansdowne, M. Novar, V. Penrhyn, L.
Peel, V. Phillimore, L.
Cromer, E. (L. Chamberlain.) Pontypridd, L.
Albemarle, E. Askwith, L. Redesdale, L.
Ancaster, E. Biddulph, L. Saltoun, L.
Bradford, E. Braye, L. Somerleyton, L. [Teller.]
Clarendon, E. [Teller.] Chaworth, L. (E. Meath.) Stewart of Garlies, L.
Derby, E. Clinton, L. Stuart of Wortley, L.
Doncaster, E. (D. Buccleuch and Queensberry.) Cottesloe, L. Sudeley, L.
Daryngton, L. Sumner, L.
Eldon, E. Desart, L. (E. Desart.) Teynham, L.
Harrowby, E. Donington, L. Vaux of Harrowden, L.
Howe, E. Dynevor, L. Vivian, L.
Lindsay, E. Ernle, L. Wharton, L.
Lindsey, E. Fairfax of Cameron, L. Wigan, L. (E. Crawford.)

Resolved in the negative, and Motion disagreed to accordingly.