§ House again in Committee.
EARL JOWITT moved, after "which" to insert:
is of a kind likely to fall into the hands of children or young persons and.
The noble and learned Earl said: Though this is a manuscript Amendment, it is very much like the first Amendment which is in my name on the Order Paper but which I did not move. I am not going to repeat at any length arguments which I used before about this matter, except to make it plain that whereas in all quarters of the House we are at one with the Government in wanting to make it impossible for publications of this sort to go on, we are also in all quarters of the House anxious to see that we do not draft our Bill in such wide terms that it may have consequences which none of us desire. It is for that object only that I move this Amendment.
The Lord Chancellor may say that he thinks the purport of this Amendment is already implicit in the Bill. I confess that I have doubts whether that is so. In order that I may put your Lordships in touch with the matter, may I briefly describe what the law is in the somewhat analogous matter of indecent publications, bearing in mind that this is a Common Law offence and that the Statute generally comes in merely in aid of the Common Law, to give, for instance, powers of search and that sort of thing. The Common Law doctrine is stated in this way:
Anyone is guilty of a common law misdemeanour who publishes any indecent matter tending to the destruction of the morals of society and to deprave and corrupt those whose minds are open to immoral influences.
That is a citation from Halsbury's Laws of England. I am sure the Lord Chancellor will agree that that is accurate. Halsbury goes on to say:
But in many cases it is material to consider to whom and under what circumstances the publication is made. Some matters may be properly published: e.g., to practitioners or students of medicine or surgery, the publication of which to boys or girls, or even to the public indiscriminately, would necessarily tend to the corruption of morals and therefore be illegal.
In the celebrated leading case on the matter—Regina v. Hicklin, decided in 1868— the circumstances were these.
Hicklin was an advanced and extreme Protestant who thought that the Roman Catholic practice of the Confessional was a Very undesirable practice which led to immoral consequences. He therefore, in good faith and in the desire to destroy the doctrine of the Confessional, published matter which the courts held to be obscene matter, and the question arose whether he was saved from the consequences of his act by the fact that his motive was a legitimate motive. The courts held that he was not. Chief Justice Cockburn laid down the test of what was obscenity in these words, which are very often quoted:
…the test of obscenity is this: whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.
We have advanced a great deal in many ways since 1868, but it is interesting to see the arguments used in the Hicklin case. One of the outstanding examples of pictorial indecency was said to be the picture of Venus in the Dulwich Gallery. I hope to goodness that no one would regard that as a standard or test of indency at the present time. The great merit of our Common Law is that it has in it sufficient flexibility to enable it to, I will not say move with the times, but mark the trend of opinion of decent people at various stages and ages. Recently a distinguished judge in the Central Criminal Court, presiding in a case such as this, having read the remarks of Chief Justice Cockburn referred to the words "corrupt" and "deprave" and asked:
Well, corrupt and deprave whom?
He went on to ask if it was to be assumed that the standard was that of something suitable for an immature schoolboy; or were we to go even further back than that and to be reduced to the sort of books that one read as a child in the nursery; or were we to have regard to the average man or woman, and particularly the average man or woman likely to read that sort of publication. That judgment, I venture to think, does correctly state the law, and I hope that will prevail. So that is the law with regard to Common Law misdemeanour—and, as I say, Common Law is always more flexible than Statute Law.
Would that apply here? I am not sure. I do not take it upon myself to assert
positively that it would or would not. I think there is a reasonable doubt. If a Statute is being considered, a judge's function is to take the words in the Statute, give them fair meaning and interpret what they say. Here is a very definite and clearly defined Statute—this is, I think, a very well drafted Bill—which sets out that this Act will apply to:
any book, magazine or other like work which consists wholly or mainly of stories told in pictures…"—
portraying matters in certain categories
in such a way that the work as a whole would tend to corrupt a child or young person into whose hands it might fall.
Suppose some medical work fell into the hands of a child—it is unlikely that it would do so, but it might. If one were to propound as a test of whether that was obscene or not the effect it might have on the child into whose hands it falls, it would, looking at it from that point of view, plainly be indecent. If, on the other hand, one took into consideration whether it was at all likely to fall into the hands of a child—obviously it is not intended for a child; it is a medical work intended to be handled by doctors or students, and it would only be by a coincidence or a piece of carelessness that it fell into the hands of a child or young person—from that point of view, it would not be indecent. So it is vital, I think, from that point of view, to get the words plain.
§ I hope and believe that, without in any way cutting down the beneficial effect of this measure, which I do not want to do, we shall here make it plain beyond argument, so that the two schools of thought can have no further controversy about it, that the test is to be the one I have indicated in this draft Amendment: Is the sort of work you are dealing with a work likely to fall into the hands of children and young persons? Of course, these "horror comics" are likely to do so. Why they are called "comics" I cannot think. I see nothing at all comic in them. It is obvious that they are intended for people of very limited intelligence, who cannot read very well and who would like this sort of thing—in so far as anyone likes them. Therefore, works of that kind come within the category of works likely to fall into the hands of children or young persons. Equally, the works of the other kinds which I had in mind—medical 620 works, a statement of the course of a particularly loathsome disease, which I referred to on the last occasion—obviously would not be works likely to fall into the hands of children or young persons. Equally, an artistic work, such as that to which I referred, would not be likely to fall into the hands of children or young persons. If they wanted to do so they could go into a museum and see that sort of thing—but they never do.
§ If we get into the Bill the words which I now propose, it seems to me that the mischief which I fear, will be avoided. It may be that the intention is there all the time. I can well believe that, because obviously it is desirable that it should be there; but it is important to make it clear beyond peradventure. For that reason I move this Amendment, which I hope the noble and learned Viscount the Lord Chancellor will see his way to accept.
Page 1, line 6, after "which" insert "is of a kind likely to fall into the hands of children or young persons and".—(Earl Jowitt.)
§ THE LORD CHANCELLOR
I am happy to tell your Lordships that I am prepared to accept this Amendment. The noble and learned Earl has given the reasons for it most clearly. I think he would be the first to desire that I should say a word in defence of the draftsmen, for whose work I take the fullest responsibility. As I indicated in reply on Second Reading, we thought that the Amendment was not strictly necessary because of the reasoning of various of Her Majesty's judges in recent cases on obscene publications and the use of the words "into whose hands it may fall," which, as the noble and learned Earl informed your Lordships, are the very words of the Hicklin case. We thought that the question of whether or not publications were likely to fall into the hands of a particular class of persons was a relevant consideration covered by the Bill. The noble and learned Earl has told your Lordships that he has doubts on that matter. I could not agree more strongly that legislation going out from your Lordships' House should be free from these doubts. I think the noble and learned Earl's Amendment helps to make the Bill free from doubts, and therefore I accept the Amendment with pleasure.
§ On Question, Amendment agreed to.621
§ 4.3 p.m.
§ EARL JOWITT moved to leave out "wholly or mainly" and insert "largely." The noble and learned Earl said: I move this Amendment to guard against the possibility that a newspaper might start publication in this country and carry cartoons on the last page, like the New York Herald-Tribune does. May I say at once that all the cartoons in that paper are perfectly proper, as one would expect from a paper of that high standard and quality. But suppose that we had a very different type of paper, with a page of cartoons of an undesirable nature. I wonder whether the noble and learned Viscount the Lord Chancellor considers this Bill wide enough to deal with that mischief.
§ If there were such a publication, children would turn to the last page, not bothering about the other part, which probably they would not be able to read, and see the stories and pictures on the last page, which might have evil effects. I do not suppose that such a thing is likely to happen—perhaps that is why the words "wholly and mainly" are in the Bill. I will not press this Amendment if the noble and learned Viscount feels that he has the right words. I merely ask him whether he will consider the possibility I have mentioned, and whether he would not rather have a word like "largely" or "substantially," or some other word to that effect; because, if I am right in my understanding of this Bill, if the major part of the paper or magazine does not consist of these cartoons, then it is not hit by this Bill at all. It is an essential condition under the Bill that the book, magazine or newspaper must consist "wholly or mainly" of these stories in pictures. It is to elucidate that point that I move this Amendment, and I have no intention of asking your Lordships to divide on it if the noble and learned Viscount is content with the words already in the Bill.
Page 1, line 6, leave out ("wholly or mainly") and insert ("largely").— (Earl Jowitt.)
§ LORD TEVIOT
With great respect, I should like to take right out the words "wholly or mainly" and even "largely." No doubt I am very stupid about this, but I should like the words to be simply "which consists of stories told…" leaving out all qualifications. Surely the Bill would then cover the whole ground. I 622 may be wrong from a legal point of view, but it seems to me that if we put in no qualification, we cover everything.
§ EARL JOWITT
May I put to the noble Lord the simple example of bread and milk, which does not consist wholly of bread or wholly of milk, but is a pernicious mixture all the same. If we leave out the words "wholly or mainly," we would do exactly the opposite of what he wants.
§ LORD TEVIOT
But if we do not have milk or bread, then we have nothing, and that is what I want here.
§ THE LORD CHANCELLOR
I am always grateful for any suggestion, but my view is that if we adopted the suggestion of my noble friend Lord Teviot it would be exactly the same as leaving out "or mainly" and having "wholly" there alone; and that would mean that the whole publication would have to consist of matter which came within the prohibition of the Bill. Therefore, although I see the attraction of shortening the measure, I do not think it would meet the point which has been raised. The difficulty facing me here is that to adopt the suggestion of the noble and learned Earl would enlarge the scope of the Bill, irrespective of the point, against which he warned us, of rushing matters because of political circumstances, although enlarging the scope of the Bill would cause disturbance among Members of another place, which is a matter that we have to take into account.
I should like to reassure the noble and learned Earl, so far as I can. The Bill deals with the evil of "horror comics" of the type which your Lordships have seen. As a matter of mechanics, they are produced largely by way of matrices corning from the United States, either in metal form or in the form of microfilms. The metal form is rather larger than the Box in front of me and from this sixteen pictures are printed and two of these matrices are put together to produce the "horror comic" magazine or booklet. I do not dispute that it would be mechanically possible to put in some pages of printed reading matter with these, but it would appreciably reduce the ease with which these horrors (I agree with the noble and learned Earl that we can omit the word "comics," for any materiality it has) are produced. Apart from that, I think it would have a serious 623 effect upon the profits which the people who are promoting these horrors make out of them. The profits are not made like those of some other forms of undesirable literature; they are not made by sales of one rare book, or whatever it may be, to a particular person. They are made by large sales at a low price. And the profit is dependent on that.
On the actual practical problem, I think there is no need to fear—and I have made as complete inquiries as I can—that they will use that form of camouflage of the real intent. I go so far as to say this, and one cannot go further, as the noble and learned Earl indicated: that if the printed matter were entirely bogus, space-filling stuff, then I think the definition might well catch them. But it would be if the printed matter were genuine and an approximation to the same standard of taste, though perhaps of a slightly different form, that difficulty would arise. My first answer is that, having examined it carefully, I do not think that is a very practical difficulty. I agree that it leaves the possibility posed by the noble and learned Earl of, say, the newspaper that might add a "horror comic" strip; but taking into account the general run of newspapers, I do not think that is likely, and we can take the risk of dealing with that when the occasion arises.
On the other aspect of the matter, which I mentioned at the outset of my speech, namely, that this would enlarge the scope of the Bill, I have mentioned the practical difficulty in the form of the words I gave. I would also put this point 624 to the noble and learned Earl—and I think it is important, in view of what he said to us on the Second Reading: it would have the tendency, which he thought was undesirable, of leaving more in the hands of the Attorney-General. As he was good enough to mention, both he and I have been Attorney-General, and neither of us wants to see the holder of that office put into the position of a censor of morals. There are certain well-defined fields where he can act, and we do not want his duties, his responsibilities and difficulties extended. I hope that the noble and learned Earl will accept my assurance that, having looked at this matter as carefully as I can, and having had the best advice open to me on the practical problem, I think the Bill as it stands will meet the matter; and I know that he will take the other aspect of it into account.
§ EARL JOWITT
I am grateful to the Lord Chancellor for the full answer he has given me, and I will certainly withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1, as amended, agreed to.
§ Remaining clauses agreed to.
§ House resumed.