§ 5.39 p.m.
§ Order of the Day for the House to be put into Committee read.
§ LORD CONESFORD
My Lords, on behalf of my noble and learned friend Lord Birkett, I beg to move that the House do resolve itself into Committee on the said Bill.
§ Moved, That the House do resolve itself into Committee on the said Bill.—(Lord Conesford.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ Clause 1 [Test of obscenity]:
THE LORD CHANCELLOR moved, in subsection (3), to leave out "it or lets it on hire" and insert "lets on hire, gives,
or lends it". The noble and learned Viscount said: The Amendments which I am proposing to-day are those which I foreshadowed in my speech on the Second Reading of the Bill. I hope that it will be for the convenience of your Lordships if I refer to the second of these Amendments when moving the first. Subsection (3) of Clause 1 of the Bill provides a definition of "publishes" for the purposes of the Bill and it reads:
…a person publishes an articles who distributes, circulates, sells it or lets it on hire, or who offers it for sale or for letting on hire.
My Amendment at page 1, line 16, would make the subsection read:
…a person publishes an article who distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire.
The second Amendment in my name, at page 1, line 17, would add an additional sub-paragraph to make the definition cover also the showing, playing or projecting of "an article containing or embodying matter to be looked at or a record," with a proviso excluding anything done in the course of television or sound broadcasting, or in the course of a cinematograph exhibition, other than an exhibition in a private house to which the public are not admitted.
§ To understand the purpose of my Amendment it may be for the advantage of your Lordships if I outline briefly the history of the discussion on how far the Bill should go in covering the different forms of publication. In the Common Law of obscenity, as in other branches of the criminal and civil law, the word "publish" covers any method by which a person brings something to the attention of another. The Select Committee set up by the House of Commons included, as the last of its thirteen recommendations, one that the law relating to obscene publications should be consolidated, subject to the modifications proposed in their other recommendations. The implementation of this would mean that the Common Law on obscenity would be entirely superseded, and its whole field incorporated within the Bill. That is the course that we should have preferred, and we originally proposed that the Bill should use the word "publish" without any qualification whatever.
§ The promoters of the Bill were worried about the effect on certain forms of publication which, although theoretically 74 covered by the Common Law, have not in practice been the subject of prosecutions. In particular, they had in mind, first, the live performance of stage plays; secondly, the cinema; thirdly, television, and fourthly, broadcasting. They feared that whilst these forms of entertainment had not in the past been the subject of prosecution, the words in subsection (1) of Clause 1 might, by drawing attention to the possibility of bringing a prosecution against these activities, lead to action against them. As I have already said, the Government felt that these misgivings were ill-founded, but the promoters wished the definition of "publishes" to be limited, and therefore it appears in that form in subsection (3) of Clause 1.
§ As I said, in the view of the Government the definition has become too severely limited. There is no difference of view between the promoters and the Government that the Common Law should continue to apply to those forms of publication not covered by the Bill, and the Government are content that the forms to be left under the Common Law should be those which have in practice not been prosecuted in the past and which are most unlikely, so far as can be contemplated, to be prosecuted in the future. The live performance of stage plays, the cinema, television and broadcasting are all subject to their own forms of censorship, either by public authorities or internal controls, and prosecutions for obscenity against these forms of entertainment are unthinkable. The Government therefore see no reason why the desire of the promoters of the Bill, that these forms of publication should be left to what one might call the "limbo" of the Common Law, should not be met. That is why I have put into my Amendment that it does not cover the cinemas, which are subject to the Cinematograph Act, or television or broadcasting. There is no question of the Bill being used as an attack on stage plays, because the stage play is the oral presentation and not like the question of the book, which of course would be in a different field.
§ That is the position, but if the definition of "publishes" is left as it is there would be some forms of publication which have been the subject of prosecution in the past, and may have to be in the future, which would not come under the Bill and would have to be dealt with 75 under the Common Law. That would mean keeping the Common Law active in respect of some forms of publication closely connected with the forms of publication covered by the Bill, a course which would be confusing and undesirable. I instance one form and that is the obscene and filthy habit that we know goes on—there are always some prosecutions every year—when a dirty man gives or lends filthy pictures to small children. He does not do it to sell them. He does it to get a filthy excitement out of doing it, and to get a perverted pleasure. As I said earlier, as an ex-Home Secretary I am not prepared to do without the power to deal with that sort of case.
§ The difficulty we are in—I want your Lordships to see that we are not being unreasonable in the matter—is that if you could get hold of a dozen children to whom the man has shown the filthy picture then you might get him under "circulates", but if you could find only one child, or if you found he had given different pictures to two or three children, then you cannot get him under "circulates". That is why we want the words "gives" or "lends". If we had not those words, we should be in a position which would be a rather ridiculous one. If someone sold a filthy picture, he would be tried under this Bill when it becomes an Act. If he gave the filthy picture, unless we make this Amendment he would be tried in respect of the giving under the Common Law, and there would be confusion arising therefrom.
§ The other matter with which I am going to deal in a moment is with regard to records and film exhibitions in private houses. Before I come to that there is one other point with which I should like to deal. Apparently some people have had some fear that the inclusion of the words "gives, lends" would lead to the prosecution of a respectable person who, for example, lends a book—perhaps a rare book from a more robust age—from his library to a friend. Such action could in theory lead to a prosecution under the Common Law at the moment, but it does not. There is no complaint to the police in the circumstances; nor will there be if the change proposed by the Government is made. In fact, to bring such an action 76 under the Bill will give an additional defence because, of course, the test is no longer the Hicklin test, but the test under Clause 1. Clearly the book will not be likely to corrupt a friend to whom the man gives it. So I do not think that is any danger.
§ The other problem is the showing, playing or projecting of an article containing or embodying matter to be looked at, or a record. As the Bill stands, if a person sold—and here is the difficulty—a grossly obscene film, he would come under the Bill, whereas if he exhibited a grossly obscene film for the purpose of gain at a private house or the like, he would come under the Common Law. My noble and learned friend Lord Denning drew attention during the Second Reading debate to that form of filth. Of course, all your Lordships know that the showing of dirty films is a form of filth which goes on, and again it is something which I think the Bill ought to take up. Therefore, what I suggest taking out of the Bill is any film that is shown in a cinema under the Cinematograph Act, because there again there is the voluntary censorship and some degree of local control of what films are shown. I do not want to touch these films, but I do want to be able to catch the dirty man who shows a filthy film in a house or a place in a back street. That is really the matter with which I am dealing.
§ If the Bill were to be left as it stands, there would be the further anomaly that the procedure of Clause 3 would not be available for the seizure and destruction of an obscene film kept for exhibition, though it might if it were kept for sale, That seems to me an anomalous position. For those reasons I hope that the House will accept the Amendment. I do not think in a general way any of your Lordships, or my noble and learned friend Lord Birkett, could complain about my approach to the Bill on Second Reading, but I believe that these are real pieces of potential pornography. I beg to move.
Page 1, line 16, leave out ("it or lets it on hire") and insert ("lets on hire, gives or lends it").—(The Lord Chancellor.)
§ 5.52 p.m.
§ LORD AMWELL
I want to say just a word or two about the general question that is embodied in the several 77 Amendments referred to. I will not take up the time of the Committee for long, but I want to know how we stand in respect of Common Law or any other law with the kind of thing that I am about to describe. I think it was Lord Morley who said that of all cant the worst possible kind of cant is the cant of anti-cant. I think there is a great truth in that, and when one talks about subjects of this kind one is always open to the retort or the suggestion that there is a certain amount of puritanical cant involved in certain kinds of criticism. This is what I want to find out, if I may put it to the House and if I am in order.
I saw a picture at the end of last week, a picture which was last week all over north-west London and this week it is all over north-east London, a picture called Look Back in Anger. I am not objecting to the picture as such. I think it was "phoney"; I am getting a little tired of the kind of frustrated psychology which is quite unrealistic in respect of cinema performances; but that is a matter of taste. In the film there were two "gags" of a description that one cannot call just Rabelaisian, or words of that description; they were pure and unadulterated filth for the sake of it. When people say, "It will go over the heads of pure-minded people", it simply is not true; it was not intended to go over the heads of any people at all. It was not a double meaning joke or anything of that kind. I am not puritanical in matters of art or of literature, or anything of that kind. I can read Sterne's Sentimental Journey or the Decameron or even the Restoration playwrights without turning a hair. I have no objection to that kind of thing, and I have no objection even to the double entendre. There was plenty of it in the old Victorian music hall and it did not do very great harm because it was straightforward and robust. But the particular "gags" that I refer to were pure filth of the most unutterable description.
I should like to know just where we stand about things of that kind. Why for the sake of profits should these vast aggregations of finance impose that kind of thing as they please upon the community through this wide and important section of public entertainment? I do not want to criticise the cinema or the stage or anything else. It is the particular 78 case where there is no justification whatever, in wit or anything else, which is more and more being imposed upon the people simply for the purpose of making profits. I should like to know just how we stand in respect of Common Law in a matter of that kind.
§ 5.56 p.m.
§ LORD BIRKETT
Perhaps it would be for the convenience of your Lordships' House if I say now that I do not propose to offer any opposition to the Amendments moved by my noble and learned friend the Lord Chancellor; but perhaps I might, with your Lordships' permission, be allowed to say one or two words. I would make one observation in due course about the remarks made by the noble Lord, Lord Amwell, though my noble and learned friend the Lord Chancellor will no doubt make an authoritative reply on that point.
There are just one or two things that I think I ought to say to justify the course which I have just announced—namely, that we do not propose to oppose these Amendments. Your Lordships may recall that upon the Second Reading I said that I did not anticipate that there would be any difficulty about the Amendments which were to be proposed. By the kindness of my noble and learned friend, I knew then what their purport was. The reason that I asked for a little time to consider them was because I knew that this particular Amendment—both these Amendments—had been debated in another place; they had been the subject of very fierce criticism in another place, and the proposals had there, in another place, been defeated. I knew, as I know to-day, that there are many who feel that the extension of the definition which is proposed by this Amendment is making things a little too wide. I am conscious of it, and I am conscious of the weight of the argument which has been produced in another place, and may be produced here to-day.
What I think I should like to say is this: the suggestion that we should add the words "gives, or lends" obviously allows the introduction of hypothetical cases which might be cases of great hardship—the private owner with his library handing a book to a friend, and so on. My own view is that most of those fears are quite fanciful. As the noble and learned Viscount the Lord Chancellor 79 said, none of them has ever been brought in the courts to-day under Common Law, and I greatly doubt whether they would be brought in the future. But there are people, and many of them, who believe that while it is very important indeed to take steps to control the showing of dirty postcards to children by perverse adults for their own erotic pleasure, it is too high a price to pay to bring other people into jeopardy. There is the point. I feel, for my own part, that it is not important enough for me to say to-day that we propose resolutely to oppose it. Certainly upon the other point with regard to the showing of films the proviso makes quite clear that what I would call the legitimate film and play is in no danger whatsoever.
With regard to the point raised by the noble Lord, Lord Amwell, I would say that it is a difficult thing for the ordinary layman to understand that the Common Law and Statute Law can exist side by side, and one of the great arguments in another place against the particular Amendment which has now been proposed was that, in point of fact, the Common Law was quite adequate to deal with it. Your Lordships will appreciate, as the noble and learned Viscount has just said, that even if you had not this Bill the Common Law would still be powerful enough to deal with certain specific matters. The argument in another place was that the Common Law was quite sufficient to deal with the matter. The learned Solicitor-General, in dealing with that argument, said that it was important that, upon this particular matter of which they had knowledge, the police wanted further and more adequate powers, and that it was well that that should be included within the Bill.
I think the answer to the noble Lord, Lord Amwell, is that this Bill by this proviso does not touch the ordinary film. But I always understood that the film industry had its own censorship and that before any film was produced it had to pass rather a severe test. I was rather astonished and surprised to find that in the film entitled Look Back in Anger there should be passages that justified the very strong words which were used by the noble Lord, Lord Amwell. I am quite satisfied that every noble Lord in this 80 House would desire that, if there be such things, they should be stopped, and, for my own part, I think that the answer—although this Bill puts that kind of performance outside its scope and was intended to do so by the proviso—is that nevertheless the Law of England is yet powerful enough to deal with it.
I thought it right to say that, because I know that there are quite strong feelings in regard to these Amendments. But this being a compromise Bill, and the promoters of the Bill being anxious that the co-operation between Her Majesty's Government and themselves should not be broken, they do not feel, in the circumstances, that they should offer any opposition to the Amendments moved here to-day.
§ LORD AMWELL
Before the noble and learned Lord sits down, may I ask whether he means that it is left to anyone to make a complaint—that it is to be a kind of informer business?
§ LORD BIRKETT
That would have to be the course, unless the authority took the initiative and acted upon its own.
§ LORD BIRKETT
It is not for me to say, and I am quite sure that the Lord Chancellor will deal adequately with the noble Lord's point.
§ 6.4 p.m.
§ LORD SHACKLETON
I am extremely sorry that the Government should have seen fit to persist with an Amendment which was freely discussed in another place and which was thrown out on a free vote. I fully accept that the Lord Chancellor and many of those associated with him in this matter are anxious to leave the law in as tidy a state as possible. As a layman—I say this with humility and not with pride in these matters—I find much of the argument beyond my full comprehension. I fully appreciate that there are procedures in these matters which may determine the nature of the law, but, as I understand the Lord Chancellor, he is advocating the introduction into this Bill of powers which, to use his own words, he is not prepared to do without, and yet powers which I also understand in fact exist under the Common Law.
81 Before we pass this Amendment I think we ought to have an assurance that action in regard to the matters which are now brought within the scope of the Bill could not be taken as the law stands to-day. The argument that it is necessary to avoid confusion among magistrates by securing a comprehensive Statute with regard to obscenity seems to me to be not quite good enough a reason for reviewing aspects of our Common Law which, in certain respects, have become archaic. We have been told that there is no danger of a prosecution if somebody lends or gives a book which might be held, even under the new definition in this Bill, to be obscene. Yet one of the supporters of the Amendment, himself a magistrate, adduced in another place as an argument in support of this Amendment, that he did not see why it should be avoided merely to protect the ducal owners of ancient libraries. I do not know how many of your Lordships have in your libraries books of a kind which would put you in jeopardy from the law, but it is quite clear that if we revive this power in a more concrete form, where it is open for anyone to bring a prosecution, we are reviving precisely that type of interference which I am sure all your Lordships would wish should be as limited as possible. It is a field in which I hope most of us do not want to have the State intervening.
When we were debating recently a Bill concerning another matter, a certain Amendment with regard to prostitution was thrown out on most convincing arguments put forward by the Lord Chancellor that the Bill in question was not concerned with matters such as fornication, but was primarily concerned with prostitution. That argument must surely apply just as strongly to this type of matter. It is a field in which I should be sorry to see the State intervene.
§ THE LORD CHANCELLOR
Does the noble Lord really mean that he does not want people who give dirty books to small children to be prosecuted?
§ LORD SHACKLETON
The Lord Chancellor might allow me just to finish my argument. My answer is "Certainly I want them prosecuted." But will the Lord Chancellor then ask me as to whether or not there is not power already to do so, because I have recently, in the last week, been concerned with 82 such a prosecution, and I understand that there are anything up to about twelve prosecutions a year on this particular type of ground. If the Lord Chancellor will tell us that the Common Law is not adequate, and that in regard to people concerned in these particular cases, in the making and giving of filthy pictures to children—the type of examples which have been quoted so freely and upon which we all agree that the law must provide protection—the law does not provide protection, then I would certainly withdraw my opposition to this Amendment. I hope that we shall have a definite assurance on that point.
I am sorry that a Bill which has been the subject of a great deal of compromise, in which important concessions were made by the promoters of the Bill, which was not designed to be a comprehensive Bill, which was certainly not intended originally for the purpose of giving powers which up to that moment the Lord Chancellor presumably had been content to be without, should be used as a vehicle for one further extension; and I should like from the Lord Chancellor a clear statement that the Common Law is not adequate to deal with the particular examples of obscenity which he considers it necessary to cater for by this clause. We have been assured that there is no danger—for instance, the Lord Chancellor himself said—of a prosecution involving what in another place was called lending a book from a ducal library, but the noble and learned Viscount knows perfectly well that his assurance does not necessarily carry force in the courts; and I am sorry that at this late stage it should have been found necessary to introduce this particular provision again.
§ 6.10 p.m.
§ LORD DARWEN
I should like to follow my noble friend and support what he has said. I am a little worried about this—may I call it "doubling up" on the Common Law? I cannot quite understand why it is necessary to have these duplicate powers and I would put to the noble and learned Viscount two hypothetical cases to illustrate the kind of anxiety that I am in. First, suppose I am in the street with a friend and I happen to have a copy of D. H. Lawrence's Lady Chatterley's Lover, unexpurgated, and I pass this copy to my 83 friend. Am I in danger of prosecution (a) under the existing Common Law and (b) more so if this Amendment passes into law? Then again, even more disturbing is the thought that if this Amendment passes into law it would seem quite in order for a policeman to look through the curtains of a private house if he saw the flickering of a cinematograph and had any reason to suppose that pictures were being shown that might be of an obscene nature. I should be much helped if the noble and learned Viscount could reassure me on these points.
§ LORD CONESFORD
I found the argument of my noble and learned friend the Lord Chancellor for putting some such words as these into the clause convincing, because it would be a pity if one had duplication in this one limited field between the Common Law and the Statute directed to a specific purpose. But I am not without some sympathy for the point raised by the noble Lord, Lord Shackleton. I have been wondering whether some qualification of the words "gives or lends" would not be possible. I believe the Committee must be unanimous in wishing to hit—and, I think, to hit under this Statute—the case put by my noble and learned friend the Lord Chancellor, but is it really beyond our ingenuity to except from those words the case of somebody lending a book from his own library to a friend? I suppose I still have the Latin text of Martial in my library. I do not suppose it would ever be the subject of a prosecution but it would be rather absurd that it could be. I wonder if some such words as:Gives or lends without reasonable excuseor something of that kind would not give my noble and learned friend the Lord Chancellor what he wants without running the risk to which the noble Lord, Lord Shackleton, has drawn attention.
§ THE LORD CHANCELLOR
May I first express my gratitude to my noble and learned friend Lord Birkett for his indication that he would not oppose the Amendments. On the general position, may I say to the noble Lord, Lord Shackleton, without any feeling of controversy, that great approaches have been made on both sides in regard to this Bill. I am not going to contest with 84 him who has gone further, but we have tried to meet the double requirement: one the one hand, the fact that literature and art should not be shackled, and on the other that Her Majesty's Government are responsible for a minimum standard which they cannot allow to drop. That is the basis on which I have tried to approach the matter, and I should like to put my difficulty to the noble Lord, Lord Shackleton.
It is not that the Common Law does not cover the matter: I desired to make that clear, and if I failed it was my fault. What I believe is extremely undesirable is that, having a Bill of this kind, we should keep the Common Law active in respect of forms of publication closely connected with the forms of publication covered by the Bill. If I may take the example of the pictures, where a man distributes filthy pictures to children (and not only if he sells them, because he may not do that) and circulates them, the test is that contained in this Bill. He is dealt with under the Bill; and where the Bill operates, Common Law does not. That is the provision of the Bill, quite irrespective of this Amendment. But if, as in my case, the man gives, and we can prove only that he gives to one child, he would have to be dealt with under the Common Law, so that there might be the two things operating together. And that, I believe, would be very undesirable.
The noble Lord, Lord Shackleton, knows what months of thought we have all given to this definition under the Bill. If, after doing that, and doing the best that our collective goodwill and sense can enable, we are to have the Bill operating in one case and Common Law operating in the other—perhaps in successive cases in the same court—that will be an undesirable and confusing position. One must bear in mind, too, that although many of these cases will be in London, some will be dealt with by lay magistrates. That is really my difficulty and I feel that if we are to have this Bill we ought to have it covering these points.
The noble Lord, Lord Darwen, asked me about the position where he hands a copy of Lady Chatterley's Lover to his friend. I am not going into the question of the intrinsic position of that book but only into the comparative position, because that is really what he wanted to 85 know. Even under my Amendment, if he lends the book to his friend the chance of anyone being able to prove that it tended to deprave or corrupt his friend is extremely small—I am not making any reflection on the noble Lord's friends, but I am envisaging the circle to whom the noble Lord would be likely to give or lend the book. And that is quite apart from the point I made earlier, that it is not a matter which so far has given rise to any trouble.
In regard to the noble Lord's second point, it is, of course, theoretically possible, but again I feel that one has to trust to a certain amount of common sense on the part of the police. I do not know whether the noble Lord, like myself, has had occasion to do cinema shows for children's parties, but I do not see that being the kind of thing that is likely to be troublesome. The other is, unfortunately, a form of perversion and filth which has gone on since films have gone on. It is an unfortunate reflection on human nature that it should happen, but it does; and I should have thought that, apart from all the other matters I have mentioned, apart from the fact that we have re-drawn the definition, there is not a great deal of danger on that side.
My noble friend Lord Conesford has made an interesting suggestion; but may I snake one final suggestion? We all have tried very hard on this matter to reach agreement. I have taken my part in considering it. I tried in my speech on Second Reading to be as conciliatory as I could and as objective as I could. I think that it would be a very good thing if we could now say, "Well, we have discussed very fully our different points of view. We would put a different emphasis on certain matters, but at the end of the day, with our collective wisdom, we have got something on which we are prepared to agree, which we are certain is an improvement in the law." We have got rid of a definition which has worried us all for a long time; we have produced a sphere for expert evidence which the authors desired. I think it would be a very good thing if we could say, "Well, this is a great advance and we accept it as agreed matter." I am not asking the noble Lord to say anything now, but I just put it before him as something which might be very 86 desirable for those like himself and myself who, with a different emphasis, have an intense desire to be reasonable in the matter.
§ On Question, Amendment agreed to.
§ Amendment moved—
Page 1, line 17, at end insert ("or
(b) in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it:
Provided that paragraph (b) of this subsection shall not apply to anything done in the course of a cinematograph exhibition (within the meaning of the Cinematograph Act, 1952), other than one excluded from the Cinematograph Act, 1909 by subsection (4) of section seven of that Act (which relates to exhibitions in private houses to which the public are not admitted), or to anything done in the course of television or sound broadcasting.").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 1, as amended, agreed to.
§ Clause 2 [Prohibition of publication of obscene matter]:
§ THE LORD CHANCELLOR
This is a purely technical Amendment. There is no great field of difference between those who hold different views. I do not think I need trouble your Lordships with discussion at length, and I beg to move.
Page 2, line 12, leave out ("No prosecution shall be brought") and insert ("A person publishing an article shall not be proceeded against").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
Page 2, line 14, leave out ("an") and insert ("the").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 2, as amended, agreed to.
§ Remaining clauses agreed to.
§ House resumed.