§ 4.3 p.m.
§ Debate on Second Reading resumed.
§ LORD DERWENT
My Lords, may I thank the noble Lord, Lord Shackleton, for saying that I was speaking a bit too quickly? He did not use quite such curt words, but he is right. I knew that the House wanted to hear the Statement that has just been made. If I may go back to what I was saying, there was some discussion in another place during the course of this Bill about the possibility that the verdict of a jury should be obtained on any book for which literary or other important qualities are claimed. A number of proposals designed to meet this point were put forward, but all proved to be unacceptable. I would say that it would be wrong and contrary to all legal principle to require a prosecuting authority to launch a prosecution, with its attendant right of trial by jury, rather than to proceed by way fo forfeiture proceedings. The prosecuting authority must retain their discretion to use whatever procedure is more suitable in the circumstances of the case.
Another proposal, under which forfeiture proceedings might be referred to a jury on request, was also found unsuitable, but for different reasons. Forfeiture proceedings are what lawyers call in rem—that is, not against the person but against the material, in this case, against the obscene matter itself, and no person is at risk and liable to a criminal penalty. A proposal of this kind, that there should be an ultimate right to go before a jury, would lend itself to abuse by unscrupulous traffickers in pornography and might well result in the courts being overwhelmed with frivolous claims for jury trial. May I remind your Lordships that some of this 568 stuff (perhaps a suitable word for it) comes in ton weight, and if a case has to be heard before a jury, it all has to be read by every member of the jury?
I was in process of saying, when we were interrupted, that any doubts that may remain in the minds of those concerned for literature about the intention of the authorities will have been dispelled, I hope, by the statement made by my right honourable and learned friend the Solicitor-General in another place, about the practice that will be followed by the Director of Public Prosecutions in enforcing the new law. The statement was to the effect that it will normally be the policy of the prosecutor, in circumstances where a publisher commits a deliberate breach of the law or a breach of the law that is accompanied by determination to persist in it, to bring a criminal prosecution against him, which of course carries a right to jury trial, if he wants it, rather than proceedings for forfeiture.
If I may explain that simply—and I do not want to be tied down to the words—if a publisher does not approve of forfeiture proceedings and thinks that his case ought to go before a jury, and if in the course of inquiries it is found that in spite of the forfeiture proceedings he intends to go on publishing, he will have committed a criminal offence, in which case the matter will be sent for trial by jury. I thought it right to mention these matters to your Lordships, although, as I have explained, this Bill is not directed at works with even pretensions to literary merit, but rather at the sheer pornographic filth with which this country has been increasingly flooded in recent years. The Bill leaves undisturbed the arrangements approved by Parliament in 1959 for the protection of serious literary works, and does not substantially alter the principles embodied in the 1959 legislation, which were adopted after a thorough examination of the whole subject.
§ LORD MORRISON OF LAMBETH
My Lords, I gather, but I am not sure, that the case which the noble Lord has cited as one which would go to a jury would not be a case on the merits of the publication itself but of some defiance of the court?
§ LORD DERWENT
My Lords, I would not call it that. But if there are proceedings before the court, and it is discovered 569 that the man in charge of the book intends to persist in publishing this material, then there will be a criminal prosecution.
§ LORD SHACKLETON
My Lords, it would be helpful to clarify this point. Then presuambly all the provisions of the 1959 Act will apply and the defences that are open under that Act will also be available? I think that this is the point which my noble friend is not clear on.
§ LORD DERWENT
My Lords, I think that I said that earlier, but that in fact is the case. I believe that the Government's objective in seeking to impose additional curbs on pornography commands widespread support in the country, and I hope that I have succeeded in persuading your Lordships that this further Bill is both necessary and desirable. I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(Lord Derwent.)
§ 4.9 p.m.
§ LORD MORRISON OF LAMBETH
My Lords, I think it is right that I should make it clear that we do not regard this measure and the related proposals as Party political in character. Therefore, all of us who speak in this debate from this side of the House will be speaking for ourselves. For myself, I welcome the introduction of this Bill. I recognise that the subject with which it deals is of great difficulty. It is one in which one has to strike a balance between the freedom of the Press, if I may so call it, and those objectionable, anti-social and injurious writings which may be bad for the community or for important sections of the community, either young people or older people. I sympathise with any Government who have to deal with legislation on this matter, but I am glad the Bill is a Government Bill. I considered that the 1959 Act was wrong in certain respects; and it was wrong in that it was a Private Member's Bill. I do not think it is to the credit of Mr. Butler, who in many ways was an excellent Home Secretary, that he let that Bill go as a Private Member's Bill, instead of taking the view that it should not pass because the matter should be dealt with by Government legislation.
The Bill was introduced by my honourable friend Mr. Roy Jenkins, I think on behalf of the Society of Authors; and that in itself is doubtful wisdom, because 570 there are not only authors to be considered: there are readers and the general standards of the public and the nation to be considered, as well as the reputation and morals of the nation. Therefore I think Mr. Butler was at fault in letting that Bill proceed as a Private Member's Bill. Legislation of this important, difficult and responsible character should not have been enacted by a Private Member's Bill, but by a Government measure. However, it passed through another place, and it passed through this House, and, consequently, the Government have had to deal with it—it was their fault—as they have found it on the Statute Book.
Since then there have been two outstanding cases to which I think it is right I should refer, and, indeed, I wish the Minister of State had referred to them also, in view of their importance. The first one was Lady Chatterley's Lover and the second Fanny Hill. I have read both as part of my Parliamentary duty—and I do not expect to be misunderstood. I bought Lady Chatterley's Lover in extensor in France; and Fanny Hill I borrowed from the Library of the faithful Commons, where they had a number of copies in order to help honourable Members in coming to their own view about the book. I think the Library of the House of Commons was right in placing the book at their disposal.
They are two different kinds of book. Lady Chatterley's Lover is, at any rate, a story of the relations between a woman and her crippled husband, on the one hand, and her game-keeper, on the other. There is plenty of sex in it, and plenty of four letter words. Fanny Hill has little story. It is an intimate physical description of a series of sexual experiences through which this lady, a "woman of pleasure", as she is called in the book, went; a description of homosexual practices, a whipping by a man of Fanny Hill and a whipping by Fanny Hill of the man. It is that kind of thing from beginning to end. So Lady Chatterley's Lover had some sort of story in it; Fanny Hill had not, but was a record of incidents, one after the other, and of type after type.
Let me deal first with Lady Chatterley's Lover, It was written by D. H. Lawrence, a writer of considerable artistic ability—that must be said straight away. Nevertheless, there was a good deal of description of sexual incident in it, and a whole chunk of four letter words. It has been 571 published in a cheap edition, available to the whole community, irrespective of age. I must say that, on balance, I should take the view that it is a book that ought to be suppressed. I do not think its artistic merit is such—though it is not negligible—that it outweighs the writing and the subject with which it deals.
Here let me deal with the point of the jury. I understand that there are other points of view about this question and, indeed, about the whole business. I can assure your Lordships that I am not unduly narrow or tyrannically puritanical, but I am concerned with the social effects and about the good name of our country with visitors from abroad and in the world as a whole. Lady Chatterley's Lover went to a jury. The jury were told: "You must not isolate"—what I will call, but the court did not—"the naughty parts of the book. You must read the book as a whole, and judge it as a whole, on its literary qualities and virtues or otherwise, taking into account the naughty parts." So the jury, which, so far as we know, like other British juries consisted of average men and women, sojourned to the High Court and the argument proceeded.
The defence produced a whole string of witnesses who testified to the extraordinarily high literary beauty of the book, its high standing, its worth and so on. These literary gentlemen, drawn from universities and partly from literary critics, gave their views at length and were examined upon them: I forget whether they were cross-examined, but they were certainly examined on their views. Then, lo and behold!, at the tail end of the witnesses up came the Bishop of Woolwich. And, of course, a Bishop is a first-class witness and of great value on a hook of this sort. If he says that the book is in accordance with Christianity and high literary skill, then that is bound to have an effect on the jury.
I must say that I have extraordinary sympathy with the jury that had to decide this case. I do not think it is a fair issue to put to a jury, especially when they are told they must judge it on its literary merits, as a whole, after taking into account what I have called the naughty parts of the book. I think 572 that jury, faced with this succession of witnesses, and terminating with a Bishop of the Church of England, were put in a most difficult position to make up their minds what to do about it. Even so, if I had been on the jury I should have voted in favour of the prosecution's case. But the jury came to the conclusion that the book was permissible.
The extraordinary thing was that the prosecution—not that they could not, because they could—called no witnesses. Subject to correction, I am inclined to think that the prosecution were rather foolish in not calling witnesses. They might have called another Bishop, or even two Bishops, which might have countervailed against the Bishop of Woolwich. Because evidently Bishops' opinions on these matters, and even on Christianity itself, vary somewhat from Bishop to Bishop. I cannot make out why the prosecution did not call any witnesses. They may have thought it was no good; but, at any rate, they did not do so. The jury dismissed the prosecution's case, and the defence won. I am not going to make a song and dance about that, or feel any personal grievance about it. That was the judgment of the court, and the judgment of the court has to be accepted.
Fanny Hill has not gone to a jury. I am not going to complain that it did not go to a jury. I do not think a jury is necessarily the best tribunal. Mind you, I do not mind leaving the door open for the possibility of a case going to a jury. But I think to make a grievance of its not going to a jury is again a piece of interesting self-pleading on the part of the Society of Authors and those who agree with them. They won with a jury with Lady Chatterley's Lover: therefore, it is perfectly natural that they should like juries. They did not win with a magistrate on the Fanny Hill case; therefore, it is understandable that they should not like magistrates. Parliament has a duty to listen to vested interests, but Parliament is entitled to take them with a little grain of salt, and to weigh them up and see whether on balance they are right or wrong. I think this desire to go to a jury in every case is a bit of special pleading. In the case of Lady Chatterley's Lover, I believe it was not a fair burden to put upon a jury, especially in view of the instructions that 573 they were given, not by one side but, to the best of my recollection, by both sides in the case.
There may be obscene or, at any rate, very objectionable literature which has not necessarily anything to do with sex. I refer to brutally sadistic literature. I can give an example from my own experience when I was Home Secretary—on which I am doing a bit of interpretation myself, and on which I may be right or wrong, but I think I am right. During the war, there were one or two brutal, nasty, sadistic books, with practically no sex in them whatever. They wrote of brutality to women, and particularly to prostitutes. Now prostitutes are unlawful in the, old sense of the term, but they are human beings, and brutality is brutality, whether it is to a prostitute or to any other woman. These books—to the best of my recollection there were two of them—were exceedingly sadistic, in which the sadist was getting pleasure out of horrible, revolting, cruelty to women. Round about that time there were two, or perhaps three, murders by young soldiers of prostitutes, which had no trace of sex in them. These women were taken to a bombed-out hole, or something like that, or they were found there, and they had been murdered in the most brutal and horrible manner. This is speculation, but I think it is not an unreasonable speculation. I have a feeling that those young soldiers may well have been influenced by those sadistic books; and that kind of literature deserves to be suppressed as well.
The Bill rightly deals with photographic negatives and pictures, in which trade has been done on an extensive scale and considerable money made by a very nasty man or nasty men. I think one man has defended himself on television. Television is remarkable about people defending themselves, but perhaps it is part of its "newsy" business. These pictures are bad; they are intimate, and they are the kind of pictures that ought not to be bought and sold in this manner. Negatives can be bought and sold as well. I think the Bill is entitled to deal with this kind of trade which is being done by unpleasant persons, who are no credit to our country or, indeed, to the world. Therefore I am inclined to give this Bill support. I think it is right. It may be that 574 it will not be the last of this legislation, because it is a tricky and controversial subject, and I wish it had been Government legislation all the way through. However, here it is, and whilst I do not want unduly to interfere with the freedom of writing, or the freedom of the Press, or of publications—I am too liberal-minded for that—I think there are limits. It is right that the limits should be set out by law, and that they should also be imposed after investigation and argument by the proper course of law. I therefore support the Second Reading of the Bill.
§ 4.25 p.m.
THE LORD BISHOP OF NEWCASTLE
My Lords, I believe there is general agreement among those most intimately concerned with the guidance of our children and younger people that an effective check upon the flow of pernicious publications to the shops and bookstands, and even market stalls, is a necessary check. No one imagines that we can do more than "keep the ring". If, then, the powers conferred by the 1959 Act have been approved in their intention, but proved deficient, they must be improved in operation. I hope that the present Bill will serve that purpose and I hope that the scrutiny to which it has been subjected will help to ensure that no undeserved hardship will ever be imposed through it.
Assuming, therefore, a general agreement, it seems to me very necessary that anyone speaking as I do to-day should be unusually brief, for your Lordships' load of work is a heavy one. But there are two observations I would beg leave to detain your Lordships with. It has been asserted that no evidence is available to support the view that the stuff with which we are particularly concerned does any harm. I first learnt of the dumping of excess American so called magazines and books when, about three years ago, a group of teachers asked my advice as to how they could combat what they regarded as the direct results of the circulation of these things. May I, in parenthesis, say that my counsel will not be given here, for it is irrelevant, but that it was for obvious reasons not altogether either comfortable to the teachers or complimentary. Those teachers and many others would certainly testify from their own 575 experience to the direct and immediate harmfulness of these unpleasant productions among quite normal but undiscerning children.
The doubt to which I have referred would, I think, further sadden a mother whose letter I heard of only to-day, which is in the hands of the London Committee. She describes the condition of a son of hers of seventeen years of age. It is now known that at the age of twelve he discovered, quite by accident, in a small sweetshop near the school he was attending, some of this literature with which we are mainly concerned this afternoon. As a result, in the intervening period an obsessional habit of going after this stuff, of concealing it, and of finding money to spend on it, has grown and grown, to the immense detriment of the boy's school work and exams, leading to almost a breakdown in his own happiness, and to the production of considerable deceitfulness, and so on. I need not bore your Lordships with more of that. But this is not a unique and rare case, where a normal person is deeply and profoundly upset by being caught in some way by this pernicious stuff. If pressure was brought to bear upon the owner of the little sweet shop to take and display trash as a condition of the continuance of other supplies, then this story is all the worse, and more of a rebuke to all of us. It is a serious matter of real concern if, in a responsible industry, there is no self-imposed limit to what can decently be done, when what is done may well harm the defenceless members of society.
It is not, however, my Lords, the direct or short-term effects with which we are most of all concerned. I think I speak for many people who, like myself, dislike censorious attitudes and censorious actions, and, indeed, are fully aware that it is impossible to make people discriminating and clean-minded by Act of Parliament, yet support the intention of this measure. There are two features of our common life of which we can hardly be proud. One is the deliberate exploitation of the young and immature by commercial interests. This, of course, is a very wide field. The more direct and short-term bad effects of, let us say, unscrupulous advertising are very soon put right, 576 thank God! Increasing experience and knowledge of the economic facts of life see to that; and here I think the great majority of our young people come out of these particular dangers quite splendidly. They certainly survive.
With the long-term effects of these things, in establishing a pattern of thought and a conception of what constitutes the good life, it is different. It is the unargued assumptions that appear to be made in the social environment in which we grow up that do much to determine the equipment of mental and moral assumptions with which we embark on the responsible life—the more so when the influence of home, school, or both, in encouraging a discriminating judgment is weak or entirely absent. The assumption that a society tolerates, and even approves, a view of life and of the human personality suggested by much of the stuff on sale as reading matter—and, indeed, sometimes provided for popular entertainment elsewhere—is easy to make and is being made.
The second characteristic of our life to which I would draw attention is the tendency we have shown to off-shoulder responsibility for moral judgment on to the backs of those not yet qualified and able to bear it. My own personal admiration for most of the youngsters I know—and I meet a large number—is very great indeed. I believe that, given half a chance, they reveal a very fine aptitude for discrimination and for setting moral standards for themselves. I am, nevertheless, convinced that we are often expecting more of them than we ought and thereby doing them a grave injustice. Herein lies the significance of the mild rebellion—a rebellion that is typical of young men and women, possibly a rebellion against those of us who are older—which has shown itself in all parts of this country. I mean the many study and action groups that have emerged by spontaneous combustion, whose work led to the formation of the London Committee; whose work, in turn, has something to do with the Bill now before us. Like the London Committee, the groups illustrate that denominations can work together, for the London Committee itself is representative of all the larger denominations, including the Jewish Church.
§ LORD MORRISON OF LAMBETH
My Lords, would the right reverend Prelate forgive me for interrupting? He may have explained what the London Committee was and what it does; but, if so, I missed it and should be much obliged if he would tell us.
THE LORD BISHOP OF NEWCASTLE
The London Committee is a very recent voluntarily-formed body. I think that the full title—a horrid title, I admit—is the London Committee on Obscenity. I believe that the word "obscenity" comes into the title. As I said, it is of very recent formation and is largely due to the agitation and public opinion roused by the young people's groups that have sprung up almost spontaneously in different parts of the country.
The work of these groups is a timely protest, I maintain, against, perhaps, our complacence and inaction, and against the marked tendency in our society to throw upon those not yet equipped by age, training, experience, or maturity the responsibility for discrimination and sound-value judgments. If through obtuseness, idleness or laissez-faire we assume the freedom and ability of the immature to discriminate, and to come to sound moral judgments in face of the sudden hazards and demands of the adult, and too often pernicious, situations of the actual world we live in, we do a great injustice; and if we do injustice we do harm.
My Lords, I think the case for this Bill, the technicalities of which have been thoroughly threshed out, rests upon our corporate responsibility to the defenceless. The strong and the discriminating can and should be expected to look after themselves; the weak cannot. We work for the day when the importation or production of this kind of stuff will not be worth anyone's while. Meanwhile, emergency means are called for. If I may end by a reference to a particular concern which has been expressed in the course of debates on this Bill, I would say this. It must often be the lot of legislators that in making the best of a bad job they may have to risk putting some people to inconvenience, and even to material loss. But if a choice must be made, whether the strong or the weak be put in jeopardy, I, for one, am certain what our answer ought to be.
§ LORD MORRISON OF LAMBETH
Before the right reverend Prelate sits down may I apologise to him and to the House? I had not noticed that the right reverend Prelate's speech was a maiden speech, or I should not have intervened. But he has made such a good speech that it might well have come from an old hand.
§ 4.39 p.m.
§ LORD ILFORD
My Lords, it falls to me this afternoon to offer to the right reverend Prelate who has just concluded his speech the congratulations and felicitations of your Lordships' House on his first intervention in our debates. I hope I may not seem presumptuous if I express to the right reverend Prelate my own congratulations on what I am sure every one of your Lordships felt to be a notable contribution to a difficult and, in some ways, highly controversial topic, and to express to the right reverend Prelate the hopes of us all that he may often assist your Lordships' House in its deliberations.
My Lords, this is not an easy Bill to understand and I am sure that your Lordships are grateful to my noble friend for the very clear manner in which he endeavoured to deal with its provisions.
May I say, before I come to the Bill itself, how very glad I was that the noble Lord, Lord Morrison of Lambeth, was able to welcome the introduction of this Bill. The noble Lord brought to this subject all that fund of common sense which is always characteristic of his utterances. There was one observation the noble Lord made upon which I desire to make some comment. The noble Lord has read both the two books which have acquired notoriety in recent years. I observe he was able to obtain them from the Library of another place——
§ LORD ILFORD
—one of them: from which I assume they were not available in your Lordships' Library. That may or may not be a good thing. The noble Lord, Lord Morrison of Lambeth, drew attention to the fact that at the hearing of the Lady Chatterley's Lover case, if I may call it that, evidence was called 579 from persons who, I suppose, come within the comprehensive description of experts, and who came to testify that, in their view, the book could circulate among a certain limited class of person without causing harm. The relevance of evidence of that sort at one of these trials was really introduced and depends upon a provision in the Act of 1959. I myself have never been convinced that it was a wise thing to introduce into these trials evidence of that nature.
I do not desire to cast any aspersion at all upon any person who attended as a witness and gave evidence in that case. They are, I know, persons of some distinction in their own walk of life, and I desire to say in what I am going to say now that I hold them in respect. But is it a desirable thing before a jury that there should be a sort of competition in the calling of evidence of this sort? The noble Lord referred to the fact that a Bishop of the Anglican Church gave evidence that in his view the book in question was a work of artistic achievement. Is there at these trials to be a sort of competition between the witnesses that one side calls and the witnesses that another side calls? Supposing that my opponent calls a Bishop and I can only call an Archdeacon, are we to say at the end of the case, "Well, the jury ought to decide in favour of the side which called the Bishop, and ought to dismiss the evidence of the Archdeacon as an inadequate person"?
I do not raise this matter with the intention of scoffing at it, but it is, I think, a real difficulty, and if evidence of that sort is to be admitted in trials of this kind I believe it will be found that it ends in a sort of competition between the two sides as to which of them can call the most authoritative expert on matters of this nature. I have always thought it was very doubtful whether that was a wise provision, and I think so still. Whether I shall be tempted to go so far as to put down an Amendment to this Bill I should not like to forecast at this stage. I think the probability is that I shall leave matters as they are. But it is, I think, in the trial of these cases a real question whether evidence of this sort ought to be admitted or whether we ought not to leave it to the ordinary common sense of the jury unaided.
580 I said a moment ago that this was not an easy Bill to understand. As I understand what has happened since the Act of 1959 was passed, there are three defects which have appeared. It has been held that photographic negatives cannot be forfeited under Section 3 of the Act of 1959 because it was not intended that the negatives themselves should be published. The intention, of course, was that prints should be taken from them. Obviously, that is a defect in the 1959 Act that ought to be put right. It really would be ridiculous if a person were allowed to retain a pornographic negative for the purpose of reproducing from it pornographic prints and the police had no power to take the negative but only the prints. I apprehend that your Lordships would not have much difficulty in accepting that amendment of the law.
The next matter upon which it has been found that the law was defective relates to the exposure for sale of obscene articles. As I understand it, it has been held in the courts that the mere exposure for sale of a priced, obscene article, is not within the terms of Section 2(1), which deals with publication. It is not a publication for the purposes of the Act of 1959. There, again, I think your Lordships will have little difficulty in saying if that is the way in which the Act has been construed in the courts it ought now to be put right, and the exposure for sale in this way of a priced article should be deemed to be a publication.
I come now to the third change which the Bill proposes to make. The difficulty that has arisen here, as I see it, is really a difficulty of proof. This Bill proposes to make no change in the real nature or character of the offence. What has happened has been this: the police must, of course, prove, under the law as it stands, publication of the obscene article. It is not easy to obtain evidence of publication in these cases, and accordingly these cases have normally been brought upon the testimony of a police constable who is called to prove publication to him. Of course, a police constable is not a person who is likely to be depraved or corrupted by the purchase of an obscene article, and accordingly the courts have held that proof of publication to a person of that sort, who is, as I say, not likely to be corrupted or 581 depraved because of his maturity and official position, is not a sufficient publication under the Act to warrant a conviction. It is that situation which the Act, as I understand it, intends to put right; and it is on this point that this Bill has aroused a certain amount of criticism.
The criticism which is made of the Act is this. It is said that this Bill is creating a new offence and that we ought to be circumspect in our approach to the creation of a new criminal offence. In my view, the Bill really creates no new offence at all; what it does is to alter the conditions of publication. It will be an offence under the Bill not only to publish an obscene article, but to have in one's possession an obscene article. That, of course, is a change in the law, although I look upon it as no more than a procedural change. When one looks at the extent to which this change is made, it really is a most modest change because the possession of the obscene article by the individual charged must, in the first place, be a possession for publication for gain, either gain by himself or gain by another person. That, of course, restricts the nature of the offence.
This Bill will not make it an offence merely to have in one's possession an obscene article; it has got to be in one's possession for the purpose of publication and for the purpose of gain. I would have thought that that was a relatively modest change, and if it is necessary to make this change in the existing law in order to make the Act of 1959 effective, I would have thought that your Lordships might accept the position that this Bill creates, if it does, a new offence, and to accept it in order to ensure that the real evils behind this legislation are overcome. I do not intend to dwell upon them because the right reverend Prelate who preceded me has dealt with them with much greater force than I could hope to do. I would hope that your Lordships, faced with this difficulty which has appeared in the administration of the Act of 1959, would readily accept this Bill, and make it possible for the Act of 1959 to be carried out in the manner in which Parliament intended that it should be carried out.
§ 4.54 p.m.
§ THE EARL OF IDDESLEIGH
My Lords, I am most happy to join the noble Lord, Lord Ilford, in the congratulations that he offered to the right reverend Prelate on a maiden speech of great distinction. The right reverend Prelate spoke clearly, interestingly, and from the depths of his pastoral experience. He spoke with a force and conviction that are proper to the subject which we are discussing, and I greatly hope that the right reverend Prelate will not find the distance of his See from Westminster an impediment to frequent further interventions in our debates. I was particularly interested in the point that the right reverend Prelate made about the sweetshop which, as I understood him, had been compelled to take a supply of pornographic literature in order to obtain the goods which they were legitimately selling. Perhaps the noble Lord, Lord Derwent, will be able to deal with that question when he comes to reply. I should imagine that any such arrangement would be entirely illegal.
As regards the noble Lord, Lord Ilford, I hope that on consideration he will not try to offer any Amendment, however good, to this Bill. In view of the short time remaining before the Dissolution of this Parliament, any Amendment would have an effect which the noble Lord certainly would not desire, although I feel that there was much to be said for the point which he made about evidence. But let him leave it, I beg, to another occasion.
I am most grateful to Her Majesty's Government for closing two loopholes in the existing law which were not anticipated when we discussed the 1959 Act. I hope—it is a rather tenuous hope—that the ingenuity of defence counsel will not discover many more loopholes; but that can be only a matter of speculation I am not at all satisfied that this law, quite apart from the question of further loopholes, will effect the large changes that we desire. We must remember that exceedingly powerful interests are against us. I believe that we are experiencing the back-lash of a situation which exists in the United States of America. In that country there are, and have been for many years, a number of pornographic publishers. Of recent times those publishers have rather overplayed their hand. Not only have they published pamphlets of 583 most esoteric and unusual forms of life—and I will follow St. Paul and say that there are things that should not even be named among us—but some of them have also engaged in a campaign to induce the youth of America to take drugs.
An American with whom I am in contact described to me one strip cartoon disseminated in America, showing a little boy of eight giving himself a hypodermic injection, and the caption was, "I sure must tell Mom and Pop what a lift this stuff gives us." This kind of thing aroused a quite natural resentment on the part of decent Americans, and they fought a vigorous purity campaign. As the result of that campaign, which resulted in new legislation, and in the tightening up of legislation, the home market on which the American pornographic publishers largely relied has been much restricted and, following a phrase with which we are familiar in this country, they no doubt said, "We must export or die." Consequently, Her Majesty's Customs have been overwhelmed with this flood of material. I am certain that the Customs have done their best to stop what they can—I find no fault with them. But they have been overwhelmed by an unprecedented amount of filth coming into their hands, and a certain amount of it has slipped through. There is, after all, a great deal of money involved in this disgusting business.
Before I sit down I want to pay tribute, as has already been paid by the right reverend Prelate, to the boys and girls, the young people who initiated the campaign which has resulted in this Bill. It is not often that an Act of Parliament begins in the classroom, but it is a very good precedent indeed. I also pay tribute to the teachers who took up the protest a little later than their pupils.
I want to ask Her Majesty's Government two questions. There is an international convention, dating, I believe, from 1934, on the subject of the international trade in pornography. Can anything be done—this perhaps is a question for the Foreign Office rather than for the Home Office—to make that convention more effective? Have the new States which have come into existence since 1934 signed that convention? Can our representatives at the United Nations, or through any of the organs of the United Nations, do anything to make that con- 584 vention more effective? I have not given notice of these questions and I shall not expect an "off the cuff" reply from the noble Lord; I merely ask that they should be considered. The other point is that, while I appreciate the great difficulty of catching the wholesale dealer in the stuff, I beg that every effort may be made to detect these people and to bring them to justice.
§ 5.2 p.m.
§ LORD FRANCIS-WILLIAMS
My Lords, I must at the beginning declare an interest. I confess that I am—and I hope my noble friend Lord Morrison of Lambeth will not walk along the other side of the road when next he meets me—an author.
§ LORD FRANCIS-WILLIAMS
It is true that although I have written a number of books, some sixteen in all, I think I can claim to have no personal, and certainly no financial, interest in the subject of the Bill. My books have been banned at various times in various countries—in Germany and Italy before the war, and in various Communist countries since; but, so far as I am aware, nobody has ever brought any charge of obscenity against them, and at my age I do not intend to change my ways. But in addition to being an author, I am also, as some of your Lordships may know, a member of the Council of the Society of Authors and Chairman of its Management Committee. One of these days we must ask my noble friend Lord Morrison of Lambeth down to one of our orgies in Drayton Gardens!
This Bill has been introduced to remedy a previous Act in which the Society of Authors had a substantial initial part to play, in that it emerged as a result of a joint committee of authors, publishers and others which, under Sir Alan Herbert, later put forward a Private Member's Bill in another place. The Bill went before two Select Committees, and was eventually taken over, with various amendments, by the Government. I would not for one moment pretend that there is not a case for saying that there have been certain loopholes in the Act which ought to have been stopped up, and I am entirely in favour of Government action in trying to stop them up. But what I am concerned with 585 is that there have been, so to speak, loopholes on both sides. My concern is not only with the loopholes which the Government intend to stop up but with the loopholes which they do not intend to stop up.
Several mentions have been made so far about the Fanny Hill case. I have not the advantage of my noble friend Lord Morrison of Lambeth (or, indeed, I sometimes judge, from conversations, of most of the literary members of this country) in that I have not in fact read Fanny Hill. I have no doubt that if I had wished to do so I could have done so, but it so happened that I had other things to do and it never particularly interested me enough. But the real point is not whether I approve of Fanny Hill, whether Lord Morrison of Lambeth approves of Fanny Hill or whether any other Member of your Lordships' House approves of Fanny Hill. Surely the issue is that, where there exists a book for which reputable people of literary training and skill, and acknowledged critical judgment, consider a case can be put forward—not that the book should automatically be made free to be published—then at least those issues should be put before a jury which has the help and guidance of a judge.
For surely all literature, all such books as these, must be judged against the general climate of the times in which publication and distribution are taking place. There is a long history of books of all kinds which have been condemned in their day but are now accepted by people of all kinds as part of the treasury of the world's literature. One could go on reciting the names indefinitely. Even the Sonnets of Shakespeare, whose great anniversary we are celebrating this year, were printed after his death in an edition which carefully altered the sex of those to whom it seemed his adoration was directed, lest it should offend some of the people of the day.
Surely those who are concerned with authorship, with publishing, with literature in its widest sense, as readers and discussers of literature cannot entirely take as a mere matter of coincidence what happened in two prosecutions brought after the 1959 Act was passed. In one case—the Lady Chatterley case—in which obscenity was alleged, and in which some evidence, good or bad, 586 could be put forward to show that the book had great literary merit, the matter was brought before a jury, who acquitted. But on the next occasion the book concerned was brought before a magistrate with the opposite result, even though the same defence, backed by similar expert witnesses, was put forward. I thought at times, as my noble friend Lord Morrison of Lambeth spoke, that we were in for a re-fighting of the battle of Lady Chatterley, which I understand your Lordships fought around the time when I had not the honour and pleasure of being one of your number. I can only say that although he and other noble Lords may not like Lady Chatterley, there seems to me to have been produced, either in this House or elsewhere, no evidence that Lady Chatterley, having been allowed to go free by a jury, then led to wholesale corruption anywhere in the country.
I remember at the time that I was having lunch with the editor of one of those mass circulation Sunday papers which rather specialise in what I describe as the near-pornographic stories of film stars and near-film stars. We were having lunch because I had been attacking him in the most harsh terms of which I was capable, in the columns of a weekly journal for which I write, for publishing material of that kind. He was attempting to put forward a defence that this was in the interests of his readers. I said to him, "Well, if you are so concerned with the interests of your readers, I presume that in the light of the Lady Chatterley decision you will be serialising Lawrence's book in full". He said, "Don't be daft! They wouldn't read it. They would find it far too dull." And, of course, that is true. The idea that thousands of people with no normal literary appetite and taste are going to read books, often books which require a good deal of concentrated attention and literary background, is surely nonsense.
That, I agree, is fully accepted by the Government, and, indeed, we were given assurances on the point by the noble Lord, Lord Derwent, who quoted assurances given in another place, that normally the procedure where there was continuing publication, which is to be taken as where there is serious publication by a serious publisher, was that the matter would be dealt with under a 587 criminal prosecution, which would mean that it would go before a jury.
§ LORD DERWENT
My Lords, may I just interrupt? It would mean that the man, in this case the publisher, would have the right to go before a jury. I want to get that clear. It need not necessarily go before a jury.
§ LORD FRANCIS-WILLIAMS
I thank the noble Lord for his correction. The publisher would have the right, and that is what seems to me, and I think to many who share my views, important. I quite appreciate that difficulties arise under the Act and under this Bill because, in fact, there are two procedures. There can be a criminal prosecution where the right to trial by jury exists, or there can be forfeiture proceedings where no such right exists because the charge is not really an offence in the criminal sense, and if an order for destruction is made there is not a criminal conviction. This is a very convenient procedure. It enables the magistrates and the police to carry out what one might call a sanitary disposal operation. I fully agree with the noble Lord on the Bench opposite that this sanitary disposal operation is a very important operation and that there ought not to be anything which would seriously stand in its way.
Nobody—certainly not I and, I am sure, certainly none of your Lordships—wishes to do anything which will assist the distribution of what might be called "filth for filth's sake", although, of course, it is usually filth for money's sake. We are wholly concerned to stop that, even though we may not perhaps entirely agree with the view of some people that these books necessarily produce the total corrupting effect that is argued. I have always believed that the reading of pornography is a rather pathetic vice, a vice of those who cannot rather than those who can, and that it seldom leads to crimes of violence, and so on. But the fact that it is a pathetic vice does not make it any more right that groups should be allowed to make money out of its exploitation, or that the exploitation of this vice should not be put down with the greatest force available.
But what I and many who agree with me are concerned with is not this sort 588 of rubbish, but the case where bona fide issues of literary merit arise. It is my case that in such issues questions of convenience ought not to be allowed to stand in the way of the right of reputable authors and publishers to be judged by their peers; that is, before a jury which can come to a judgment with the assistance of a judge on all legal matters, and which can judge, can sum up, can consider the arguments and the expert evidence put before them, in the light of the general climate of their age, of their own feelings and of the feelings of those of that body of the community of which they are a part.
It has been claimed in another place and I think it was claimed by the noble Lord, Lord Derwent, that, however desirable this might be, it was impossible to go beyond an assurance on behalf of the Attorney General and to write this into the Bill itself, because it might increase the number of criminal cases unduly. This Bill, under Clause 1, is actually designed to produce criminal prosecutions in a number of cases which previously were subject to forfeiture; but let that go. I should be interested to know, if the noble Lord, Lord Derwent, has the figures, how many cases of forfeiture before magistrates there have been. How many have there been, for example, in the last year, or in the last six months? I ask because, without these figures, one cannot begin to judge whether there is any substance whatever in the claim that, if there were a right to go from forfeiture to criminal proceedings, the courts would be choked. The figures which have been given of the number of books seized are not really relevant to this, because a great many books may be forfeited in one particular case. We want to know how many cases there have been.
Even if there has been a considerable number of such forfeiture cases, are we really to believe that the back-street, undercutting bookseller and all his associates are going to demand the right to criminal prosecution in a higher court, with all the much heavier penalties of which that puts them in risk, any more than the succession of prostitutes who in the normal way of things used to appear at our police courts demanded the right not to be judged summarily but to go on to a higher court? Of course they would not. But if there is a genuine fear 589 that this might be so, then I suggest to your Lordships and to the Government that it ought not be beyond the legal and constitutional wit of those concerned to devise an Amendment to this Bill which would enable the legitimate author or maker of books—in using the word "maker" I mean the publisher in the ordinary literary sense, and not in the legal sense of one who simply distributes material—who appears, as he is entitled to appear under the Bill as it now stands, when there is a forfeiture case before the court, and satisfies the magistrates (a) that he intends to persist in publication and (b) that he intends to raise a bona fide case of literary merit in the public interest, to obtain an adjournment.
It ought not to be impossible to devise means whereby, in such circumstances, the forfeiture case should be adjourned while the author or publisher is tried before a higher court, he having the right to go before a jury. I hope we shall hear from the noble Lord, Lord Derwent, whether he thinks that would be possible. I should tell the noble Lord that many of my friends, including some of the highest legal capacity, believe that it would, and that, in the absence of some satisfactory assurance from him that a genuine attempt will be made to devise such an alteration in the Bill, I shall feel that there is no option but to move the Amendment in Committee, much as I know the House is anxious that this Bill should go through quickly.
My Lords, I ask the House to consider what is at issue in this matter, or what may be at issue. It is not only a consideration of the literary merits of books which may be judged in the future to be part of the most civilised contribution of this nation to the world, important though that is. What also is at issue, or may be at issue, is the reputation and livelihood of a man. I think that many of your Lordships who heard the moving introduction of my noble friend Lord Gardiner to the debate on penal reform will have been struck by the truth of what he said about the punishment which befell a professional man, such as a solicitor, who was found guilty of a fraud which in other circles would have meant nothing very much. In such cases imprisonment or a fine was a very minor part of the punishment.
590 Here, my Lords, a book written by a reputable author, earnestly with sincerity, out of long hours of work and with the pain and struggle of creation, could be brought before a magistrates' court under a forfeiture clause—and, although the assurances given are satisfactory, I suggest that we need more than assurances; we need something which is actually written into the law—and it might well be that that author's whole reputation and future livelihood are at stake, and might be sacrificed if the verdict goes against him. I have no objection, and he can have no objection, if the verdict goes against him as a result of a decision of a jury, after the case has been argued and all the evidence that he wishes to put forward has been put forward and has been considered by twelve of his fellow citizens. That is the principle upon which our justice is based, and by which I, and I am sure all authors, are prepared to abide.
In conclusion, may I remind your Lordships that this is part of the whole complex of that long struggle for freedom of expression—freedom of the Press, freedom of the individual—which has been part of our democratic tradition. Let me remind your Lordships of some words in the Letters of Junius, who wrote:Let it be impressed on your minds, let it be instilled into your children, that the liberty of the Press is the palladium of all the civil, political and religious rights of an Englishman, and that the rights of juries to return a general verdict in all cases whatsoever is an essential part of our constitution".I hope, my Lords, that we shall look at this Bill in that context.
§ 5.29 p.m.
THE LORD BISHOP OF CHICHESTER
My Lords, support for this Bill has already been expressed from this Bench in an able maiden speech from the noble Prelate the Bishop of Newcastle, to whom I also should like to add my congratulations—and it may be some consolation to the noble Lord, Lord Morrison of Lambeth, that on this occasion, at least, there are two Bishops side by side, both of them in agreement and both of them in agreement with him. For myself—and I take it that this is true of many of your Lordships—I cannot get greatly excited about this Bill one way or the other.
Indeed, a great deal of the opposition that has been expressed, not so much 591 here as elsewhere, has been against the 1959 Act, to which this Bill is a needful extension, rather than against this Bill, because it has not revised the principle altogether—and even here the ghost of Fanny Hill still walks, rather angry that it has been excluded from returning to life through the action of a magistrate rather than a jury of twelve. But there is no debate between us here on the importance of getting, through this or some other measure, powers for effective control and suppression of the great weight of poisonous trash that has been seeping into this country from one source in particular—although, no doubt, not only from that source—and there is no need for me to dwell on this point because figures have been mentioned in this debate and in another place.
It was said that from 1961 to 1963 1,800,000 novels coming over the Atlantic had been suppressed by Customs or police; and the Public Morality Council has cited the figures since then to show that the process is still going on. That Council stated—and your Lordships will agree to this—that, in fact, the great burden of this material being poured out in this country comes from half a dozen major publishing houses. If that is true, then our concern is not primarily with the back street bookshop, or even the main road bookshop or market stall (although these have their influence locally), but is with the groups of people who have seen in this traffic a source of lucrative gain and who do not scruple to seek that gain at the expense of the well-being of the community.
My Lords, we pride ourselves on being a liberal democracy, prizing very greatly the value of the individual and the worth of freedom, and it would be right for us to uphold this freedom, to which the noble Lord who spoke last testified so warmly, in any way we can, so that the individual, in his own personal life, can have the power of choice and discrimination such as will help him reach maturity and happiness. That is one of the features of a liberal society.
Another feature of a liberal society is that it will accept or impose on itself some form of restraint where the welfare of any individual or any part of society is likely to be affected. Such a Bill as this does involve restraint by society 592 on society itself. We do not question the principle of that in other fields. In the case of dangerous drugs or dangerous pills which might be seen to affect people's health, we do not think it wrong that we should intervene to control. I think we should take just as much care for people's minds as for their bodies: and all the more so to-day, seeing that we are in a situation which did not obtain 50 or 100 years ago; a situation in which the world is becoming more literate—or, at least semi-literate—and the power of dissemination through printing, distribution, transport and publishing is so much greater that the influence of what is written can reach dimensions not previously thought possible.
All this seems to me to constitute a duty on society to consider how it may restrain itself in some ways if it is to protect its weaker members from being commercially used. The objection to this Bill, in its most lucid and forcible form, as it has been expressed by the noble Lord, Lord Francis-Williams, here this afternoon, and in another place, has been primarily not against the flow of sadistic or pornographic trash coming here but on a quite different level. It comes from those who consider that this Bill will restrict the right of public judgment through a jury and the functions of responsible publishers. We must all feel sympathy with this view. I think we are aware, like the last speaker, of the possible Shakespeare whose Sonnets will never be published at all, even in an expurgated form, or of a Milton who remains mute.
But, my Lords, that is not the issue before us to-day. The issue is whether we can curb the flow of this matter; whether we can stop any loopholes in the process that the 1959 Act has revealed, and whether the way which the Government have chosen is the most effective way of doing it without clogging the processes of law. I believe that the case has been made, and I hope that it will be agreed to. The Solicitor General has given his assurance (and it has been repeated by the Minister this afternoon) that where a publisher, for reasons which we respect, wishes to press home his appeal to the bar of public opinion he will have the opportunity to do so, and to stand alone on his own ground in the 593 process. There may not be many cases where a publisher will wish to do so; but it is certainly reassuring for us to be told that the intention of this Bill is not to prevent anyone who sincerely believes in the merits of a certain book from testing his convictions before a jury.
This is a limited operation. It will, of course (and in some debates this has been made apparent), find no favour with those who are intrinsically opposed to any restrictions at all. They would maintain that everyone should be free to judge for himself and, therefore, should have access to anything that anyone else, for any motives of his own, likes to produce, so that he may have the chance to judge for himself. We all sympathise with this attitude. It would say, in effect, that although laissez faire has ceased to be a viable policy economically, it is still the right policy in matters of culture or in things of the mind. Of course, it is difficult for anyone to say what the effect of any publication can be. I do not really know how we should assess the effect of Lady Chatterley's Lover in such terms as have been asked for to-day. How should we know what the power for good or for ill of a book is? I should find it difficult to look back on the host of books I have read and be able to say what each book did to me, and I should find it far more difficult to assess the same result of any book on my own family or on young people generally.
But if it is argued that bad books, rubbish or trash of the sort which we are discussing, can be read, and will normally be read, without any bad effect, then it can equally be argued that good literature can be read without good effect. We are coming to the position that, because it cannot be proved, we cannot assume that reading this or that book has any effect at all. Yet we must assume—and rightly, I believe, in the long run—that what people see or read has some influence in the shaping of their minds; and we are therefore right to be concerned for the kind of reading matter which wilt be available or pressed upon them—and especially on young people. Obviously we wish to see good reading matter take the place of bad; but this does not happen automatically. Human beings 594 being what they are, it is possible that a kind of Gresham's Law would operate and that bad books would drive out good, just as bad currency drives out good, rather than the opposite. All this means, I think, that some restraint imposed on itself by society is necessary: an effective restraint holding nicely the balance, which has already been referred to, between the individual's claim to freedom and the duty of society.
But, my Lords, if we pass this Bill, as I hope we shall, in order to curb a particular evil in society, we shall all recognise that the restraint of bad books or bad ideas must rest ultimately with society itself. In the end, perhaps, the answer will lie in the growth of the fuller education. The mature can no doubt take in their stride a good deal of trash without being affected by it, because their minds are sufficiently well-stocked to keep it in proportion or to discount it; but the half-educated person may be even more susceptible than someone who has no education at all and therefore has no desire or no ability to read. I think that it is in that field, more than in restrictive legislation, that our hopes must rest.
But we must also consider more closely and seriously the causes which lead men to find in this kind of literature something that is palatable or attractive or marketable. Is there something wrong with society, something missing, in terms of sensible and healthy interest of the mind and body, the lack of which creates a kind of vacuum, into which something that is lurid or titillating may enter? The market for these books is found just as much in older people as in the younger ones; just as much in those who feel that the vitalities of youth are going as in those in the full crest of curiosity. That is a pathetic commentary upon the meaninglessness of so much of our life.
It may be that in a new estimate of the family and of ordinary personal relations we have to find some answer to this question, quite outside legislation. That, of course, does not lie in your Lordships' House, but I am sure that your Lordships would fully agree that in passing this legislation, as I hope we shall, we must not assume that we are doing more than stopping up a gap. The creation 595 of something new and more healthy rests elsewhere, but I hope, because that is a long-term process, that that will not discourage us from stopping the gap and from giving our full support to this Bill.
§ 5.43 p.m.
§ LORD AUCKLAND
My Lords, I think that the intentions behind this bill are wholly admirable, and all parents of young children—and I am one—will welcome any action to curb blatant obscenity, both in print and in picture. Since children to-day mature earlier than they did, say, fifty years ago, the need to curb obscenity is the greater. But I wonder whether this Bill will be a thoroughly effective weapon to this end. It is a matter of conjecture whether legal methods alone can curb obscene publications or obscenity of any kind. Speaking as one who is not connected with the legal profession, I think that this Bill will give a good many headaches to the courts, who will have some difficult judgments to make. It will also give a great deal of extra work to the courts. One learns from the 1956 Report, for example, that something like 30,000 postcards had to be studied.
It is also a matter of opinion as to how pornography itself is going to be measured. Will the mere use of four-letter words alone constitute pornography? The noble Lord, Lord Morrison of Lambeth, with much of whose speech I greatly agree, mentioned the well-known and controversial book, Lady Chatterley's Lover. I have read both the expurgated and the unexpurgated versions of this book. I much prefer the former, because I found the unexpurgated version dreadfully dull. I think that one of the reasons why its sale was a nine-day wonder was that it was repetitive. I do not believe that a book of that kind would have a very marked effect on the morals of young people. I would turn to another book, The Naked and The Dead, by Norman Mailer, which is an interesting and, I found, fascinating account of the Far Eastern war during World War II, in which four-letter words are disguised. I think that, for this reason, they are likely to evoke more curiosity. I am not attacking this book, because I believe it is a reasonably realistic account of 596 how the war in that part of the world was conducted and of the kind of language which is frequently used by men under fire and seeing their comrades shot to pieces or tortured before them.
The noble Lord, Lord Morrison of Lambeth, mentioned sadism and I am inclined to agree with him that sadism does more harm than pure sexual expressions. There are sadistic books obtainable in London to-day. I have read one or two of them and I found them very distasteful reading. In another place, my right honourable and learned friend the Solicitor General, in his winding-up speech on Second Reading, stressed the dangers of sadism as well as those of obscenity. Rules of order prevent me from quoting his speech, but that is the gist of it.
The advent of the paperback has placed on the market more books of a price range that is reasonable to the general public. One can go to the bookstalls of W. H. Smith amp; Son and others and obtain books which contain sexual expressions and accounts of the sexual act, which some may describe as obscene. But there is one thing which worries me far more, and I should like my noble friend the Secretary of State to look into this. I have not given him prior warning of it, but it is a relatively simple matter. There are shops which sell surgical appliances and medical appliances. These are perfectly legitimate. But I wonder whether some of the publications which one can obtain in those shops are entirely suitable for public reading. I am not referring to people in the medical profession or those who wish to read them for professional or genuinely interested reasons. I would ask my noble friend whether there is an age limit for young people who visit these shops and buy these publications. I am not necessarily attacking the publications themselves, but I feel that a number of them could be much more damaging to young people than some of the books which seem to be covered by this Bill.
I particularly welcome Clause 2(1) of the Bill, bringing photographic negatives within its scope. Another way of spreading obscenity is the picture postcard. I do not think these postcards are so frequently available, but a few years ago, in the City and elsewhere, these photos were in fairly liberal supply. 597 There is no knowing how many teenagers may have seen some of these rather lurid and revolting pictures. The market for these has, I think, now mercifully dwindled. Also—in the legal sense of the word, publication may not apply here—some of the photos obtainable at the seaside, or some of the picture postcards, could surely be described as not only being in bad taste but also bordering on the sheer undiluted obscene. I should like to ask my noble friend whether these come within the scope of the Bill.
There are still stalls and bookshops in the City of London from which one can obtain books and publications and illustrated booklets of a nature not really in keeping with the good name of the City of London. I hope I shall not be considered prudish in saying this, but I think it is a fact to be borne in mind. As I have said, this is a subject which has been carefully considered: Select Committees have been set up, and there have been a number of Bills covering the subject. Within its own sphere, this Bill is welcome as an attempt to deal with a grave moral problem. But, as I said earlier, it can hardly be the last measure of its kind. While one does not wish to be prudish on these things, and censorship at times can be more dangerous than freedom, nevertheless, the Bill is to be welcomed.
§ 5.55 p.m.
§ EARL COWLEY
My Lords, first I should like to echo what other noble Lords have said and congratulate the right reverend Prelate the Lord Bishop of Newcastle on his maiden speech. I hope we shall have the pleasure of hearing him on many future occasions. This is another piece of legislation, and I think there is a danger that we are creating a state in this country of over-legislation: that we are weaving a web, and we shall not know what is right or wrong. When one looks at the Bill and at what purports to be a very innocent Explanatory Memorandum, one finds that it says that its purpose is merely to block up the holes that have appeared in a previous Act. But this Bill is rather like a sandwich: it has an innocent top and bottom and an explosive middle, because Clause 1 makes a very major change in the law. 598 For the first time, the mere possession of obscene matter is an offence.
What I am about to say I know will not be acceptable and will fall on barren and stony ground, but I should like to do away altogether with censorship in this country. I should like to leave matters to the innate good taste of the public. By pushing this literature underground it becomes like forbidden fruit, and people seek it, whereas if it all came out in the open and everybody could get it, they would read it and discard it. Familiarity breeds contempt.
Perhaps I may draw an analogy and give an example of a certain theatre that exists in Great Windmill Street. I went to that theatre when I was about 17 or 18 years old. It was licensed by the Lord Chamberlain, and his rule was that, providing a nude figure did not move, it was not against the law. But any noble Lord who has ever been to that theatre and seen the type of person who goes there (all the stalls are of one price, so that when someone leaves the front row there is a scramble of all the people in the back trying to get to the front to secure a better view) will know that although the Lord Chamberlain may think it innocent, they certainly do not. The evil, the depravity, or whatever one likes to call it, is in the eye of the beholder.
At that time, before the war—and, I think, a long time after the war—the theatre I am talking about was the only place where you could actually see on the stage the top part of a woman exposed; and they did a roaring trade. In fact, I believe, they boasted of the fact that, unlike any other theatre in London, they never closed. For years and years the top part of the body of a woman has been exposed in Paris. But if you go to a Paris night club and watch Frenchmen—I would not say the same for the tourist—you find that when the girls come on with their bare bosoms the Frenchmen get on with their snails. Rebecca West I believe said, in the trial of Lady Chatterley's Lover, that she thought—and whether she was right or not we shall never know—that Lawrence in that book was trying to use those four letter words over and over again so that he would purge them from the English language. I may say that I disagree with Rebecca West. I think 599 that Lawrence was trying to write a dirty book, and he succeeded in writing a dirty book. But I think if these words are bandied around nobody takes any notice of them, because, of course, dirty words are not in fact intrinsically dirty. To give a very brief example of that, I may say that in yesteryear counsel's briefs were marked F.U.C.K., which stood for "Forced Unlawful Carnal Knowledge."
I should like to see this matter left to the parents and the teachers. I think they are the best censors. Would a parent really give a child Lady Chatterley's Lover to read; or, conversely, of course, would a child really bother to read it? He might if he were told by his grown-ups that it was a nasty, dirty book and that he should not read it. Then, of course, he will get a torch and read it under the bedclothes.
Again, we come back to this subject of what is dirty and what is not dirty. Noble Lords might have seen a play some time ago, again before the war, called Dear Octopus. In that play, children were playing around in the nursery, and one child knew a dirty word. All the other children wanted to know what it was, and by receiving a fine or being given a chocolate (I cannot remember exactly what it was) the child divulged this dirty word. The dirty word was "district nurse", so when they found out that "district nurse" was a dirty word they went round the house whispering it in every corner.
What exactly is pornography? We know that the word derives from the Greek, and means "the writings of a harlot". An example of pornography might be Smollet's, The Adventures of Roderick Random. That book was written in 1748. I have read it, and there is no doubt at all that it is a dirty book. But I suppose that, because it was written in 1748, it is now an example of English literature. Does a book become respectable because of its age? Tom Jones has been made into a film, and has just come off from the West End of London. Someone said that that was a motley history of bastardom, fornication and adultery, but because it was written in the 18th century it has now received the cloak of respectability. What is filthy to one is, of course, not neces- 600 sarily filthy to another. James Douglas wrote the following in the Sunday Express:I have read it and I say deliberately that it is the most infamously obscene book in ancient or in modern literature. The obscenity of Rabelais is innocent compared with its leprous and scabrous horrors. All the secret sewers of vice are canalised in its flood of unimaginable thought, images and pornographic words. And its unclean lunacies are larded with appalling and revolting blasphemies directed against the Christian religion and against the holy name of Christ—blasphemies hitherto associated with the most degraded orgies of Satanism and the Black Mass.That book is James Joyce's Ulysses, which can now be bought on practically every bookstall in the country.
As the law now stands—and this, I think, is important—the judgment of who should receive a book is, in fact, left to the bookseller. If he sees an old lady, and he thinks that her susceptibilities will be disrupted if she reads a certain book, and he sees her heading towards Lady Chatterley's Lover, he may well guide her away and say, "Madam, I don't think you would enjoy that book." Why does he do that? Because he knows that if she reads that book she will say, "What a filthy book! I will never go back to that bookshop." If your Lordships multiply this many times, you will see the point I am making. Surprisingly enough, most people in this country are human beings and parents—booksellers no less than other people; and when children come into their bookshops most of them advise the children not to buy things that are obviously harmful.
When one sees these Bills given a lot of publicity, one rather imagines that this is a country of depraved men and women. At the trial of Stephen Ward the presiding Judge was Mr. Justice Edmund Davies, and that trial, of course, was given a great deal of publicity in our national newspapers. At the end of the trial the Judge said something like this: "One might have thought that we are a depraved nation, but in fact there are a lot of very decent people in it; and the world and the nation go on as before. This is merely a stain on an otherwise white sheet." I hope that the learned Judge will forgive me for being rather free with my quotation.
By this Bill the selling to a policeman will now become an offence. We are now having another safeguard removed. Also, 601 under the sub-legislation, where books may be destroyed it is to be one man who will decide whether something is obscene or not obscene, and what is erotic to one man is not necessarily erotic to another. Let me quote a very short exchange between Lord Cockburn and Dr. Drysdale:Cockburn, C.J.: 'Does it appear to you that there is anything immodest or improper in the book?'Dr. Drysdale: 'Certainly not: in my opinion it is an excellent book.'Cockburn, C.J.: 'Is there anything in it calculated to excite sensual or libidinous feelings.'Dr. Drysdale: 'Certainly not. Indeed on me it had the contrary effect.'There is far more danger in "horror comics." These are, of course, designed for children, yet in one particular "horror comic" which was on sale for children (its name was Journey into Fear) there were three heads cut off by guillotine, one head cut off by a butcher's cleaver, one head blown off by a shotgun, one woman being strangled, three violent beatings, one sleeping man about to be bludgeoned to death with a sledgehammer, one death sweat, two piles of skulls and bones, one dead man in a closet naked, bloody axes, eleven men turned into worms and stepped on, one bloody butcher's cleaver, women being eaten alive by worms, and one scaly vampire of the slimy variety sucking blood. The cheap novelette, I think called the paperback, that you can buy on most railway stations is also harmful. I would submit that a book may be dirty no matter who writes it, whether it was written in the eighteenth century or whether it was written by Lawrence—in fact, it is probably worse if it was written by Lawrence because more people would take notice of it.
There was the Massachusetts judge who, when he was dismissing a case against Forever Amber, said:While this book might be conducive to sleep, it is not conducive to sleep with a member of the opposite sex.If you are going to ban salacious literature, ban the lot. Do not allow one in and one out. If a book is dirty, it is dirty per se, never mind who wrote it.
§ 6.12 p.m.
§ LORD CHORLEY
My Lords, I found myself in very great sympathy with the speech of my noble Friend Lord Francis- 602 Williams, and I should like him to feel that he has at any rate one supporter in your Lordships' House. I remember very well the meetings when the late Lord Birkett was our leader, which preceded the introduction of the 1959 Bill into Parliament. In a number of ways I helped Lord Birkett with his work on that occasion, and I have no doubt whatever that if he were still with us to-day he would have risen from his familiar seat on the Cross Benches and supported with all his wonderful eloquence the speech of my noble friend Lord Francis-Williams—though it does not really, from the point of view of eloquence, need much support for it was itself very eloquent indeed.
The 1959 Act has indeed been a great liberalising Statute. Lady Chatterley's Lover has been referred to frequently this afternoon. I do not want to pursue that particular topic, but the result of the 1959 Act has been that many of the world's outstanding classics previously taboo here have now been published. Who could have expected to get the Satiricor in a paperback with the superbly comic scene Trimalcio's feast? That was a direct result of the 1959 Act and, if one had time I am sure one could find in many other ways the beneficent effects which have come from the wide dissemination of literature which has resulted from that great Statute.
I listened to the speech of the noble Earl, Lord Cowley, with a great deal of interest. I have some sympathy with his view, which has been supported by at least two justices of the Supreme Court of America, that, on the whole, the results of censorship are a good deal worse than if there were not any censorship at all. However, I do not feel prepared to go as far as that, and I am quite happy that this type of filthy literature which has been described by various speakers this afternoon should in fact be put down. But when the noble Earl says that Tom Jones and Roderick Random are allowed just because they are eighteenth century literature I think he is quite wrong; they are allowed because they are among the greatest of English novels. That is the reason.
I have no doubt that he is right to a considerable extent when he says that over-coddling young children is a bad thing for them and that they are much 603 more likely to go wrong in respect of this sort of thing by over-coddling than by being allowed to read books like Tom Jones and Roderick Random. I think we must all remember the wonderful scene in David Copperfield when, in the school in the evening after the masters had gone away—was it Traddles who read from Humphrey Clinker and Roderick Random to the thrilled small boys, who obviously took no harm from it whatever? This is perhaps a little bit by the way, but I think it bears out what the noble Earl was saying: that by over-coddling the youth of this country one can do a good deal more harm than good.
However, the point which I particularly wish to underwrite and emphasise is what my noble friend Lord Francis-Williams said about the jury. The 1959 Act, was, we had thought, intended to bring this sort of literature to the test of a jury, and I think we all felt that we had been cheated when recently we read that Whitehall, having suffered a rebuff at the hands of a jury in the Lady Chatterley case, had chosen this underhand way of getting a decision from a professional magistrate. My noble friend Lord Francis-Williams quoted a famous passage in which the free Press was held up as the palladium of liberty. Long before there was a Press of any kind in this country, the jury had been the palladium of British liberty, and it should be the palladium of British liberty to-day, and in this sort of case. This sort of case ought not to be decided by an elderly magistrate; that is, by an official. The jury exists in this country and was built up in this country for the purpose of preventing the Executive, who, after all, are a set of officials, from overcoming the ordinary people of this country by executive action.
This is typical of the kind of thing against which our jury has frequently protected people in this country. I hope—and I will certainly do my best to help my noble friend—that we shall be able to put into this Bill an Amendment to make it obligatory that this sort of case should in fact be decided by a jury, because it is not good enough—and this is the point which I think was made by the noble Lord, Lord Auckland—that one man should be able to give a 604 decision in a case of this sort, that one mind should finalise on a point of this kind. It is not really right. It ought to be brought before a representative collection of the ordinary people to decide whether literature of this kind is or is not to be published. I hope the noble Lord will press on with his Amendment, and certainly he will have all the assistance I can give him.
§ 6.18 p.m.
§ LORD GARDINER
My Lords, this has been an interesting debate, and I particularly enjoyed the contribution made by the right reverend Prelate the Lord Bishop of Newcastle. I rise only for two minutes just to explain why I, too, would favour the kind of Amendment which has been proposed by my noble friend Lord Francis-Williams. I think that barristers and solicitors who in the course of their work have to read a good many books, and look at photographs or pictures which are alleged to be obscene, would agree that they fall pretty clearly into two quite different groups. The first comprises a very small number of books, written by established authors, which are obviously of some literary merit but partly erotic in content—and the sort of thing on which two people might well differ as to whether or not it goes too far. The other, and much the larger, class comprises books, usually paperbacks, very often a mixture of sex and violence, which have no literary merit of any kind about them, no art, no thought, and which are really nothing but filth.
I think we shall almost all agree that a magistrate should be free to order the destruction of the second group; and the sooner the better. But when it comes to the first group, this is an entirely different question. If we are dealing with serious literature, then, of course, any decision made is of considerable importance to the author, both as an author and as a man. If we look back at the past we can see that we do look rather silly in respect of some of our outstanding pieces of literary work which were banned at one time. That is why I should have thought that if the author or publisher were to take the view, "Well, of course, if the magistrate simply orders their destruction nothing happens to me; but I would sooner risk a substantial period of imprisonment and go for trial at the Central 605 Criminal Court before a jury, because I know what I intended to do by this book and I ought to have a chance of justifying myself", he should have that right. After all, it is our ordinary legal procedure that if somebody in this country is charged with a really serious offence he should have the right to trial by jury.
Perhaps I might add a postscript with reference to the question raised by the right reverend Prelate the Lord Bishop of Chichester—a question which I think has sometimes been raised before: whether, perhaps, if a thing is better written it may not do more harm than if it is badly written. I remember a case of the first kind that I have mentioned, in which literary witnesses were being called. Being aware of this argument, I said, "After all, it is the doctors, who treat the sexually corrupt, who know about this, and I think you had better go and see two or three of the very Right-wing psychiatrists, preferably those at the teaching hospitals; and as they are used to treating the sexually corrupt I think you had better go and ask them whether that which corrupts people is the well-written literary work or, rather, this other kind of trash which is published solely for the purposes of pornography".
They did that, and each of them very kindly looked through all his records, and each, quite independently, said the same thing: that, "There are, of course, several causes of sexual corruption. I have looked through all my records, but I cannot find a single case of anybody ever being corrupted by anything he has read". This did not surprise me as much as it did some people, because it cannot be the fact, I suggest, that those of a particular occupation are proof against moral corruption—and the right reverend Prelates will not misunderstand me if I say that this can happen even to a clergyman.
Nobody ever suggests that the barristers and solicitors who have to read the books are morally corrupted. The judge reads the book; nobody suggests that he is morally corrupted. And nobody suggests that the distinguished witnesses, who have usually read the book before—although it is sometimes a bad one—have become morally corrupted. The jury have to read the 606 Book. Again, nobody suggests that they are morally corrupted. It is always somebody else. I have always wondered whether, if this is true, our law is based to some extent on a misconception.
Nobody of course would lift a finger to save some of this awful stuff, mostly coming in from abroad, some of which I have had to read in the course of my work—and it really is some of the most appalling stuff anybody could imagine. But when it comes, for example, to a book written by an established author, which is studied in every university of the world where English literature is studied, except in his own country, then this seems to me to raise questions which, on the whole, are best decided by a jury. A man who is charged with what ought to be regarded as the serious offence of publishing obscene matter should have the same right to trial by jury as everybody else who is charged with a serious criminal offence. It is for those reasons that, personally, I would support the sort of Amendment which has been suggested by my noble friend Lord Francis-Williams.
§ 6.25 p.m.
§ Lord SHACKLETON
My Lords, this debate has gone on rather longer than I think many of us expected, but I must say I was rather pleased to hear the last two speeches. May I re-echo what my noble friend Lord Morrison of Lambeth said? Although I am winding up for this side of the House, on this Bill we are all speaking personally; we regard this as entirely a subject for the free exercise of opinion and conscience, and I hope very much if an Amendment does go down the Government will treat it in that way. I do not think the differences between us are so great. We are concerned on one particular point, as to whether the assurances that the Government have given are adequate; but I will come back to that in a moment.
I think there is a general welcome for the Bill. I share the doubts of some noble Lords. I think the noble Earl, Lord Cowley, was one; I was not quite sure what line he was on, but I think he wondered whether censorship was worth while. Indeed, he later advocated abolishing censorship altogether. I do not think this is really practical politics at all and I am sure he does not think 607 so. There would be an immediate demand—indeed, whenever one liberalises anything there is always pressure from certain people—to go back again. By and large, I think that such censorship as there is, as exercised now, is a great deal more moderate, whether decided by my noble friend Lord Morrison of Lambeth or the Lord Chamberlain. There has been a general relaxation in this matter.
With regard to pornography of the kind about which the noble Lord, Lord Derwent, spoke—and he made a very clear speech, and I am glad he continued with his fuller explanation later, because it was rather important—he was talking about what he called repulsive books. I think it is rather a good title for a publisher—Repulsive Books Incorporated. I do not know who has to do the reading of them. We had visions of somebody in a rather uncomfortable customs office somewhere thumbing through the books. Perhaps they are given a special quick reading course so that they can get on more quickly and with less personal damage. We are agreed we do not want this. This is not only a matter of corruption; it is a matter of public taste and decency.
The argument whether books corrupt is, of course, a difficult one. I am always impressed by the arguments of my noble and learned friend Lord Gardiner. I am not entirely convinced by his Right-wing psychiatrists in this matter. I do not know. I do not know how far I have been corrupted. For a short period after I had read Lolita, which I found a quite brilliant book, having read the reviews and thought it sounded ghastly I felt a vague feeling of guilt every time I saw a small girl in the street. But I do not think I was corrupted. That was a remarkable book, but I can see it would present quite grave difficulties in certain hands. The particular problem that exercises us—and I do not see how we can legislate on this—is that there are some books we wish were not quite so widely published in paperback editions. It is really not possible for us to deal with that.
I should like to refer to the subject of Lady Chatterley, on which my noble friend Lord Morrison of Lambeth "went 608 to town". My noble friend Lord Morrison of Lambeth may have forgotten, although my noble friend Lord Francis-Williams reminded us, that we had a full debate on it in this House, and I remember that I was one of the few of your Lordships who were inclined to defend Lady Chatterley. It was on a Motion which was moved by an ex-Liberal Peer to ban all books by D. H. Lawrence. Some fairly forceful speeches were made. One of the best came from the right reverend Prelate the Lord Bishop of Manchester, who said, I think, that Lady Chatterley was now redundant; that the Church of England had produced a perfectly satisfactory 32-page book which contained all that in an earlier age one had to learn from Lady Chatterley.
While nobody would suggest that it was a great book, there is no doubt that in its time and age—in some ways it is not very readable now—it was an important piece of literature. It certainly has been the subject of great controversy. When it was published it was of concern to headmasters and headmistresses, whether they should confiscate the copies of Lady Chatterley and put them only in the senior common rooms, as was done in some schools. I believe that at Eton no direction was issued, and at one or two public schools boys were forbidden to read it at all. At my son's school they were asked not to read anything that their parents would not like them to read. Since I had defended it in the House of Lords, my son promptly went and got it, and complained afterwards that he found it dull and tedious; that he already knew much of it, and what he did not know he was not particularly interested in. So there are a number of points of view. I suppose we ought just to refer to the brilliant speech in that debate of our late lamented Leader, Lord Hailsham, now Mr. Hogg, who (if I remember correctly) dealt with the subject by defending the book and giving it a different ending. In fact, he largely rewrote it in the course of the debate.
On the subject of Fanny Hill, those noble Lords who are defending the right to publish Fanny Hill are those noble Lords who, like Lord Francis-Williams and myself, have not read it; nor have we mentioned the word "sadism". I do 609 not know whether it is our naivety, or our generally innocent approach to life, but I find it most difficult to accept a situation in which a decision on whether or not that book should be available was taken in the way in which it was taken. That is the main issue that has come out to-day. My noble friend Lord Francis-Williams, supported by certain other noble Lords, has suggested that there ought to be a right, in the case of someone who is prepared to face the danger of a criminal prosecution, for the matter to go to a jury, and there are powerful arguments——
§ Lord DERWENT
My Lords, I am sorry to interrupt the noble Lord, but I do not know whether he has got the point quite right. Where a man is prepared to put himself in the position that there must be a criminal charge, he has the right to go to a jury. The noble Lord must get this fact right: that if the man is prepared, as the noble Lord suggests, to put himself in such a position that a criminal charge is bound to result, then he is bound to have the right to go for trial.
§ Lord SHACKLETON
I do not know whether he is bound to have the right. I thought it was purely that the Director of Public Prosecutions or the Solicitor General had given an undertaking that this process would, in fact, be applied. Am I correct on this? Does he have a legal right——
§ Lord DERWENT
My Lords, it looks rather as if I am splitting hairs with the noble Lord. I rather misunderstood what he said. One cannot imagine a situation in which a man who puts himself in a criminal position will not be prosecuted. But the Solicitor General has undertaken that in this particular case if a man puts himself in that position he will be prosecuted.
§ Lord SHACKLETON
Yes; but the point is that the publisher of Fanny Hill was not criminally prosecuted. This is the point on which it has been argued that there ought to be a right in this matter—one that is written into the law of the land. I am not a lawyer, but I think I have understood it. It is rather based on an undertaking, and we fully appreciate that the application of the law depends on the attitude of public officials, and that from time to time they 610 express their views and give assurances which are publicly taken noie of.
The objection to having this matter decided by a single individual has surely been demonstrated by the proceedings in this debate. Practically everybody who has spoken has taken a slightly different view on one matter or another. The argument in favour of a jury is that we could get a broad spectrum on it. I refer again to the speech of the right reverend Prelate the Lord Bishop of Newcastle, which we all greatly admired. He said that he hoped he was not a censorious man. My noble friend Lord Morrison of Lambeth said that in these matters he was a moderate man—and we know that he is a moderate man in everything. But we all reckon that we are moderate men, and the most censorious individual is usually one who is most convinced of his moderation. And it is on this argument, in a matter of such fine balance of judgment, that the process of law applied in other serious and criminal cases should be made available.
I would further say on this aspect that great principles are involved, and there is a danger that when we look at pornography we shall look at it too much in isolation. Here again, if I may say so with great respect, I may have misunderstood the right reverend Prelate, the Lord Bishop of Newcastle, when he said that, on the whole, advertising did not do harm. I am not using this as an opportunity to attack advertisers; but what I would say is that there are many influences in society on which I would particularly pick, on advertising, which tends to have a corrupting effect, particularly in regard to the matters that we have been discussing to-day.
There is a danger that if we concentrate too much on one thing and put that right, we shall forget the other less obvious blemishes which are damaging within our society. There is a danger that we may suppress in a damaging way; and, as I have said before now, the danger of the suppression of a proper understanding of sex and its extreme importance is something of which the Church is well aware. This is why I am worried about such steps as this being taken, because they tend to give support to those who take an unduly censorious or prudish point of view.
611 I do not think there is much difference between us. I listened to the noble Lord, Lord Auckland, with some interest. I am sorry to think of all these dirty pictures going around in the City of London. Why they should be confined to the City of London and not be in Greater London, I do not quite know.
§ Lord AUCKLAND
My Lord s, may I interrupt the noble Lord? I did not say that they were confined to the City of London. What I was trying to say was that, working as I do in the City of London, I have seen some of them there. But no doubt they are hawked about elsewhere.
§ LORD SHACKLETON
I suppose the noble Lord does mean the City of London and not London. He means the square mile?
§ LORD SHACKLETON
That is a relief to my noble friend Lord Morrison of Lambeth, who was most restive during those remarks. I need not prolong the debate any more. I think it is useful that we have gone over the ground and that there should have been these diverse points of view on certain aspects. I think fundamentally there is a great measure of agreement among us all. But there are great issues involved in this question of censorship. Some of us are critical that the Government should have brought forward a Bill designed to stop up certain loopholes in the 1959 Act, which we are agreed should be stopped up, and that they should say that, because this measure is designed only to stop up those loopholes it is impossible to deal with other defects in the 1959 Act to which attention has been drawn. There is still time for this House to put certain of these matters right.
In regard to the proposals of my noble friend Lord Francis-Williams, if they can be put into satisfactory form and are legally watertight I do not think many of your Lordships would object to them. The Government have conceded the principle by their voluntary undertaking. On this particular point we are merely saying that we should like it to have statutory force. We will certainly encourage the Bill forward and I hope the Government will meet those who wish to improve it in 612 some small degree with the accommodating spirit which the noble Lord displayed so well in his opening speech.
§ 6.41 p.m.
§ LORD DERWENT
My Lords, I am wondering what will be the best way to deal with the debate. Perhaps it would be for the convenience of the House if I dealt with individual points before coming on to the main argument between the two opposing sides, for it may be easier to deal with it in this way. First of all, may I thank all noble Lords who have supported this Bill, particularly the noble Lord, Lord Morrison of Lambeth. It has not been my good fortune to be on exactly the same side as the noble Lord before in a debate, and I must say that I find it very stimulating.
The noble Lord mentioned the question of sadistic literature which may or may not have a sexual content. I can assure the noble Lord that it is covered under the main Act. The words arean article shall be deemed to be obscene if its effect…if taken as a wholeissuch as to tend to deprave and corrupt personset cetera, so that something which was beastly and sadistic could undoubtedly, and in fact would, be taken under that definition. While I am on the definition point, if my noble friend Lord Auckland looks at the principal Act of 1959 he will see, in Section 1(2), that the definitions cover most of the things he mentioned. An "article" means…any description of article containing or embodying matter to be read or looked at or both, any sound record, and any film or other record of a picture or pictures.So I think he will be happy about that.
I should like to say this to the noble Lord, Lord Morrison of Lambeth, and indeed it applies also to other noble Lords. I am a little sorry that there has been such a lot of talk about individual books. I agree that the main problem is the welter of filth which comes into this country from various sources. I was surprised to hear to-day from the police that it is very often sent across instead of ordinary forms of ballast when a ship would otherwise be empty. I understand the purveyors of the stuff pay for it according to how much gets through the Customs. It is a most startling set-up, and this has been getting very bad since 613 1960. The noble Lord, Lord Francis-Williams, asked about numbers. I think I said in my original speech that 360,000 books and magazines had been seized. I cannot give him the exact figure. He asked about results of prosecutions, but I am afraid that information is in the office of the Director of Public Prosecutions and without notice I cannot help the noble Lord on that. But the scale of the problem may be illustrated by the fact that on one occasion we seized 155,000 magazines under hundreds of different titles. They were mostly destroyed in the end. They were certainly fantastic numbers of that order.
§ LORD FRANCIS-WILLIAMS
My Lords, the point I was raising was that the figure of the total quantity of books destroyed has often been given in various forms. I was concerned to know whether the noble Lord could give me any facts of the actual number of forfeiture cases that come up.
§ LORD DERWENT
That is the figure which is in the office of the Director of Public Prosecutions, and I cannot produce it without notice.
§ LORD MORRISON OF LAMBETH
My Lords, the noble Lord mentioned the year 1960 when, he said, certain matters became serious and trouble arose. May I ask what was the significance of the year 1960 and why it happened then?
§ LORD DERWENT
It was largely due to a flood from the United States owing to the bottom dropping out of that market due to certain Federal laws and State laws.
May I answer the noble Earl, Lord Iddesleigh, about the international convention as between certain countries? It works all right. We convey to the other signatories, and they to us, information about exports and imports of this sort of material so that the police in the country concerned can take action under the law. The United States is not a signatory. They are in an extraordinary difficulty about stopping the export of this material which is a matter partly for Federal law and partly for State law. We should be in much the same sort of difficulty, although not to the same extent, with regard to the export of pornographic literature from this country. We are in close touch with the 614 United States Government about this, and they are going to do everything they can to help. It is not just a question of saying to them, "Please stop it". It is a very complicated question and they are sympathetic.
May I next come to the speech of the right reverend Prelate the Lord Bishop of Newcastle? I must say I feel very flattered that it was on a Bill which I was moving that he made his maiden speech. I was particularly glad that he was able to produce evidence of the evil effect on young people of this sort of literature. I would only say that there is a very good air service from his See, and therefore I imagine and hope we shall be hearing from him frequently in this House.
In regard to the speech of my noble friend Lord Ilford, I am grateful for his clear exposition of what the law is and how we are going to change it slightly. He raised the question, though not in quite these words, whether a jury was a suitable body to consider matters of opinion. The normal jury in criminal cases, I think I am right in saying—the noble Lord, Lord Gardiner, will correct me if I am wrong—deals with matters of fact, whereas in this case we are dealing with matters of opinion.
§ LORD ILFORD
My Lords, if the noble Lord will forgive me for interrupting, what I said was that I thought it would be better to leave questions of opinion to a jury rather than to call what are called expert witnesses to give testimony about these books.
§ LORD DERWENT
I am sorry, but unless one is going to call expert witnesses I do not see how one can use a jury. I may be wrong about that, but I should have thought that to have a jury was not necessarily a suitable method of obtaining an opinion.
I think my noble friend Lord Auckland's remarks were in some respects outside the scope of the Bill, but that I have answered the most important part of what he said.
My noble friend Lord Cowley said that he did not like censorship at all, but then he put up a devastating case, with which I did not agree, that if one is going to have to stop certain matter from being published literary merit 615 should not be considered at all, particularly if the book was a classic. That is what I took to be his argument. I must make one remark upon which I think the right reverend Prelate would agree with me. My noble friend Lord Cowley talked about the innate good taste of the public. My Lords, that is something with which I simply cannot agree. Good taste is not innate; it has to be taught, and it is no goad relying on innate good taste if we want to arrive at the proper place. The only other point I have to mention, when we are dealing with Fanny Hill, is that of course it was found to be obscene by a jury before the 1959 Act came into force. It has been in front of a jury.
§ LORD FRANCIS-WILLIAMS
My Lords, I do not want to interrupt the noble Lord, but would he not also explain that there was no possibility then of calling the kind of evidence that was produced later, although it was desired to put expert evidence before a jury?
§ LORD DERWENT
My Lords, I was about to say that, and I thank the noble Lord for saying it for me. I think those are the only separate points that I need mention.
Now we come to this great argument. We are not dealing at all with a case where there is going to be a criminal prosecution—that is quite clear—we are dealing with a case where there is going to be a forfeiture. Let us get one thing right to start with. If you do not have a jury the matter is not settled by one man. In the country it comes, presumably, in front of a bench of magistrates, and in London, which is the more usual place, it usually comes in front of the Chief Magistrate, and then there is an appeal from his decision to quarter sessions. There is not only one man dealing with the question. I should have thought, as this is essentially a matter of opinion, that you are probably getting as good a view in this way as you would from a jury. But it is rather singular, when people apparently feel so strongly on cases of forfeiture that they are being "done down", that we cannot find one case where there has been an appeal to quarter sessions. But I must correct this misunderstanding, and say that it is not a decision by one man.
616 Now, my Lords, this is the difficulty of the case, and I put it quite plainly before your Lordships. It appeared quite plain from what the noble and learned Lord, Lord Gardiner, said, that there is an enormous gap between the extremes of filth and those of literary merit. But I wonder whether this gap really exists. Is it suggested that there are no borderline cases? Is it suggested that no modern author of reputation could conceivably write filth? I do not say that this has been done, but we are trying to see how the law is going to work. I can assure noble Lords, from the advice I have received, that if you are going to frame the Bill so that a defendant can elect automatically to be tried by a jury, one of the purveyors of filth—and I mean on the grand scale—who is involved is going to plead literary merit, and thereby demand trial by jury in the hope that he will get away with it, because he has invested a lot of money.
My Lords, it really is not so easy as this. We have looked at this question, and we know that such a provision may go wrong. There may be the odd book which may be adversely affected, and the odd author; but—and I know this is a rather hackneyed phrase—really hard. cases do make extremely bad law. People say that it should be quite easy to make a distinction between these two kinds of cases. This matter has been debated, in fact, for years. It has been debated thoroughly in the other place. In so far as we at the Home Office are concerned, we have debated this question internally, and we are quite unable to find a solution which is fair.
§ LORD SHACKLETON
My Lords, may I interrupt the noble Lord?—because he is now making a case against what I understood the Government had already agreed, namely, that if an individual publisher in a case of this kind makes it clear that he is going to be persistent in his offence, a criminal prosecution will follow. It seems to me that the only difference between us—and perhaps he will correct me if I am wrong (my noble and learned friend Lord Gardiner may be able to help)—is that in one case there is a voluntary undertaking, whereas we want to make it a statutory requirement. Surely, the case the noble Lord has just been 617 making is against the voluntary undertaking which, if it is honoured, will have the same effect.
§ LORD DERWENT
The noble Lord interrupted me too quickly, I am afraid. Then we come to the question of how this "voluntary undertaking" is going to be arranged. As I said, this is again a question of forfeiture. We say that in the Statute it must be left to the prosecution to decide how to deal with this matter. If it is obvious to the prosecutor—the Director of Public Prosecutions or the Attorney General—that a man is making a genuine case that a book is a work of great literary merit, then we say that we will see, if he says that he is going to persist in it, that he is prosecuted. That does not give him the right to ask for a prosecution. In the other type of case, where it is quite obvious that this is done to try to avoid forfeiture for purely financial reasons, the prosecution would not operate in that way. If the noble Lord will look again at the statement by my right honourable friend the Solicitor General, I think he will find from the wording that what he intended is clear.
If we were to put in the Statute that a man has an absolute right to go before a jury, it would have effect on one of the purveyors of pornography which I have described—and I am talking about one of the big people. If you put a case in front of a jury, involving, perhaps, 150,000 magazines, all of which are pornographic—and that may well happen; we have had cases like that—the jury have to read the lot before they can decide. What happens when there is a big haul like that, is that, in the first instance, the police read a tremendous number of books and produce those particular ones. You would probably produce the books to the jury, but the jury would also have to read them.
Just visualise the position, my Lords. If there is a man who is really trying to evade the law—let us be quite truthful about it—and he is given an absolute right to go for trial if he says there is literary merit in his books, he will do so straight away, because he says, "If 618 the jury have got to read all this, anything may happen". What is being relied on here is the good faith of the Director of Public Prosecutions and, in fact, the Solicitor General. What noble Lords opposite are trying to do is to put this provision in the Statute, and if it is put in the Statute the "wide boys" are going to drive a horse and cart through it. We are quite convinced of that. The Bill will be made not to operate at all.
If, of course, the statement which has been made by the Solicitor General is not accepted by noble Lords, then they must not accept it and they must, if they so desire, put down an Amendment. But if noble Lords will accept his statement, as I think they ought, that in cases of the sort we are all talking about he will see there is a prosecution, then I think we are all agreed. But, my Lords, I must resist at any stage any Amendment which gives anyone a complete statutory right to demand to go before a jury. I think that is all I can say to-day. If, of course, an Amendment is put down I will look at it, but it will wreck the Bill—we have taken the strongest legal advice on this—if it goes into the Statute.
§ LORD SHACKLETON
My Lords, how will it wreck the Bill? This is on another aspect of the Bill. I do not see how it would wreck the Bill at all. The noble Lord keeps on saying, "If they elect to go before a jury". What they are electing for is to face a criminal prosecution.
§ LORD DERWENT
Perhaps I used the words rather loosely when I said that it would wreck the Bill. What I mean is that if we were to put into the Statute that everyone could choose whether or not he was prosecuted, that would in fact wreck the Bill, because it would make it unworkable in certain respects.
§ On Question, Bill read 2a and committed to a Committee of the Whole House.