§ 7.17 p.m.
§ LORD STOW HILL
My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
§ Moved, That the House do again resolve itself into Committee.—(Lord Stow Hill.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD CHAMPION in the Chair.]
§ Clause 14 [Powers of entry and inspection]:
§ LORD MILVERTON
moved, in subsection (2), to leave out "in respect of which a licence under this Act is in force", and insert "whether licensed or not". The noble Lord said: With the permission of the Committee I rise to propose this Amendment on behalf of my noble friend Lord Ilford, who regrets his inability to remain this evening as he has an important engagement. With the permission of the Committee, I should like at the same time to speak upon Amendment No. 9, as they are so closely allied.
These Amendments deal with the circumstances in which the officer of the licensing authority may enter premises to see whether the conditions of the Bill or of the licence are being complied with. In the case of licensed premises this officer may enter without a warrant, but in the case of unlicensed premises the Bill as at present drafted requires the officer first to obtain a warrant from a magistrate. The delay involved in seeking authority from a magistrate and obtaining a warrant may, in some circumstances, defeat the purpose of the inspection. The licensing authorities themselves desire that both classes of premises should be placed upon the same footing, and that their officer should be entitled to enter unlicensed premises without first obtaining a warrant. The time that would be lost in laying an information on oath and obtaining a warrant is a very important consideration, and inspection is more necessary in the case of unlicensed premises than in the case of licensed premises, while licensed premises are 749 more likely to comply with the requirements of safety than are unlicensed premises.
If I may enlarge slightly on that, whatever may be the position in London, much valuable time will be wasted in many provincial towns while an authorised officer of the licensing authority is seeking out a justice of the peace for the purpose of laying an information on oath with a view to obtaining a warrant under subsection (1) to enter unlicensed premises where he has grounds for suspecting that an offence against the licensing provisions is being or will be committed. If one looks at it in the case of licensed premises, the authority is dealing with people who, at least have a knowledge of the law, and by reason of having applied for a licence have shown a willingness to comply with the requirements of the local authority. Surely that authority would not normally issue a licence unless the premises concerned were at least initially satisfactory. The position in regard to unlicensed premises, however, may be altogether different and their use at all for the presentation of stage plays may be wholly unsatisfactory. That is a very brief statement of the case for both these Amendments, but I hope that the noble Lord will consider it adequate for his favourable consideration.
Page 9, line 36, leave out from ("premises") to ("at") in line 37 and insert ("whether licensed or not").—(Lord Milverton.)
THE MINISTER OF STATE, HOME OFFICE (LORD STONILAM)
I am grateful to the noble Lord, Lord Milverton, for moving this Amendment in the place of his noble friend, but I hope he will agree that this is an Amendment which it is not desirable to make to the Bill. The noble Lord is of course aware that under the Bill inspectors will have authority to enter without warrant when the premises are licensed. By his Amendment, he wants the inspector to have power to enter without warrant any premises which are not licensed when they suspect that something is going wrong.
With respect, it seems to me that the noble Lord based his whole case on the time which he alleged would be lost while they were looking around for a justice before whom they could lay an information on oath, and he thinks that this might 750 be fatal. Subsection (1) of the clause permits an officer to apply for a warrant and I would point out to the noble Lord that it is only when the premises are unlicensed, and it is only on the grounds of his suspicion, that an officer of the licensing authority would ever need to enter unlicensed premises.
The Government consider that existing powers are sufficient for all reasonable purposes. As the noble Lord is probably aware, this subsection of Clause 14 is modelled on the parallel provisions of subsection (2) of paragraph 12 of the Schedule 12 to the London Government Act 1963, which has worked extremely well. I am also sure the noble Lord will agree with me that among associations of local authorities it is only the Association of Municipal Corporations which has persistently advocated that this power which is almost, but not quite, unprecedented should be given.
Against the single argument of time that might be lost we must weigh the consideration that these are very wide powers which are asked for which will enable the local authority officer to enter any premises whatever, including private houses, if he has reason to suspect the public performance of a play is being held. These are not powers which your Lordships' Committee, 11 am sure, would lightly agree to give. Nor has it been the practice in licensing legislation generally that local authority officers should have such powers except in respect of premises that have been licensed and where the matter in question is the enforcement of statutory requirements in premises to which it has been recognised they should apply.
So far as I am aware, the only precedent that exists for the powers for which the noble Lord asks in his Amendment are in the Cinematograph Act 1909. Those powers were granted in those days largely because the films made then were highly inflammable and likely to constitute a danger. Therefore it was thought then, nearly sixty years ago, that these powers of immediate inspection, as it were, without warrant were justified. I beg leave to doubt that if we were enacting similar legislation to-day, or it was proposed that we should enact it with the safer films that we have to-day, these powers would be granted. I 751 feel very strongly that we should not confer these unlimited powers on local authorities, and I hope the noble Lord will feel able to withdraw his Amendment. Failing that, I hope my noble friend will not accept it.
§ BARONESS GAITSKELL
I should like very strongly to oppose this Amendment of Lord Milverton in one sentence only; that is, that it would make it absolutely impossible for any family to have a harmless game of charades in their sitting room if this Amendment were accepted by the Government, and I hope that we shall utterly reject it.
§ LORD SOMERS
I wonder whether the noble Lord could give us some instance of where he thinks this would do some harm. With regard to what the noble Baroness has just said, surely in his interests the inspector will not go round from house to house entering wherever he will to see whether something is going wrong. He will do that only where he has definite ground for suspecting it, and I cannot see that there is any likelihood of a responsible man who is doing responsible work going round from house to house and entering without the slightest reason.
§ LORD STOW HILL
I hesitate to add to what has been said so convincingly by my two noble friends who have spoken from this side of the House, and I only venture to rise because my noble friend Lord Stonham appealed to me to advise the Committee not to accept the Amendment. I readily accept that advice. With great respect to both noble Lords, the Bill at the moment, I should have thought, is framed exactly right. Where there are premises in respect of which there is a doubt as to whether there is any licence at all, and where it may be thought that there is a play in unlicensed premises being produced, the Bill requires, in accordance with many precedents in our legislation, that there should be an information before a justice of the peace. That is provided for by Clause 14, subsection (1).
Clause 14, subsection (2), applies to the case where there is a licence but where it may be the case that that licence is being infringed; that the terms of it have not been complied with. I should have thought that, apart from the 752 fact that it is the almost universal practice in our legislation which is being followed (with the sole exception, I think I am right in saying, of the Cinematograph Act to which my noble friend Lord Stonham referred), it is surely the right balance.
The powers given to an officer of a local authority in relation to the Amendment are extremely wide-ranging. If the Amendment were carried, an officer of the local authority could enter private premises or, as my noble friend Lady Gaitskell pointed out, a private house, and would also be empowered to inquire whether there was a breach of Clauses 2, 5 and 6. Under the terms of the Amendment, an officer of a local authority is to be allowed to enter any premises for the purpose of seeing whether the terms, conditions or restrictions of the licence are being complied with, and is also to be empowered to enter any premises, including a private house, for the purpose of inquiring whether "the provisions of this Act" that means all the provisions of the Act —are being observed. This would include Clause 2, which deals with obscenity; Clause 5, which deals with race incitement; and Clause 6, which deals with incitement to breach of the peace. It would be intolerable for somebody who has not had the training of a police officer to be allowed to enter any premises at all without the authority of a justice of the peace, just because he takes it into his head to suppose that an obscene play may be being performed even in a private house. That is the effect of the Amendment, and I cannot help wondering if noble Lords who have supported this Amendment have considered its full implications. They are most far-reaching and are unacceptable to our thinking in general in respect of entry into premises.
Noble Lords have justified the Amendment by urging that there would be delay. That is tantamount to saying that in every case where it is required that premises should not be entered except with the authorisation of a justice of the peace, those provisions should be cancelled because they involve delay and the person whom it is sought to apprehend may have mended his ways before the office: gets authority to enter the premises. That is very wide-reaching.
753 Our Legislature has decreed time and again that before premises are entered in order to be searched to see whether serious crime has been committed, there must be an authorisation by a justice of the peace. That is what is being done in this case. If it is wrong in this case, it is wrong in all the other cases in which, in a far more serious context, it is being used. I hope therefore that when the implications of the Amendment are considered, it will not be pressed. The delay is not so great. Experience has shown that a warrant can be obtained very quickly. It is not as if a person who seeks entry has to search through a telephone book or search half London before he can find a justice of the peace. It is known where a justice of the peace can be found, and it does not take long to put an information before him and for action to be taken in an appropriate case. Experience has shown that it is a short procedure. This has worked well in many other cases, and I can see no reason why it should not work equally well in this case. I hope that the committee will reject the Amendment.
Could the noble Lord, Lord Stow Hill, or perhaps the noble Lord, Lord Stonham, tell me for how many days a warrant would be available once it has been obtained?
§ LORD STONHAM
I should have thought that a warrant would be available for the normal period. I do not know whether there would be a special restriction on this type of warrant.
For how many evening performances would it be available: would it be a week, a fortnight, or for only one performance?
§ LORD STONHAM
We are not thinking of performances. We are thinking of a warrant on a sworn statement granted by a magistrate for entry into premises. It is not a question of performance, but a matter of a period of time. It will be for a magistrate to say for how long the warrant endures.
§ LORD MILVERTON
I am sorry that this Amendment has met with such a lack of enthusiasm. The idea at the back of it was no: the matter of obscene performances or family charades, but the safety of the buildings concerned. It is easy to assume that officers of licensing authorities will behave with a lack of 754 balance or sense, but that is certainly not my experience of them. To speak of interfering with family charades is really throwing a ridiculous light on a serious suggestion. Let us take an amateur performance which sometimes takes place in a schoolroom after school. In such instances there is a danger in relation to the structure of the building, the danger of fire, the danger of inflammable dresses being used, and the changer of an electrical fault. These are serious things which must be attended to. One of the main responsibilities of a licensing authority is that of safety. The legislation was not originally framed to look after morals, nor was it framed to interfere with innocent family games. It was framed to look after situations which might be a matter of life and death to people in the buildings. I regret that this suggestion has not been welcomed. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 14 agreed to.
§ Clause 15 [Offences by bodies corporate]:
§ On Question, Whether Clause 15 shall stand part of the Bill?
§ LORD SEGAL
Could my noble friend clarify the position of a director of a university theatre? This might be in a somewhat different category from an ordinary licensed playhouse, since plays of a purely experimental nature often are produced in such a theatre. They are often plays of considerable artistic merit, but they are invariably produce, 'by undergraduates who have had little experience of play production. Some degree of irresponsibility may be allowed to creep in, not only in the text, but in the acting of a play. In such a situation could my noble friend say whether the director of such a theatre would be liable to be proceeded against and punished in the same way as the director of a fully licensed theatre?
§ LORD STOW HILL
First, one has to find that there is a body corporate and that it is the body corporate, a limited company or any other incorporated entity recognised by law as such, which through its officers has presented or directed or put on a play in premises licensed or unlicensed in respect of which a licence is requisite.
755 Once there is that situation, whether it is at the university or whether it is in any other context, one then has to ask, looking at the particular person—whether he is, say, a don at a university, a director of a company, or any other person who has responsibility in the company as a director, manager, secretary or other similar officer of the company or body corporate, whatever it may be—can it be predicated of him, and established affirmatively in evidence against him, that it was with his consent that the offending performance was put on? I should have thought it was not sufficient—though it is not for me to lay down what the Bill means; I simply offer an opinion which subsequently may be confirmed or rejected by the courts—to say that he was in the vicinity. He has in some way to be shown to have been a positively consenting party. He must know that the play is put on. I should have thought he must know that there must be some factual situation present which constitutes the commission of an offence, and he must in a general sense be said to be involved in it.
Many people may be connected, as patrons or otherwise, with a legal entity which is used for the purpose of putting on plays. But I should have thought it could not be said of them in any ordinary probable context of fact that they consented in the sense in which Clause 15 uses that word. Their minds, I should have thought, must be shown to have gone to and with the performance, and to have been cognisant of the features and characteristics of the performance, or of the other circumstances which give rise to the commission of an offence.
While I perfectly understand that there is apprehension on the part of some parties as to whether they could be unwittingly involved, the interpretation which I offer to the Committee is one which could not possibly lead to a person who is, in a general sense, wholly innocent and unwitting of what is going on being involved in criminal proceedings. The words "with the consent" have to be read together with the words "or connivance". There has to be some actual participation—I do not say in an active sense, but in the sense that there must 756 be knowledge of what is going on and an acquiescence in it, in circumstances where it was perfectly open to the individual concerned, having that knowledge, to refuse to be associated with it or to use his influence to prevent it. Nothing less, I should have thought, could possibly suffice for the involvement in criminal liability of any of the persons here listed—directors, managers, secretaries or other similar officers of a body corporate. I should have thought that that was just as true of a university body as it was of an ordinary limited company. I hope that answer will be thought adequate by my noble friend.
§ LORD SEGAL
I should like to thank my noble friend for clarifying this point to a large extent. I do not wish to press the matter at this stage, but I think he fully realises that a great deal more latitude ought often to be allowed to young undergraduates and minors, who are often quite inexperienced in the production of plays. The purpose of a university theatre is to educate the students not only in play writing but in play production, and in acting itself. Therefore, in those cases I hope that this clause will be interpreted with a great deal more latitude than would ordinarily be allowable in the case of a licensed theatre.
§ LORD STONHAM
While entirely agreeing with what my noble friend Lord Stow Hill said in answer to my noble friend, may I ask this question, in order that there should be no misunderstanding arising out of what my noble friend Lord Segal has just said? Is it not the case that under this Bill the position of the presenter of a play in a university would be precisely similar to the presenter of a play by an amateur dramatic society somewhere else?
§ Clause 15 agreed to.
§ Clause 16 agreed to.
§ 7.45 p.m.
§ LORD FARINGDON moved, after Clause 16, to insert the following new clause:
§ Copy of each new play to be delivered to British Museum
§ ".—(1) This section applies to the first performance of every new play, based on a script, and "new play" includes every new act, scene or other part added to any old play, and every new prologue or epilogue, and 757 every new part added to an old prologue or epilogue:
§ Provided that this section shall not apply to a performance of a play falling within the exceptions contained in section 7 of this Act.
§ (2) The person or persons who presented a performance to which this section applies shall within one month of the date of that performance deliver at his or their own expense a copy of the actual script on which that performance was based to the Trustees of the British Museum who shall give a written receipt for it.
§ (3) If the person or persons who presented the performance fail to comply with this section, he or they shall be liable on summary conviction to a fine not exceeding £20, and the fine shall be paid to the said Trustees.
§ (4) In this section "script" has the same meaning as in section 9(2) of this Act."
§ The noble Lord said: This is an Amendment for which I have received a great many expressions of sympathy from noble Lords in all parts of the House, and that seems natural in view of the circumstances which give rise to it. The Amendment arises because of the terms of the first Act setting up censorship, which was passed by Walpole in 1737 and contains the provision that, when distributing licences, the Lord Chamberlain should demand the deposit with him of the scripts of all new plays. The result—a quite unexpected result, I suspect—has been the formulation of a fantastic library of theatrical documents —not all, I regret to say, in England. I also regret to say that, on an earlier occasion, I quite unintentionally misled your Lordships, because I said that the documents which are not in England are in the Library of the University of Harvard. I am informed that they are not, and that they are, in fact, in the Huntington Library, at San Merino, in California.
§ Since 1824 this accumulation of documents has been in the care of the Lord Chamberlain, and I believe it is only recently that they have been, for the most part, transferred to the British Museum. Here I may say that the British Museum is most anxious to have the rest of the documents, and to be made the beneficiaries of an arrangement which would ensure the continuing collection of theatrical documents in the future. I am told that there are difficulties about this, but I have had discussions with my noble friend Lord Stow Hill and I hope that we shall be able to find some method by which it will be possible to make a reasonable and workable provision for 758 the accumulation in the future, as in the past, of these immensely interesting theatrical and human documents.
§ I am hopeful about this, because, although it is fairly easy to anticipate difficulty about this collection, in fact very little difficulty has been experienced. This is also true of the Copyright Act which has somewhat similar terms, and which has been found in practice to work very simply and easily. I hope that my noble friend and I will be able before the Report stage to evolve a satisfactory method of preserving this unique library, and ensuring its future for all time. I beg to move.
After Clause 16, insert the said new clause. —(Lord Faringdon.)
§ LORD STRABOLGI
I should like to support most strongly what my noble friend Lord Faringdon has said. As he has made clear, the Lord Chamberlain's Office amassed the most valuable, interesting and historic are hive of all the plays performed during the period when the Lord Chamberlain was responsible for censorship, and I am most concerned that this should be continued and that scripts of plays should be lodged in the British Museum. If a play is published by a publisher, the printed work will, under the Copyright Act, go to the Museum, but this will not be so if the play is not published, in the sense that we have known it.
I was interested to note that my noble friend did not include the other copyright libraries—I am sure he left them out for a good reason. I welcome the information he has given the House, that he and my noble and learned friend Lord Stow Hill will be going into this matter more closely before the Report stage, and I hope that some acceptable Amendment will be evolved by then so that this very important question can be included in the Bill.
§ LORD STOW HILL
I think the Committee would be very sympathetic with the motive which prompted my noble friend to put this Amendment down on the Order Paper. We all desire that any play of any merit, even of doubtful merit, should be preserved for posterity instead of perhaps being wholly lost if it is not deposited in some place of safety such as the British Museum.
759 If I thought that this Amendment formulated a practical scheme for the purpose, I would certainly support it. I had the great advantage of having conversations with my noble friend Lord Faring-don, and I pointed out to him the anxieties I felt over the wording he had chosen and his reasons. Perhaps I might shortly state them to the Committee. The clause as drafted applies in effect to all plays. It is true that in the case of public performance of plays there was a similar provision applicable in the case of the Lord Chamberlain. Scripts were deposited with him and, as my noble friend said, a very valuable collection or library was accumulated over the decades, indeed centuries, during which this was done. The difficulty is that my noble friend's Amendment would apply not only to what I might call a recognised West End or provincial theatre, or something of that sort, but in its present wording it will apply to every play, for example, that is performed in a school hall, in a village, or in any local building in which there is an amateur theatrical performance put on.
Hitherto, it has not been the practice for scripts used for these sorts of purposes to be sent to the Lord Chamberlain. It may be that under the law of 1843 this practice should have been carried out. When I say that, I have in mind the prosecution before a learned magistrate concerning the Royal Court Theatre, in which there was a theatre club; and it was held that a performance by a theatre club fell within the scope of the Theatres Act 1843. If that decision was right—and it was never tested in the higher courts—it would follow that scripts of the sort I have described, in country village performances and so on, should have been deposited with the Lord Chamberlain. In fact, this was never done over the decades during which the Act was operative.
This Amendment, under its wording, would certainly require that to be done. It would be almost impossible to enforce. I know noble Lords will agree with me when I say that we must not put upon the Statute Book a criminal injunction unless it is reasonably possible to enforce it. One of the worst things that can be done is to enact that something should be a crime, when one knows per 760 fectly well that it is almost impossible to see that the law is observed. That brings the law into disrepute and disrespect, and it must be avoided by the Legislature, as I hope noble Lords will agree. That is just what is being done here. How on earth is there to be an organisation to ensure that the script of a school hall performance, somewhere in the country, will be sent to the British Museum? Not only is there that difficulty, but subsection (1) of the Amendment provides that the script is to include any new act, every other part added to any old play, every new epilogue or prologue, every new part added to an old prologue or epilogue.
I know these words came from the Theatres Act 1843, but would not this sort of thing arise in a local hall? A script is used and if the performance goes on for two or three nights it is perhaps changed over and over again—an actor cannot remember his part or the part does not seem to suit him, and so it is altered. The effect of this subsection would be that every single alteration, every amended script, every change in the script, would have to be sent to the British Museum, under pain of a fine or other penalty as prescribed by the Bill. Clearly, that could not be enforced, and clearly if we enacted a law in those terms we would be enacting a law which would have not the slightest effect. I would very strongly counsel the Committee not to give their assent to the enactment of laws in those terms.
Those are the sort of difficulties I have explained to my noble friend, which caused me to feel that I could not assent to his proposal. But as I said to him, and as I say again to the Committee, I am very sympathetic with the desire to preserve plays of the least merit and I should be very willing to consider, between now and Report stage, any proposal which might be viable.
My noble friend handed to me just before I came into the Chamber the draft of a new Amendment he was contemplating, which was considerably changed from that which the Committee is now considering. I would say to him that I should like to study it very carefully between now and the Report stage. I would not like to commit myself to saying it is a feasible scheme which is embodied in the draft. I should like to think about it, 761 but I hope that as we are now considering the Amendment before the Committee, the Committee will feel that the advice I am giving is well-founded and that they ought not to give their assent to this scheme.
§ LORD GOODMAN
In view of what has been said, it would be quite wrong to burden your Lordships for any length of time on this matter, except to say that one earnestly hopes that some clause will be evolved before the Report stage that will serve to preserve this most important fund of documents, which is important from a social and historical point of view and from the point of view of the drama. I wonder whether one might throw out a suggestion: one way of dealing with the matter might be to give the British Museum the right to call for copies; instead of making it mandatory for copies to be sent to the British Museum, to require persons who are performing a play in public to notify the British Museum by a postcard that such a performance is taking place, so that the British Museum might be given the right, if they want it, to call for a copy of a play in certain circumstances. I make that as one possible suggestion, because the Committee would feel that even if the net does not catch every work, as it seems clear it could not, it would be very unfortunate indeed if, because of drafting difficulties, we totally excluded the possibility of having a large proportion of the plays presented.
§ 7.58 p.m.
§ LORD STONHAM
I am sure that everyone wants to be helpful about this, and everyone is sympathetic to the objective which my noble friend Lord Faring-don has in mind. I think that during the Second Reading the noble Lord, Lord Annan, said that all that had to be done would be to readdress the envelope that would have been sent to the Lord Chamberlain. If we could do that in a Bill, it would be all quite simple. But when we start to put these things into a Statute, it is not so easy.
I support my noble friend Lord Stow Hill in what he has said about the difficulties inherent in this Amendment. I think it is accepted by all noble Lords who have spoken that Lord Faringdon's Amendment is impossibly wide and quite unacceptable on those grounds, and in 762 any event would not achieve what he wants. I am bound to say, however, that the Government are very doubtful whether the collection of this material justifies a statutory provision; End if there is to be such provision then the obligations imposed must not be greater in character or extent than are necessary to fulfil the objectives.
As my noble friend Lord Stow Hill put it, it is almost impossible to enforce, and we must not put on the Statute Book a criminal injunction unless it is possible to enforce it. There is no point in dilating on the difference between the position of books, which is comparatively simple, as compared with plays but these things must be taken into account, as must also the question of which script is to be presented. It is possible that a script might be very different at the end of a month—certainly at the end of 500 performances—from what it was at the beginning. There is also the difficulty in relation to minors, although this might be got over.
My noble friend Lord Stow Hill said he would be pleased to look at any suggestions put forward which would have the desired effect—without, I hope, criminal sanctions—and certainly we should be prepared to help in that way if we possibly could. But out of a desire to be helpful I would mention one or two basic criteria which would have to be satisfied if an Amendment under this Bill were to be accepted. Any obligation which this Bill imposes in this field must make it clear just what has to be presented. There must not be any uncertainty in the mind of the person responsible for complying with this obligation. Then, the obligation must not impose unreasonable burdens on the whole world of the theatre. The third requirement, of course, is that the scheme must be enforceable. I very much doubt whether a solution satisfying all those three requirements will be found, and I believe that it would be much better to consider what can be done in a voluntary way to achieve what we have in mind.
I understand that the Society for Theatre Research would be willing to operate a voluntary system, and to be responsible for collecting worthwhile 763 material and sending it to the British Museum. This is a very hopeful offer, particularly as my noble friend assured us that the British Museum is most anxious to have it. My noble friend referred to "the preservation of this unique library of interesting human documents." I think I must say that hereafter, when there is no censorship, the documents are likely to be far less interesting than they have been in the past, because I understand that the main interest arose from the correspondence which ensued between the authors and presenters of plays and the Lord Chamberlain. Certainly I think there are some outstanding examples from George Bernard Shaw and others of his time.
But it seems to me that if an acceptable statutory requirement cannot be found then the best way to proceed would be to substitute some voluntary arrangement. It might be appropriate, therefore, for me to mention that we are considering the issue to associations connected with the theatre of an explanatory pamphlet setting out the main changes in the law brought about by the Bill when it becomes an Act. I say "connected with the theatre", but of course it would be a Stationery Office pamphlet and would be available to everyone. We should be prepared to mention in this pamphlet the desirability of sending scripts of plays to the British Museum; and, of course, if by that time any voluntary machinery had been set up to help people, it could set out what that was. This might eventually be the best solution. But certainly I hope the pamphlet I have mentioned will be a great help in making the basic facts of the change in the law brought about by this Bill known to as wide a circle as possible.
§ LORD GOODMAN
May I ask the noble Lord, before he sits down, whether, if this does come about (as indeed may have to be the case, so long as this system is the best), the Government will consider incorporating in the Bill some very modest provision for providing funds for a voluntary organisation to do this? I think the major problem will be the wherewithal to carry this into effect.
§ LORD STONHAM
This is a very difficult subject, and not my province, but I will note what the noble Lord has said.
§ LORD SEGAL
I do not wish to delay the Committee, but this suggestion by my noble friend Lord Stonham that an explanatory pamphlet should be made available through the Stationery Office is of such interest and of such value that I am wondering whether there could be included in it the section of the Copyright Act which requires that copies of books should be deposited not only with the British Museum but also with the Bodleian Library and the Cambridge University Library—a point which my noble friend Lord Strabolgi raised in his remarks, though it was not fully answered, I think, by my noble friend Lord Stow Hill in his reply. The reason I suggest that it should be included in this explanatory pamphlet is that I believe far more interest in these plays will be taken in these other libraries than possibly even in the British Museum.
My Amendment does not seem to have had a very successful reception. I was, if I may say so, very disappointed in what my noble friend Lord Stonham said because, frankly (I may have a very poor opinion of human nature), I know how lazy I am myself and I do not believe that this library will continue to be formed if it has to depend upon voluntary effort or upon any scheme which has no sanctions behind it. In that connection, I would again come back to the copyright arrangements of which my noble friend Lord Strabolgi spoke. The interesting thing to us in the present circumstances, discussing the present subject, is the way in which books are supplied to copyright libraries. I think I am right in saying that it is only the British Museum which gets the books automatically: the other statutory libraries are, I think, entitled to ask for them; but when they ask they must receive.
I believe that if we are to continue to keep this theatrical record in the future as in the past some form of compulsion will be necessary. It may well be—indeed, I should expect—that in fact compulsion would be no more painful than has been the compulsion in connection with copyright. I am told by friends of mine in the book trade that they have in fact occasionally omitted to send in their books. When that has happened, they have got a polite little note from the British Museum saying, 765 "We think this must have escaped your notice, as you will realise that under such-and-such a section of the Copyright Act you should have sent us a copy of your recent publications, 'so-and-so' and 'so-and-so'". On those amicable terms the copyright system has worked without ever, I believe, the enforcement of the sanctions which are available.
But I will not detain your Lordships. I thank those who have supported me; and I hope that: the noble Lords, Lord Stonham and Lord Stow Hill, will be more amenable when I produce another Amendment on Report stage. Incidentally, I have one in my pocket which I think covers most of Lord Stonham's points. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 17 [Interpretation]:
§ 8.10 p.m.
LORD LLOYD OF HAMPSTEAD moved, in subsection (2)(b). to leave out "and" and to insert instead:
Provided that if the director or his representative shall raise no objection to a variation of performance carried out for not less than three performances, the director shall be regarded as having approved and accepted responsibility for such variation and the performer shall not thereafter be regarded as the director of the performance and provided further that the directional responsibility of the performer shall be limited to the variation of performance for which he is alleged to be responsible;".
§ The noble Lord said: I beg to move Amendment No. 11, which stands in the name of my noble friend Lord Willis, who unfortunately is prevented from attending your Lordships' Committee. Clause 17(2) of the Bill starts with the laudable intention of ensuring that an actor, merely because he is taking part in a performance, is not to be held responsible for that performance and therefore not to be made liable for an offence under the Bill when it becomes an Act. But it goes on, in paragraph (b) to make what seems the rather remarkable proposal that if the actor does something which is not in accordance with the directions that he should receive from the person directing or presenting the play, if he should "ad lib." a line, or something like that, he is to be responsible not just for this line which he has "ad libbed." but for the whole 766 performance. This, I venture to submit, is quite an extraordinary proposal. One can understand that the actor should be liable for that which he has inserted. But why this should make him automatically the offender in relation to the whole performance I find difficult to follow.
§ The form of the Amendment seeks to mitigate the effect in two ways. First, it says that if the director has adopted or ratified this variation for three performances then he assumes responsibility, so to speak, takes over and the actor drops out. Secondly, it adds the proviso that in any event the responsibility of the actor should be limited to the particular variation that he has introduced. I should have thought that there might be a case for saying that this whole provision of Clause 17(2)(b) is really rather absurd and could quite well be chopped out of the Bill. But the Amendment does not go as far as that. It seeks simply to modify it in the way I have indicated. I beg to move.
Page 11, line 39, leave out ("and") and insert the said proviso.—(Lord Lloyd of Hampstead.)
§ LORD STOW HILL
I would advise the Committee not to accept the Amendment, for the following reasons. We are no doubt all united in the des re to produce a result that is fair to the actor, on one side, and fair to the person whom I may generically call the producer, on the other. In those circumstances this is how the situation might work out. One begins with this. A play is obscene only if, taken as a whole—and I emphasise "taken as a whole"—it tends to corrupt and deprave. It is not the single line, as my noble friends say, but the general effect of the play as a whole that brings it within, or leaves it outside, the scope of Clause 2.
Take the case of an actor who "ad libs". If he introduces merely one or two lines I do not suppose that that would have the effect of causing the play to cross the Rubicon into the scope of Clause 2. But a play is not far from the boundary, and supposing that the producer has strictly forbidden the actors to depart from the text because there might he the risk of any additional borderline matter bringing the play within the scope of Clause 2 as a whole; and 767 supposing that he has tried all he can to stop the actors from doing it and they nevertheless do it, it seems unfair to him that, because he has not actually watched like a lynx every performance and spotted where it had transgressed his instructions, he may be held to be liable in terms of this Amendment.
I think that is all the more the case when one looks at Clause 17(2)(c), which provides that:a person shall be taken to have directed a performance of a play …notwithstanding that he was not present during the performance;I suppose that you might have over and over again a producer who does his best to see that the play is not objectionable from the point of view of Clause 2. He then perhaps goes abroad, or is absent from the performance because he was perhaps presenting elsewhere some quite different play which he has also produced. If, behind his back, the actors depart from his instructions and use language or gestures which have the result of causing the play to cross over the limit, the result under the terms of this Amendment is that he is made responsible. It seems to me that that is very unfair. It is not right in the circumstances that a producer who has done all he can to keep within the prescribed limits, because something of which he was wholly ignorant was done behind his back and was not picked up by those who were there to watch on his behalf; because in those circumstances there has been "ad libbing" which has brought the play within the scope of Clause 2, should be held to have criminal liability.
It seems to me very unfair that that should be the case. But that would be the result, I put it to the Committee, of the Amendment as drafted. From the point of view of the actor, one could ask: "Is he adequately protected under the terms of paragraph (b)? I should have thought that he was. The words there are:…if without reasonable excuse he performs otherwise than in accordance with that person's direction …Supposing that he does "ad lib."; that he does not follow strictly the text; that he indulges in gestures or something like that; if he was in a general sense not culpable he can rely upon the words that 768 give him a "get-out" if he can show that he had reasonable excuse for so doing.
But if we put in the proviso it might be that those words of wide ambit in the clause as drafted might be held to have a rather narrower scope if read side by side with the proviso. I should have thought, therefore, that if one looks at the matter from the point of view of the actor he is better protected with the clause as it is at present than if the proviso is inserted. In its present form, I should have thought that he had ample protection. If he "ad libs." with a reasonable excuse there is nothing to fear. It is only if he does so without reasonable excuse that he may find himself joined in criminal responsibility.
Therefore I put it to the Committee that as the clause is at present drafted it does give protection. If it is changed in the way that my noble friend wishes to change it, then in the first place the protection given to the actor may be rather less than at present, and, in the second place, it would undoubtedly, in my submission, produce extremely unfair results from the point of view of the producer. Therefore I hope that the Committee will come to a conclusion, weighing the arguments on both sides, that the clause is very much better as it stands and that the Amendment would produce unfair results, both for the actor and for the producer.
§ LORD GOODMAN
This is a small point, but I venture to express the view that it illustrates the sort of Parliamentary drafting that gets us into trouble. It is an illustration of what I would call "completomania" in drafting. The original clause should not have been in at all. The original clause produces a weird effect; if we add the Amendment, we get a weird effect squared. I suggest to the noble Lord, Lord Stow Hill, that he should reconsider, before the Report stage, whether he has done justice to the point made by the noble Lord, Lord Lloyd of Hampstead, who, I think has a valid point. If the noble Lord will not think it an impertinence, I would venture to explain it as I see it.
What the paragraph says is that if an actor without reasonable excuse has forgotten his lines and "ad libs." a single line he then becomes responsible for the 769 whole performance as I understand it. The normal reason for an actor "ad libbing." is that: he has forgotten his lines; and that, I gather, will not be regarded as a reasonable excuse, for a conscientious actor would know his lines. In any event I think it arguable whether it is a reasonable excuse, though it may well not be. It is not a question of considering the performance as a whole. It is not necessary for that line to have the little additional weight which converts the play into an obscene play. It may have been an obscene play without that line at all. It is the addition of that line which, under this drafting, makes him responsible for the play as a whole. That produces a total absurdity. I do not think that the situation would be improved by adopting the Amendment, which suggests that the actor, having become responsible for the play because he has "ad libbed." a line—for example because he has forgotten his lines—should cease to be responsible if the director, shall we say, is absent from the theatre for three nights and does not see what he has done; and the actor goes on repeating it for three nights. Then the matter is perpetuated and the director again becomes responsible. There is not an element of sanity in either proposition. I therefore venture to suggest, quite seriously, that the whole matter be reconsidered; and I think that a simple solution would be to leave out the subsection entirely.
§ 8.21 p.m.
§ LORD STOW HILL
If I may venture to reply to the interesting and cogent speech to which we have just listened, I would think that if an actor departs from the text because he cannot remember what the text is, he might be said to have a rather good and reasonable excuse for the departure. If one pictures the actual situation, the question being whether the play is obscene as a whole and not a particular part of it, it would be an odd situation if the actor forgets his text for the lime being and then plunges into a volt. me of obscenity such as, by itself, by its individual lone force, divorced from al the rest, has the effect of pushing the play across the margin as a whole from non-obscenity into obscenity. Everything is possible in this most remarkable world, but I find it not altogether easy to conceive of a play which is not obscene, but then 770 an actor forgets his words and, because he does so, possibly in a moment of irritation plunges into a volume of obscenity of such intensity and volume that the play as whole becomes obscene. It may happen—
§ LORD GOODMAN
If I may interrupt the noble Lord, from that point it is not necessary. The actor forgets his lines, and he has to "ad lib." He does not have to plunge into a torrent of obscenity. He can utter words of the greatest propriety, and if the play is otherwise obscene, under this clause he is then liable for it. This is the point. My understanding of this is that he becomes Liable whatever he says, provided the "ad fibbing.", the change, is a departure from the author's instruction, and one which is made without reasonable excuse. It does not have to be one which involves any obscenities at all.
§ LORD STOW HILL
I do not think that the Committee would wish me to prolong the controversy, but the joint made is interesting. You start off, therefore, with a play which is obscene, produced in circumstances which are such that the law is already being transgressed and the producer is liable to be prosecuted because he is putting on an obscene play. The actor taking part in that obscene play unhappily forgets his lines, and so he introduces, instead of the obscene lines he was to have used, lines which are no longer obscene, and is anxious lest he should be prosecuted. I should have thought that if an actor, charged to voice obscenity, in a moment of forgetfulness changes himself to non-obscenity, the departure from the text could be excused as being owing to reasonable excuse.
§ LORD LLOYD OF HAMPSTEAD
I do not propose to press this Amendment which I am conscious is not altogether in the most apt and satisfactory form. I respectfully agree with what the noble Lord, Lord Goodman, said, that it would be better (as indeed I suggested myself) if the whole subsection were omitted. I am sorry that my noble friend Lord Stow Hill is feeling so terribly unsympathetic towards this proposal, because it seems to me that here there is a serious point. One could easily find a situation where an actor might find himself saddled with the responsibility 771 for a whole play simply because, without reasonable excuse, he has injected some line which may be in itself obscene, or improper, or whatever it may be; and this is, I should have thought, a thoroughly irrational result. I urge my noble and learned friend to give this matter consideration, which I am sure he will be ready to do—at least I hope he will—between now and the next stage, in order to see whether this position might not be ameliorated either by omitting paragraph (b) or by making some modification to it. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 17 agreed to.
§ Clause 18 [Consequential amendments, repeals and transitional provisions]:
§ LORD STONHAM
moved, in subsection (6), to leave out "three" and insert "two". The noble Lord said: I beg to move Amendment No. 12 and I should like to take with it Amendment No. 13, which is a similar Amendment. The effect of these Amendments is to bring forward by one month the date of the commencement in Clause 19 of the main provisions of the Bill, that is, all the provisions except those listed in Clause 14(2) which, of course, would come into operation immediately. If the Amendment is accepted the other provisions of the Bill will come into operation two months instead of three months after the Royal Assent and they make consequential provisions to the transitional provisions in Clause 18 which are, in part, linked to the commencing date.
The Government are proposing this reduction in the period between the passing of the Act and its coming into effect on the suggestion of, and in the interests of, the Lord Chamberlain. He has pointed out that whereas in this case the law is being relaxed, there must be an element of artificiality in its continued enforcement after the Royal Assent, and he would welcome any reduction in the period during which he would be in this somewhat invidious position. Of course, the Government have considerable sympathy with this view. On the other hand, some interval between the passing of the Act and its coming into operation is essential where new criminal offences are 772 created, because time must be allowed for those concerned to acquaint themselves with the effect and implications of the new law before it begins to apply. For that reason we could not agree that the Act could, or should, be brought into effect immediately. But the Government consider that some reduction in the interval before the Act comes into operation could properly be made, and the two-month period of grace for which the Amendment provides is a fair compromise which would materially ease the pressure to which the Lord Chamberlain is likely to be subjected after the passing of the Act without unreasonably curtailing the time which those who have to operate the new Act will need for preparation for the assumption of their new obligations.
When these Amendments were originally tabled in my name the noble Lord, Lord Cobbold, the Lord Chamberlain, had hoped to be present. As your Lordships are aware, the Committee stage could not be completed when the Committee first met and tonight, because of other engagements, he is unable to be present. But he has written to me authorising me to say that he welcomes the fact that if this Amendment is accepted, these parts of the Bill will come into operation two months after it receives the Royal Assent and I confirm on his authority, that in that period of two months he will continue to discharge his present responsibilities until the new Act becomes operative. That is entirely in accordance with the Government's wishes in this matter. I beg to move.
Page 12, line 14, leave out ("three") and insert ("two").—(Lord Stonham.)
§ On Question, Amendment agreed to.
§ Clause 18, as amended, agreed to.
§ Clause 19 [Short title, commencement, extent and application to Isles of Scilly]:
Page 13, line 5, leave out ("three") and insert ("two").—(Lord Stonham.)
§ On Question, Amendment agreed to.
§ Clause 19, as amended, agreed to773
§ Schedule 1 [Provisions with respect to licences]:
§ LORD STOW HILL
This is purely a drafting Amendment, designed to bring the wording of sub-paragraph (2) into line with the slightly different position in sub-paragraph (1). This produces no effect except to tidy up a slight lapse of language. I beg to move.
Page 14, line 32, after ("authority") insert ("not less than").— (Lord Stow Hill.)
§ On Question, Amendment agreed to.
§ Schedule 1, as amended, agreed to.
§ Schedule 2 [Consequential Amendments]:
§ LORD STOW HILL
This Amendment is again, broadly speaking, drafting. It substitutes a reference to this Bill for the reference to the Theatres Act 1843 in Section 11 of the Theatrical Employers Registration Act 1925. Section 11 exempts persons to whom a theatre licence has been issued from the need to register with the local authority and this change simply preserves the status quo by substituting reference to the present Bill for the reference to the Act of 1943. I beg to move.
Page 17, line 5, at end insert—
|("The Theatrical Employers Registration Act 1925 (15 & 16 Geo. 5. c. 51).||In section 11, for the words section seven of the Theatres Act 1843' there shall be substituted the words the Theatres Act 1968'.")|
|—(Lord Stow Hill.)|
§ On Question, Amendment agreed to.
§ LORD STOW HILL
Will your Lordships allow me to deploy the reasons in support of the remaining Amendments together, because they all hinge on the same point. Amendment No. 16 and the Amendment to Schedule 3 are consequential on Amendment No. 17, which seeks to insert certain new words which appear on the Marshalled List. The reason for this insertion is to be found in the Finance Act 1957 under which, subject to qualifications, justices' licences for retail sale of intoxicating liquor were abolished. That necessitated a change in Section 199(c) of the Licensing Act 1964, because that Act was written so as to 774 apply to the then existing legislation. The new subsection which I seek to write in by this Amendment refers to the present Bill. This group of Amendments makes no change in principle but simply preserves the existing situation by substituting a reference to this Bill for references to previous legislation which covers the same ground. I beg to move.
§ Amendment moved—
§ Page 17, column 2, leave out lines 15 to 19 and insert—
|("In section 162(4) (as amended by the Finance Act 1967) in its application to England and Wales, for the words in any theatre' there shall be substituted the words' on any premises', and the words' at that theatre ' shall be omitted.) — (Lord Stow Hill.)|
§ On Question, Amendment agreed to.
Page 17, line 31, at end insert—
|("The Licensing Act 1964(1964 c. 26).||In section 199, as amended by the Finance Act 1967, the following shall be substituted for paragraph (c)—|
|(c) make unlawful the sale or exposure for sale by retail without a justices' licence of any intoxicating liquor at any premises in respect of which a licence under the Theatres Act 1968 is for the time being in force, or which by virtue of any letters patent of the Crown may lawfully be used for the public performance of plays without a licence under that Act being held in respect thereof, if the proprietor of those, premises has given to the clerk to the licensing justices notice in writing of the intention to sell such liquor by retail at those premises and that notice has not been withdrawn;'.|
|In section 200(1), as amended by the Finance Act 1967, for the word 'theatre' there shall be substituted the word 'premises'.")|
|—(Lord Stow Hill.)|
§ On Question, Amendment agreed to.775
§ Schedule 2, as amended, agreed to.
§ Schedule 3 [Repeals]:
Page 18, line 45, at end add—
|("1967 c. 54.||I The Finance Act 1967.||In Schedule7, paragraph 19.")|
|—(Lord Stow Hill.)|
§ On Question, Amendment agreed to.
§ Schedule 3, as amended, agreed to.
§ House resumed: Bill reported, with the Amendments.