§ 11.40 a.m.
§ Moved, That the Report be now received.—(Lord Stow Hill.)
§ On Question, Motion agreed to.
§ Clause 2 [Prohibition of presentation of obscene performances of plays]:
§ LORD STOW HILL
moved, in subsection (4), to add to paragraph (c):and no person shall be proceeded against for an offence at common law of conspiring to corrupt public morals, or to do any act contrary to public morals or decency, in respect of an agreement to present or give a performance of a play, or to cause anything to be said or done in the course of such a performance.593 The noble Lord said: My Lords, I beg to move Amendment No. 1. The object of this Bill is as follows. When, at an earlier stage of the proceedings upon this Bill, Clause 2 was being discussed, my noble friend Lord Lloyd of Hampstead pointed out what seemed, prima facie at any rate, to be an accidental omission from section (4). He called attention to the fact that although subsection (4) prevented the institution of certain criminal proceedings in respect of what I think can be broadly called offences analogous to those covered by Clause 2(1), which defines obscenity, there was no exclusion of the prosecution for conspiracy to do precisely the same thing.
My Lords, I and others who have studied the Bill have given most careful consideration to that point, and we cannot help thinking that there is an omission, and, I should have thought, probably an accidental omission. A conspiracy, after all, is an agreement to do something. The thing that is to be done in pursuance of the agreement need not in fact be carried out for an offence to be committed. It would be a most unfortunate consequence of the drafting of Clause 2 of the Bill if, although a person could no longer be prosecuted for actually putting upon the stage something which offended against the existing Common Law as to decency and so on, he could nevertheless be prosecuted for agreeing with somebody else to do precisely that same thing. If it is no longer the policy of Parliament that prosecution for the actual act should be allowed, the prosecution for obscenity having been substituted, it surely is logically reasonable that there should no longer be a prosecution for an agreement to do that act although the act itself is not carried out.
The words which I ask the House to include at the end of line 34 on page 2 are designed to prevent prosecutions for that sort of conspiracy: conspiracy, in other words, which is broadly coterminous with the description of offences set out in Clause 2(4)(a). This is designed to rectify what I think can be only an accidental omission, and I hope your Lordships will feel that the words should be incorporated in the Bill. I beg to move.
Page 2, line 34, at end insert the said words. —(Lord Stow Hill.)
§ LORD LLOYD OF HAMPSTEAD
My Lords, I should like to express to my noble friend Lord Stow Hill my appreciation of the way in which he ha s dealt with this matter, which arises out of an Amendment that I put forward on the Committee stage aimed at eliminating the rather unfortunate bogey of the so-called Ladies' Directory case—Shaw v. Director of Public Prosecutions. I express the hope that the House will accept this Amendment in the more satisfactory form, if I may say so, in which it is now drafted, at the instance of my noble friend. One might also perhaps express the hope that if this Amendment is included in the Bill it may provide a useful precedent when the time comes—which I hope may be in the not too distant future—for the general revision of the Obscene Publications Act itself, where this omission still exists, since the Ladies' Directory case occurred after that Act and thereby drew attention to this unfortunate lacuna in the law.
§ On Question, Amendment agreed to.
§ Clause 4 [Amendment of law of defamation]:
§ 11.45 a.m.
VISCOUNT DILHORNE moved to add to the clause:
( ) It shall be lawful for the widow, child or personal representative of any dead person to bring within ten years of the date of the death proceedings for an injunction to restrain the publication of any words concerning the said person spoken in the course of any play which, if the said person were still alive, would give rise to an action for defamation at the suit of the said person, provided that no such injunction shall be granted unless the Court is satisfied that an injunction would have been granted if the said action had been brought during his lifetime by the said person. If the defendant in such an action pleads justification, then the plaintiff shall be entitled to recover damages (which may be punitive) in the event of that plea not succeeding.
§ The noble and learned Viscount said: My Lords, I beg to move Amendment No. 2 standing in my name. We had a discussion in the course of the Committee stage on the question raised by this Amendment. The noble Lord, Lord Cobbold, I think, first drew attention to the position under this Bill, as contrasted with the present position, in the course 595 of his speech on Second Reading. He has made it clear that the Lord Chamberlain, in the exercise of his functions at the present time, does not permit the production of a play or parts of a play which consist of defamation of the dead. That, I think, is most desirable.
§ Under this Bill, with the abolition of the functions of the Lord Chamberlain, that protection of the reputation of a dead man will be destroyed, and nothing is being put in its place. I feel that there is a real need to put something in its place, and that is why I tabled an Amendment on the Committee stage to seek to do so. It met with general support, I think, from all sides of the Committee, and there was a powerful speech in support from the noble Viscount, Lord Norwich. But it was criticised in two respects. In one respect it was criticised by the noble Lord, Lord Goodman, on a technical and rather legal point. The point was (and the noble Lord was quite right) that if you seek to obtain an interlocutory injunction—which in most cases will be the most appropriate remedy—the court will not grant an interlocutory injunction if there is a plea of justification. I have sought to meet that point in this Amendment by providing that damages will be obtainable only if the plea of justification is put forward and fails. The purpose of that is to operate as a deterrent against the plea of justification being put forward frivolously. Otherwise, apart from that particular feature, there will be no right, if this Amendment is inserted in the Bill, for the widow, the children and personal representatives of the deceased to obtain damages on account of the defamation of the dead man.
§ The second objection was advanced by the noble Lord, Lord Lloyd of Hampstead, who pointed out, again quite rightly, that in the clause as drawn there was no time limit. I thought that there was force in that objection, too. I think that in the course of the debate in Committee it was suggested that there ought to be a time limit of something like 20 years. I should have thought that 10 years was long enough. Therefore, I have put in this Amendment the provision that this right of action by the widow, children and personal representatives of the deceased shall enure only 596 for 10 years after the death. Surely it is during that period that particular grief and hurt can be done to the family of the dead man.
§ I have dealt with those points first because I have in that way endeavoured to meet the two technical and valid objections raised with regard to the Amendment that we considered in Committee. At the end of the Committee stage I said that I would give consideration to this, and that I would endeavour to meet it and put down an Amendment on Report. That is what I have done.
§ I come now to what is really the main issue behind this Amendment. It surely is that in this Bill dealing with theatres we cannot make a general amendment of the law of libel. We are, however, altering the present position because, although in speech and in writing a person can now, if he chooses, defame the dead with impunity, he cannot do it on the stage by the writing of a play or the production of a play, because he will not get permission to do so. If this Bill is passed in its present form he will be able to do so.
§ The argument against this Amendment, I think, is this. Although in this Bill we make, in Clause 4, some amendment of the law relating to defamation, this particular change ought to be left to the alteration of the general law of libel. It will, I expect, be argued by the noble Lord, Lord Stow Hill, with all the eloquence at his command, that if this Amendment is carried it will still be possible for him, or the noble Lord, Lord Soper, or anyone else, to get up at Hyde Park Corner and, if he so chooses, to defame the dead; it will still be possible for those who like to try to make money by writing books which defame the dead to do so with impunity.
§ My Lords, I recognise that, but when one comes to examine it, is that really a reason for resisting this Amendment? It is surely rather an argument for extending what is proposed in this provision to the general law of libel and slander. Here, as I say, we are not creating an anomaly if we pass this Amendment. The anomaly already exists. You can defame the dead in speech and writing, but at the present moment you cannot do it on the stage. And I want to secure that there is some remedy if in 597 the future it is done on the stage, because all we are dealing with in this Bill is the production of plays and the performance of plays on the stage or television.
§ Is there a real need for this protection? Well, we have had a recent instance in relation to Sir Winston Churchill. I know that in many cases it is perhaps wisest not to institute proceedings, but in other cases it may be extremely desirable to do so. But if this Bill is passed in its present form, however grave the defamation, there is no redress available to the family and to the relations, who may be bitterly hurt and bitterly affected by what is produced for the purpose of earning money. I must admit that I feel pretty strongly about this matter, and I hope that the House will agree with me that we should not pass this Bill without some provision replacing the protection that now exists against defamation of the dead upon the stage. I do not myself think that the argument that there is no protection against speech and writing is really a valid argument for resisting this proposal. If this proposal operates and is right, it may be validly argued that it should extend to a wider field, but that does not seem to me to be a reason for resisting this Amendment. I beg to move.
Page 3, line 11, at end insert the said subsection.—(Viscount Dilhorne.)
§ 11.54 a.m.
§ LORD STOW HILL
My Lords, the noble and learned Viscount speaks always with the very greatest authority in this House, but I would, if I might respectfully do so, put before the House another view: because, although I always listen with the greatest interest to what the noble Viscount says, and am spellbound by his oratory, on this occasion, while spellbound, I am not convinced. The noble and learned Viscount told your Lordships that there was general assent for the proposal in a slightly different form which your Lordships considered in Committee. General assent, certainly, in disliking attacks upon the dead—people who cannot defend themselves; not general assent, if I may submit to the House, upon the proposal which the noble and learned Viscount put upon the Order Paper to remedy that.
598 He implied in his speech that there were really only two substantial defects in the Amendment which he previously put upon the Order Paper—one, that which was voiced by the noble Lord, Lord Goodman, and the other, the time limit—and that he has got over both of those hurdles and now presents to the House an Amendment which is altogether without fault. What really is the position with regard to this? In the speech that I made on that occasion I put what I still think is the main objection to the Amendment now on the Order Paper. The noble and learned Viscount rather skated over it, I thought. He said that no doubt it was true that I could join my noble friend Lord Soper and that we could go to Hyde Park Corner anti abuse the dead if we wanted to. That may be the case—though I am quite sure we should not want to. But it is very much of an under-statement. What the noble and learned Viscount seeks to do now is to pick the theatre, out of all manner of other publications, and to submit, on grounds which I should have thought were wholly inadequate, that we should single the theatre out and say that in the theatre you must not do this although in every other type of publication, written and spoken, there is absolutely no prohibition under the existing law. What logical justification can there be for that?
No doubt it is undesirable that the dead should be attacked when they cannot resist. Certainly that is undesirable, and we all dislike that sort of behaviour, as we dislike any other caddish behaviour. But if the law of defamation is inadequate at the moment, in that it does not stop that sort of caddish behaviour, well then, let the law of defamation as a whole be reconsidered and amended so as to fill up that gap which at present exists, if it is a gap.
I would submit to your Lordships that there is absolutely no ground whatsoever for saying that this should be done only in the case of the theatre. It really is no answer to say that it is a good thing to make a beginning with the theatre. It is the worst thing possible, or one of the worst things, I should have thought, to have a patchwork legislation which one cannot justify on any logical principle. It is not only a case of my noble friend Lord Soper and myself going to Hyde Park Corner; it is very far from 599 that. Anybody can write a book which may be a best seller and may sell all over the world in hundreds of thousands of copies or even millions of copies. The writer can make any disgraceful allegation against a dead person which he chooses to do, and at the moment the law provides no remedy. A book, after all, may not only be a trashy best-seller; it may be a book which will last for generations and centuries, and which will enshrine in its pages the reputation, damaged as it may be, of the dead person referred to by the writer. A book is a far more permanent form than the theatre, which may involve a performance lasting for three months, six months, or a week. A book may influence public opinion and smirch the reputation of a person who has died infinitely more than any play can possibly do.
Supposing one takes a play and finds that it refers in defamatory terms to a dead person, there is nothing whatever to stop a person under the existing law, or even if the noble and learned Viscount's Amendment is carried, from taking just precisely the script on which that play was based, printing it in a book of plays, distributing that book of plays in millions, and leaving that as a permanent record of what has been said. At the moment, the law is quite impotent. Is it not really quite absurd (I hope I do not speak in hyperbolic language) to say that you must not do that for a week or a fortnight or six months on the stage, but that if you like to print precisely the same words in a book, you can do that just as much as you like, and in as many copies as you like, and in a form which will be as permanent as you like? It seems to me, with great respect, that no logic can possibly justify a point of view of that kind.
If I am asked: "Has this problem been considered before?" I reply that it has. It was considered no earlier than 1948, when the Committee over which the late Lord Porter presided expressed a view precisely on this point. The Porter Committee on libel dealt with this matter and reported against any proposal to give a right of action to the estate of a deceased person. The Committee were not dealing particularly with plays, and I accept that the reference is primarily to historians and biographers, but in the 600 relevant passage the Committee decided that it is undesirable in the public interest that historians and biographers should he inhibited in expressing views about deceased persons.
It is a question of balance. Some writers of plays, some speakers, some orators at Hyde Park Corner, will abuse; but the great majority do not. They express freely and without inhibition such facts as they may be able to find on the existing evidence available. I commend the view of the Porter Committee. It really would be unfortunate if we amended the law generally as to defamation, and in particular the law of defamation as it affected the theatre, in such a way that a playwright, or writer, or orator, or pamphleteer, or writer of an article in a newspaper was prohibited from saying, for example, about a deceased politician that he was very lazy and negligent and inefficient; or of a doctor that he was a lazy doctor. All those things are defamatory. But if the Amendment which we are contemplating is applied to the theatre, then in the theatre they could not be said. In a book they could still be said.
But if the law of defamation is amended in general so as to prevent anyone saying such things, writers will not be able to criticise a person even on those modest lines. It was against that limitation on freedom of expression and criticism that the Porter Committee reported. Therefore, if we were discussing the question of defamation in a wider context, I think that your Lordships might well come down in favour of the view that the Porter Committee expressed. Whether your Lordships would or would not, I respectfully press upon your Lordships that it cannot conceivably be valid in argument to single out the theatre—the instrument of expression that is the least capable of doing permanent harm to the reputation of a deceased person—for this one purpose.
That is the general objection in principle which I have to the Amendment before the House, but I submit that there are also objections in detail. The noble and learned Viscount sought to answer the difficulty raised by the noble Lord, Lord Goodman, by putting in the last sentence of his Amendment which gives the plaintiff the right to damages—and indeed to punitive damages—if there is 601 a defence raised on the score of justification. But there are other defences that can be raised in a libel action: the defence of qualified privilege or of absolute privilege; or the defence of fair comment on a matter of public interest. In those cases, probably by implication, the defence is agreeing that it cannot justify the alleged defamatory statement on the ground that it is true, but is raising another and more technical defence. On what basis of justice could it be said that a defendant should pay damages if he claims that what was written is true but should be immune from the risk of paying damages, possibly punitive damages, if he raises another and more technical defence? For that reason it seems to me a bad Amendment, and unfair.
Incidentally, I do not see how it could be accepted in its present form. For some reason on which the noble and learned Viscount will be able to inform your Lordships better than I can, he has omitted a widower. Why a widower should not be allowed to sue and a widow can, I do not know. That is a small point, but I put it before the House to show that the Amendment is technically incomplete and inadequately drafted. It is unfair in that it singles out the defence of justification, in which at least a person who has committed himself to a defamatory statement has the courage to try to show that it is true, and gives an advantage to those who hide behind more technical defences. Not only is it badly and unfairly drafted, but it is wrong in principle to single out the theatre for this visitation and leave all other people free as they are at the moment to disseminate libels on deceased persons.
§ BARONESS HORSBRUGH
My Lords, may I ask the noble Lord whether the widower would not come under "personal representative"?
§ LORD STOW HILL
My Lords, the widower may not be the personal representative. An aunt, a brother, a sister, or even a complete stranger, might be the personal representative. May I say with great respect to the noble Baroness, that the answer is in the negative.
The concluding observation I want to put before your Lordships is that we have to measure the need for an Amend- 602 ment like this by the likely extent of the mischief against which it is to operate. We can test it only by reference to writings other than plays. How far Jo we find, as a matter of actual experience, that there are constant scurrilous and caddish attacks on deceased persons? There is plenty of criticism of an unfavourable character about deceased persons, based on research, the expression of genuine opinion by writers, historians and biographers. No doubt if there is freedom there must be the same sort of thing on the stage. Why should there not be? Provided there is an attempt to express a bona fide view, even if a wrong one, it is in the interests of the general extension of knowledge and the general exploration of ideas that that should be permitted.
The noble and learned Viscount is seeking to inhibit it on the stage only. For those reasons, I would sincerely hope that the noble and learned Viscount, on reflection, will not think it right to press this Amendment to a Division, and, if he does, that noble Lords in all parts of the House may think that the case for the Amendment is not made out.
§ THE EARL OF SWINTON
My Lords, we have heard two speeches of great ability and force from two of the greatest advocates in the House, both feeling, I am sure, equally sincerely the rightness of their points of view. I should like, as a common man, if I may say so, to put one or two considerations to the House, which I hope may lead them to support my noble friend Lord Dilhorne. We have been told by the noble Lord who was Lord Chamberlain that when he was censor of plays—and he was an extraordinarily good censor—he made it a rule to disallow libels on the dead such as would be prevented by this Amendment. He had power to do that, he did it and it was generally accepted by everybody concerned. I think it was absolutely right. One remembers the case of Peter Wright who was sued for libelling Lord Gladstone—I beg your Lordships' pardon, Mr. Gladstone; he always refused to be elevated—and the extraordinarily effective defence that was put up. That action failed.
It is said that we ought not to deal with this here, though it is an admitted evil, and that we ought to wait for the whole law of libel to be reformed. When 603 is that going to be done? Nobody knows. The Government surely have a sufficiently large programme in front of them not to promise to saddle themselves with a Bill for reforming the law of libel. It may never be produced, or may certainly not be produced in the lifetime of this Parliament.
§ LORD ANNAN
My Lords, may I interrupt to say that I understood from the speech made by my noble friend Lord Stow Hill that the law of libel was reformed under the chairmanship of Lord Porter.
§ THE EARL OF SWINTON
My Lords, I speak subject to correction but, after all, here are two great lawyers who have spoken on the subject. The law certainly was not reformed in the way proposed by my noble friend Lord Dilhorne, which is being opposed by the noble Lord, Lord Stow Hill. If the noble Lord, Lord Annan, will forgive me saying so, his intervention is completely irrelevant, because I am addressing myself to the present proposal. If this matter had been considered in another place and turned down there I should not be supporting it to-day. As I understand the position, it was never considered when the Bill was in another place and it is certainly right that we should consider it here. I would venture to say that although there may be all the anomalies which the noble Lord, Lord Stow Hill, has said—that it would not apply to the published book but it would apply to the play—nevertheless if you right a certain wrong to a certain extent that surely is better than not righting the wrong at all.
Why should we wait? Why should we not now pass this Amendment? I most sincerely hope that the noble Lord will accept it. Indeed I go so far as to say that although there are all these anomalies, if this Amendment is put into the Bill I think it may be an incentive to make the general reform which everyone agrees should come forward. Therefore, as a plain man who was once a lawyer and made his living by it, but who does not profess to deal with the niceties of the legal profession, dealing with it merely from the practical common sense 604 point of view, and basing myself on the great experience of the Lord Chamberlain when he was Censor, I hope the House will accept this Amendment.
§ 12.13 p.m.
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, in advising the House on what course to take with regard to this Amendment the Government have had to consider two questions. First, this being part of the law of defamation, if this was a general proposal of the law of defamation would the Government advise the House to pass or to reject such legislation? If the advice is to reject it, ought some exception to be made in the case of the theatre?
On the first point, about every 25 years there is a case of something being said about a dead man which is untrue and very wounding, and as a result of that there is a demand that there should be a law under which near relatives could clear the dead man's reputation. I remember the Gladstone case very well, because I was devilling as a young barrister for one of the barristers in the case. But as soon as this has been carefully considered the general opinion has always been against it. There are many difficulties: which relatives? For how long after a man's death?
As my noble friend Lord Stow Hill has said, it was carefully considered by the Committee of which the noble and learned Lord, Lord Porter, was the chairman, and they said this:The essence of civil proceedings for defamation is the damage caused to the reputation of the plaintiff. It is, therefore, difficult to see any logical basis upon which to found a proposal that the relatives of a deceased person should be entitled to bring an action for statements defamatory of the deceased alone. If such statements are also defamatory of the living, they are, of course, actionable under existing law. It would be equally difficult to find any sufficient justification for granting such right of action to the personal representatives of the deceased. The basis for a right of action on the part of personal representatives is the injury suffered by the estate of the deceased: and his estate cannot normally be damaged by defamatory statements made after his death.The essentially personal character of a man's right to his good reputation and of the action for defamation which exists for its protection was recognised in 1934 in the Law Reform (Miscellaneous Provisions) Act. which excepted actions for defamation from those categories of personal actions which survive for the benefit of the estate of the 605 plaintiff. We do not think that a sufficient case has been made out for a departure from this principle.The Committee then ended by saying:Historians and biographers should be free to set out facts as they see them and to make their comment and criticisms upon the events which they have chronicled. But to produce the strict proof of the statements contained in their writings which the English law of evidence requires becomes increasingly difficult with the lapse of time. If those engaged in writing history were compelled, for fear of proceedings for libel, to limit themselves to events of which they could provide proof acceptable to a court of law, records of the past would, we think, be unduly and undesirably curtailed.It is the view of the Government that nothing has happened since the Report of the Porter Committee which ought to lead Parliament to take a different view. But then it is said, "Oh yes, but the theatre is a special case". Of course the whole of the controversy about theatre censorship is based entirely on a difference of view as to whether the theatre ought to be a special case. This is the whole controversy. I remember saying, in the debate which led up to the appointment of a Select Committee, that if there was to be pre-censorship I would much sooner have the Lord Chamberlain, who did it so well, than anybody else. Of course the noble and learned Viscount, in the letter which he wrote to the Committee, made it plain that he was in favour of pre-censorship.
§ VISCOUNT DILHORNE
My Lords, the noble and learned Lord has referred to my letter. I have not got a copy of it with me, because I did not know it was going to be referred to. I wrote it on the invitation of the chairman, and I can speak only from recollection. My recollection is that I did not speak against the whole Bill. I thought that the choice was between letting the ordinary law take its course or pre-censorship, and that some might prefer to know where they stood before they produced a play. I do not think the noble and learned Lord has done justice to my letter, which he is now referring to without giving me any notice in order that I may refresh my memory.
§ THE LORD CHANCELLOR
My Lords, the letter written by the noble and learned Viscount is published at page 159 of the Committee's Report. I should not have thought that he would 606 want notice of his own letter to the Committee. He says in that letter:'Censorship' is a dirty word, but provided that a satisfactory system of censorship can be devised it has, to my mind, very considerable advantages over relying upon the enforcement of the law.Then he gives the various reasons why he takes that view, and it is a view which many people take in favour of pre-censorship. He says:Film censorship works very well. I do not think there has ever been a prosecution in respect of a film that has passed the censor.Then he deals with standards to be applied and various defects which he thinks would arise if the matter was left to the law:I do not think a satisfactory system could be devised whereby the producer could find out in advance that there had not been a prosecution.He goes on:Such a system would in effect amount to censorship by those responsible for the initiation of prosecutions. I do not think they are best qualified to act as censors.I think the noble and learned Viscount will agree, if he will re-read the letter, that the view which he was putting forward was plainly that the advantages of pre-censorship were greater than the advantages of the alternative. But this is the controversy which has run right through—why pick out the theatre?
§ VISCOUNT DILHORNE
My Lords, I am sorry to interrupt the noble and learned Lord again, but I have been handed a copy of the Report, for which I am grateful. It will be seen that I said:My conclusion is that if it is accepted that there must be some form of control it is better that that control should be exercised before the production of the play.That does not really justify the remark that I am completely opposed to this Bill, because I am not.
§ THE LORD CHANCELLOR
My Lords, I am glad to hear that; but the noble and learned Viscount was, I think, clearly in support of some form of pre-censorship, as are many. This has been the controversy and not all of the many—16, I think—members of the Select Committee started off opposed to pre-censorship. The noble Lord, Lord Goodman, I remember, made it plain in the House that he was not then of that opinion. But in the end, having considered the whole thing, the Committee 607 unanimously came down in favour of the main principle underlying this reform; namely, that if newspapers, books and all forms of art are left to the general law of the land and are not censored in advance, there cannot be any case why the theatre, and the theatre alone, should be differently treated. It is this principle which the Committee have applied throughout.
Ought there not to be a special law to protect the Royal Family? Well, there is a lot to be said for that, and for protecting people who cannot answer back. But so long as weekly newspapers can contain cartoons and lampoons which some of us may resent, and so long as certain newspapers can spend a great deal of their time attacking the Royal Family, what case is there for picking on the theatre and making some special law for the theatre? On this general question the Committee in their Report said:The question of a play representing in an invidious manner a living person or a person recently dead is more difficult. Although the Committee appreciate the force of the argument that distress might be given to the relatives of someone recently dead if his character is blackened in a stage presentation, they consider that it would be unjustifiable to legislate on this matter while no legislative restrictions apply to television, newspapers or books. They believe that the laws of libel and defamation will be sufficient to protect living persons.They go on to recommend that just as on television and the wireless words spoken are in law libel, so that should apply to plays; and that has been done, obviously quite reasonably. But otherwise, they say, the law should be the same for theatres as it is for all other forms of art.
There would, I think, in any case be practical difficulties about this Amendment in operation, but those were spoken to in Committee by the noble Lord, Lord Goodman, and have been to-day by my noble friend Lord Stow Hill. The Government would ask the House to reject this Amendment, therefore, on those two grounds; namely, first, that if it were proposed as a general amendment to our law of defamation nothing has really happened since the Porter Committee to invalidate the conclusions to which they came; and, secondly, that it is wrong to say that there ought to be a special law which penalises the theatre in a different way from those who write 608 books or newspaper articles. After all, a book is a permanent record, and one might have thought that if there were to be such a reform it should apply first and foremost to books which lie around for years, rather than to a rather more ephemeral art. There is no reason why we should pick out the theatre and treat it differently, as this Amendment does.
§ 12.23 p.m.
§ LORD LLOYD OF HAMPSTEAD
My Lords, while I feel some sympathy for the underlying purposes of this Amendment, it seems to me, with respect, that there are difficulties which are not dispelled even in the revised form of this Amendment. The fundamental question is whether this does not create an anomaly. I drew attention to the Porter Committee on the Committee stage, and there may be an argument for reconsidering the view expressed by the Committee in their Report in regard to this matter. After all, there is nothing final and definitive about that view, because although Parliament accepted it at the time there is no reason why it should not be reconsidered. But simply to change the law in relation to the theatre, this one special branch, and not to consider it in regard to the whole context of the law of defamation would surely be a most extraordinary kind of law reform—simply to deal with it piecemeal in that way.
One must bear in mind that the arguments in favour of the present law are fairly strong. So far as I am aware, all the Commonwealth countries and also the United States still adhere to the view that is maintained in this country. I believe that in France the matter, strangely enough, is still the subject of dispute as to whether the heirs can bring proceedings in regard to defamation in relation to a deceased parent or something of that kind. There the law even to this day apparently is not quite settled. So there is no consensus of opinion among civilised nations that this is an appropriate form of action.
Apart from that, there are features of this actual Amendment which, with respect, seem to me to create considerable difficulty, and some of them make it difficult for one to see why the Amendment is framed in this particular form. For instance, why should this right of 609 action be given to personal representatives? Presumably the only object of that is to benefit the estate. One would have thought that provision to be much too wide. Again, no limitation is imposed on the court in regard to the injunction that it can grant. It can therefore grant a perpetual injunction, which would mean that for ever after it would be impossible to re-present this particular episode or play on the stage. That would surely go far beyond the ten-year conception for which the noble and learned Viscount, Lord Dilhorne, was arguing, and would indeed constitute a grave restriction on the drama.
Then the matter of damages appears to raise quite difficult questions. After all, as the Porter Committee pointed out, it is the deceased's reputation which is affected, not the plaintiff's in the particular case. Therefore there is a strange anomaly in allowing a person to bring an action for damages in respect of somebody else's reputation. How would you assess the damages in such a case? The noble and learned Viscount seeks to deal with the difficulty raised by my noble friend, Lord Goodman, in regard to an interlocutory case by suggesting the possible grant of punitive damages. But here again one seems to be creating anomalies. To begin with, the whole question of punitive damages has been severely restricted by a recent decision of the House of Lords in Lewis v. The Daily Telegraph, which has laid down that punitive damages cannot normally be obtained in an action for defamation, but only in two special sets of circumstances which I need not trouble to mention in detail.
This provision, on the other hand, simply opens the door in this one particular branch of defamation to general orders for punitive damages. Indeed, it may be that the object is rather undesirable, because it is really a provision being put in in terrorem, to try to discourage people from putting into plays facts relating to deceased persons which they may know to be true and feel are true, but may have some possible doubts whether they could prove them for the purposes of a court of law. This punitive deterrent is held over their heads; whereas if they wanted to write the same facts in a biography or an article in the newspaper there would be no such deterrent.
610 I find it difficult to see how anybody can say that this is not a singularly anomalous situation, and not one which one would want to countenance by provision of this kind. Therefore I would urge upon the House that the appropriate way to deal with this matter, if there is a problem which deserves serious consideration, is for the Law Commission or some other suitable body in the course of its examination of the general proposals relating to the law of defamation to consider this question, to reconsider what the Porter Committee said upon it, if there is strong feeling upon the matter, and decide whether there ought to be some general change. But to alter it simply in relation to the theatre in this way would, I venture to submit, create so many anomalies that it cannot be rationally justified.
§ LORD CHORLEY
My Lords, I would support what my noble friend Lord Lloyd of Hampstead has just suggested that this matter should be referred to the Law Commission. I have a great deal of sympathy with this Amendment, and if it were not for the fact that it raises these anomalies I should be very tempted to support the noble and learned Viscount, if he decided to divide about it. I always thought that the view of the Porter Committee was, as it were, brought within a much too narrow conception of what the law of defamation ought to be in cases of this kind. My noble friend Lord Stow Hill, I think very properly, used the word "caddish" for this type of libel. It really is one of the most caddish things one can imagine, and it should be possible for one to deal with it. It might be that in some of these cases the matter could be dealt with as a criminal libel, because it might give rise to a breach of the peace and in that way come within the criminal law.
Nevertheless, this problem of defamation of the dead is a very special problem. I do not think it is met by damages. I quite accept the view that it is absurd. On the other hand, it ought to be possible to stop it by means of an injunction. That is the obvious way, as the noble and learned Viscount said. But do not all these problems mean that this whole question should be looked at again in a wider context than the rather narrow legalistic one which I feel the Porter Committee brought to bear upon 611 it? Would not the new Law Commission—which is the body set up to look at the law in the context of the requirements of the modern world—be the right organisation to look at it? I hope that the noble and learned Lord on the Woolsack, who is in charge of matters of that sort, may decide to refer it to the Law Commission, and that until that has been done the noble and learned Viscount will withdraw his Amendment.
§ LORD GOODMAN
My Lords, if it were simply a question of the principle of this Amendment, I do not think anybody in your Lordships' House would fail to support the noble and learned Viscount in this proposal. But virtuous indignation is not a wise counsellor and the fact that people are doing things which are caddish, disagreeable, objectionable, or abominable, is often the test of a true and free society to permit them to do them. I believe that this is a matter that must be left to a healthy climate of public opinion. I do not believe this can be, or ought to be, dealt with by legislation. I believe that, in the end, if wrongs are done in this way posterity will redress them; but I believe that once a man has died his reputation must remain in the hands of history.
There are, it seems to me, insuperable objections to trying to deal with a matter of this kind. I may say that I greatly respect the motivation of this particular Amendment, and I realise why, on the contemporary scene, it has been brought about. I feel that it is based on a principle which might involve a very dangerous erosion of one of our most valuable liberties. I think the right to say what we want about people, and to say it with the utmost freedom, is something that has been arrived at after a most careful determination through history and through precedent of the area of control or regulation that ought to exist.
If I may venture to say so to the noble Viscount, the whole of this Amendment bristles with virtuous indignation. The anomalies and errors in the Amendment suffered, I thought, rather an unduly severe castigation at the hands of the noble Lord, Lord Stow Hill. Nevertheless, it is unworkable because it has not been thought out. A principal objection, in my view, is the identity of the persons 612 who are to have the relief—widows, children and personal representatives. To provide for relief to personal representatives might well be an absurdity. A personal representative may be a man representing the creditors of the deceased. It is very difficult to regard as other-wise than an absurdity a situation in which a man's creditors are seeking to obtain damages in order to pay his debts through a vindication of his reputation. With the noble Lord, Lord Lloyd of Hampstead I think that the personal representative is a very strange choice of a plaintiff in such cases.
As to widows and children, may I say, after too long an experience as a libel lawyer, that I have frequently found that a deceased person suffers worst at the hands of his own relatives, and some of the most extreme cases of defamation of the dead that I have come across have come precisely from the widows and children of the deceased. We are asked to envisage a situation in which a child or widow is busily defaming the deceased and the unfortunate personal representative is trying to restrain them. This is unworkable. I should not like to give instances in the House of innumerable cases of books and articles published by widows and children of deceased persons which have been thoroughly defamatory and objectionable. One cannot, unhappily, say that the reputation of a man is safe in the hands of his family. Monetary rewards, motivations of jealousy and hatred, and so forth emerge after death. This list of persons who might bring an action is thoroughly unselective and unconsidered. On that ground alone I would say that this Amendment must be regarded as unworkable.
There are other objections, as the noble Lord, Lord Lloyd of Hampstead, has pointed out in relation to damages. Why should damages in this instance be punitive? One is here apparently imposing a special threat to prevent people from saying something about the dead when it would not necessarily exist if that person were living. I think the fact of the matter is that we must leave these questions to be dealt with on a basis that decent people will behave in a decent fashion. On the whole, we believe that we live in a decent society, and I believe that to attempt to legislate for matters of good taste and social conformity is a great mistake. I think 613 it would be an error for this House to seek to do so, and, sympathising as one must with the spirit of this Amendment and the motivation behind it, I earnestly hope that the noble and learned Viscount will not press it to a Division.
§ 12.37 p.m.
§ BARONESS GAITSKELL
My Lords, the Amendment of the noble and learned Viscount is rather attractive to me personally. We all know what happens after the first wave of generous obituaries, whether they come from those who genuinely admired the dead man or woman or from those who had attacked him meanly or underrated him and were making reparation. There is a great wave of generous comment. But gradually this wave subsides, and the small meannesses, perhaps the false comments, creep in. During my husband's lifetime I often longed to leap into litigation. I was always feeling indignant about something or other that somebody had said—something with which I disagreed, or which I felt was utterly false; but in politics one has to take all, both during a man's lifetime and after his death. I was very moved by the dignified detached attitude of the Churchill family when they took no action against that play by a Swiss playwright—who persistently seems to go in for dredging up the basest motives of human actions. And the play was finally put on, I believe.
On balance, therefore, I am against this Amendment of the noble and learned Viscount, although I still hope that one day I shall vote for one of his Amendments. I am against it because I believe that it leaves out 90 per cent. of the fields in which this kind of defamation occurs—that is to say, in articles, in newspapers, and in books. I feel that I must come down on the side of defending the right to express an opinion, however much I personally disagree with that opinion.
§ LORD STRABOLGI
My Lords, may I say how much I agree with the speech of my noble friend Lady Gaitskell, which moved us all. Like my noble friend, I have every sympathy with the families concerned, but the needs of historical objectivity should be paramount. As my noble and learned friend on the Woolsack has said, why single out the theatre 614 when books or newspaper articles are not included? If something inaccurate is written, it is up to someone else, if they wish, to write another play or book, giving an opposing view. The truth comes out in the end.
One of the reasons why I have, supported this Bill all through, and why I spoke upon it when it was originally introduced to the House was 'that I strongly disagree with the pre-censorship responsibilities which were carried out by the Lord Chamberlain; although I have every respect for the way they were carried out. I objected strongly then, and still do, to the action which was taken over The Representative, which was a play about a dead figure, under which the theatre was required to put into its programme a long foreword giving an opposing point of view, although that did not have to be included in the book which appeared later on the same subject. In fact, the book carried a completely different, long, historical introduction about the Nazi period which was even more horrifying than the play itself. The families of well-known people have advantages and disadvantages. They are in a special position. It is sometimes difficult and impossible for them to feel detached. But the reputation of a dead person belongs, as the noble Lord, Lord Goodman, has said, to history, and the families of the deceased must learn to take the rough will the smooth.
§ LORD TREFGARNE
My Lords, I should like to support my noble and learned friend Lord Dilhorne. The argument against this Amendment appears to have two principal tenets: first, that we ought not in general to amend the law of defamation as it at present stands; and that, even if we do alter the law of defamation, there is no case for singling out the theatre to bear the first spearhead of our attack. But is there not a case for singling out the theatre at this time? As I see it, the function of the theatre is far more to entertain than to inform. We do not go to the theatre to listen to the latest news or to hear the latest information, unless we go to see Mrs. Wilson's Diary. We go to be entertained and possibly to observe art form, if you like, as put forward by the playwright. It seems to me that the playwright has particular responsibilities 615 not to tread on the sensibilities of persons long or recently dead, but more particularly recently dead. For that reason I support the Amendment.
§ BARONESS SUMMERSKILL
My Lords, I should like to thank the noble Viscount for his Amendment because I believe that it is motivated by his gallantry. He has on other occasions in this House shown that he has rather a warm corner in his heart for women. I cannot help recalling that some years ago he helped me to introduce a Bill into this House; but I will not go into details on that. I am sure that the noble and learned Viscount is very concerned with the feelings of the widow and the children. He must be particularly concerned with this, because he is limiting his Amendment to ten years. I should say that he is particularly concerned with the widow, because after ten years there could obviously be surviving children.
May I remind him that the woman he is seeking to protect probably has been the wife of what is known as a public man? She has been exposed to the limelight for many years. She has read and heard perhaps the cruellest criticism of her husband and has undoubtedly become pachydermatous. In order to survive, she must have developed some kind of resistance to these constant attacks. She has become philosophical and also, if she is a wise and loving wife, she is always quite certain that her husband is right, and after his death she is equally certain and is equally protected by this confidence in her husband. Though the noble Viscount has been motivated by gallantry, as I am sure he has in seeking to protect a certain woman, this woman, I am sure, is not as sensitive as he might think, because she has had to endure criticisms over many years. Therefore I feel that this Amendment should not be supported for the reason that it introduces an anomaly which can never be justified.
LORD ST. OSWALD
My Lords, does not the noble Baroness think that, if the widow is so pathologically pachydermatous, she would in any case be unlikely to bring an action?
§ 12.47 p.m.
My Lords, I think that I am in agreement with all your Lordships in being in sympathy with the intentions of this Amendment. I seem to be in a minority in also agreeing with what it seeks to do, in spite of the extremely lucid fire which has been poured upon it from all quarters. Without going into the question of gallantry to pachyderms, I feel that the important point is whether it is strictly correct to say, as the noble and learned Lord on the Woolsack said, and as I think the noble Lord, Lord Lloyd of Hampstead, also said that we are making an exception in the case of the theatre or whether we are busy keeping an exception. It may be quite wrong to keep an exception, but the point which influences me is that if we have an anomaly, however absurd, which gives protection which many people think would be introduced, though we do not know when, in a general view of the law of libel, is it not a rather different matter to preserve, in this particular Bill, only one of the good functions which the Lord Chamberlain, under somebody like the noble Lord, Lord Cobbold, and others, was able to carry out, and which now nobody will be able to do?
If I may improvise an analogy, if one is carrying on a policy of de-afforestation in this country in the hope of replanting shortly or later on, to keep an occasional green belt or an occasional tree which gives some protection to somebody is better than to say, "We must be fair. Large parts of Surrey have been ruined and raped. We must allow others to be ruined and raped. We must have justice in the sense of equality, and therefore if we cannot at the moment even up we shall even down." That seems to me to be the principal argument which, with great respect, I do not believe has been answered to my satisfaction by any of the noble Lords who have spoken.
I shall not go into such details. The noble Lord, Lord Stow Hill, suggested that it would be an anomaly for a play not to be allowed to be acted, because it could then be printed. I do not think many of us read plays which are printed but which have not been acted. It has also been suggested that a play can do very much less harm to a reputation than anything else. In view of Shakespeare's play about Richard III, I am 617 not sure that I agree with that suggestion. I have tried to state the reason why, if this Amendment is pressed to a Division, I shall still feel inclined to support it, subject to anything the noble Lord, Lord Stow Hill, may say.
§ LORD LEATHERLAND
My Lords, may I as a layman, but one of those laymen who as a newspaperman has had much to do with the law of libel in his lifetime, utter just three sentences? I think there is a tendency during a man's life to paint a picture of all his virtues, and the truth comes out only after his death. Of course, we get that one-sided picture painted in our publications largely because of the fear of the law of libel which hangs over every author and every newspaper producer.
The only instance I want to mention is that of Joseph Stalin. During the lifetime of Joseph Stalin, we were told that he was a great man, a great patriot: that he embodied practically all the virtues as a Russian is inclined to see them. It was not until after his death, when the freedom to utter became absolutely unfettered, that we learned the real truth about him. I think freedom has to prevail, and I think there is still a role in the world for the iconoclast.
§ LORD ANNAN
My Lords, may I give one instance, before the noble and learned Viscount replies on his Amendment, to show why I feel with reluctance that we should not agree to accept it? The reason is that when we see an Amendment of this kind put down, it is our natural instinct to think of the most slanderous and unpleasant things that can be said about the dead and to feel that these should not be allowed. But, of course, if this Amendment were to be passed it would also include those things said about the dead which are not gross at all, but which stem from a difference of opinion; and a difference of opinion which, in the man's lifetime, might well have been held to be libellous.
If one thinks of Lytton Strachey's four famous portraits of Cardinal Manning, Dr. Arnold, Florence Nightingale and General Gordon, those would undoubtedly have been libellous in the lifetime of those people, and yet would it really be to the advantage of this country had we not had that remarkable book written? In the course of time no one 618 accepts Strachey's estimate of those four great figures, but this is something which comes out in the course of time. As regards a play, a play is not merely an entertainment. It can also be a passionate vision of life and of the injustices in life; and in putting forward the vision of an injustice it may well be that somebody who is dead is libelled in the technical sense. But I very much hope that we shall bear in mind that if we pass this Amendment we shall be inhibiting playwrights from a very legitimate form of expression.
§ VISCOUNT DILHORNE
My Lords, with that last observation of the noble Lord I simply cannot agree. We should not be permanently inhibiting them, and it is not the case that every publication of a libel leads to a libel action; otherwise, the courts would be even more congested than they are at present. I think it is true to say that every possible argument, be it small or be it large, has been advanced against this Amendment. But I should like in commencing my reply to say something, first of all, about the letter I wrote, to which the noble and learned Lord the Lord Chancellor referred. I was surprised that he did so, because it did not seem to me to have any relevance at all to this Amendment. I there expressed a preference for pre-censorship, as it is called, or control in advance, because I thought that the advantages lay with the producers in knowing where they stood before they produced with the risk of prosecution. But I did not feel that at all strongly and in that letter I indicated, I think quite clearly, that it depended upon whether a satisfactory system could be devised—and of that I have very considerable doubts.
It is not right to say that I am wholly against this Bill—I am not. But I cannot help thinking that perhaps the noble and learned Lord the Lord Chancellor referred to that letter because he was under the impression, or had the suspicion, that this might be an attempt by me in some way to filibuster this Bill. This is no such thing. I put down this Amendment because, as a result of the change that is being made, I think a gap is left that we ought to fill.
The noble Baroness, Lady Summer-skill, said some very nice things to me, which was very remarkable, and I shall 619 treasure them. It is an unusual experience. But I was not thinking so much of the sensitive woman. I quite agree that the wife, and indeed the widow and family of a person prominent in public life, all have to develop a fairly thick skin, and what can be said during the lifetime about a man may be very wounding to the feelings of his family. I am not really concerned with that. I am concerned with this case of the publication of something—if I may put the extreme case to the noble Baroness—which is so grossly defamatory that if published during a man's lifetime he would have sued, and with the people who try to make money by publishing defamatory things saying to themselves: "Now he is dead we can publish this. We can have this play. We can put it on, grossly defamatory as it is, without regard to the feelings of the family, and we can do it with complete impunity." That is what I should like to try to remedy; and I am particularly concerned with the feelings of the family in the years immediately after the death.
The noble Lord, Lord Stow Hill, said that a book can do much more permanent harm. That may be so, but it is the period immediately after the death, when a play will probably draw a bigger audience than it would draw ten years or more after the death, that I am concerned with. That is why I have limited the period in my Amendment to ten years. Despite all that has been said, I feel that if we let this Bill go forward—and we are not singling out the theatre for special treatment different from what it has to-day—we are giving the theatre a liberty to defame the dead which it does not enjoy at present. That is the change that we are making, and I do not think we ought to give—at least for a limited period—liberty to defame the dead, because of the injury that will be inflicted and which can be extremely wounding on members of the deceased's family.
Great weight has been placed in argument on the Porter Report, dealing with the law of libel generally, and I agree very much with the observations made by the noble Lord, Lord Chorley, to the effect that that was rather a narrow approach. I must confess that I have not refreshed my memory of it, but I rather 620 doubt whether that Committee applied its mind to this particular problem, bearing in mind that at the time the Committee sat there was no question, with the Lord Chamberlain exercising his powers, of this particular problem arising. I should hope, with the noble Lord, Lord Chorley, that the whole position would be reviewed by the Law Commission. I must confess that I was rather disappointed by the reply of the noble and learned Lord the Lord Chancellor, because although he told us what the Government's views were, he never told us that this problem, which is to a great extent a legal problem, had been or was going to be considered by the Law Commission. I myself hope that one result at least will flow from this debate: that this will be one of the topics which they will be asked to consider in relation to the whole field.
My Lords, I want to make this point. I am not seeking to provide for a permanent ban on the production of a play. Nor would I seek to provide for a permanent ban on the publication of a book. I am trying to deal solely with the short period—it may be that ten years is too long; I am not wedded to that—immediately after death, when the feelings of the family may be exacerbated by what is produced upon the stage. Indeed, exacerbated they can be by what appears in the Press and what appears in books; but for that, my Lords, there is at present no remedy. The question before this House today, as I see it, is whether we feel that there should be some right of action for the members of the family in relation to the production of plays. I feel that there should.
Technical objections have been raised by the noble Lords, Lord Goodman and Lord Lloyd of Hampstead. The noble Lord, Lord Goodman, has said that we must leave it to decent people to behave in a decent way. That, if I understand it correctly, is an observation which is very much against the interests of all lawyers, because really it is a claim for the complete abolition of the law of libel and slander. It is only because not all people behave decently, and not all people are decent people, that we need these laws at all. Although this Amendment may have defects in form, I myself feel that it would be an improvement to make this limited change in the law.
621 May I say one or two more words about the technical criticisms which have been advanced? The noble Lord, Lord Lloyd of Hampstead, referred to a case against the Daily Telegraph, and to the award of punitive damages. I will not enter into a discussion with him now as to the whole effect of that judgment, whatever it may be, but Parliament can say that punitive damages may be awarded. I thought the high-water mark—or perhaps the low-water mark—of the criticism was a suggestion that creditors would sue for damages for the benefit of the deceased's estate. Under the clause as it stands it is impossible to sue for damages at all unless there is a plea of justification put forward, and in this context a plea of justification stands on a very different footing from a plea of privilege or of qualified privilege, because here a defendant is saying, "However defamatory it is, what I am saying is true, and therefore you cannot grant an interlocutory injunction". If he likes to do that, then he ought to stand or fall upon whether he can justify; and if he cannot justify, having avoided the interlocutory injunction by putting forward that plea, it seems to me that there is a strong case for saying that the court should have power to award punitive damages.
Another objection was that if an injunction was granted it would be permanent. I do not accept that for one moment, because any court would see that the period within which such proceedings may be brought is a period of ten years, and I doubt very much whether any court would grant an injunction for longer than that period. Then, perhaps even more astonishing, there came the objection that I had not inserted the word "widower". I did not. I had not got it in mind myself that the possibility that a widower would fight a case was ever likely to arise, that he would want to bring such proceedings; but that is an amendment which could easily be made hereafter.
§ Then it was said that it is odd that the personal representatives should be given the right to sue. They are the personal representatives of the deceased, and cases may exist, it seems to me, where they would think that for the protection of the deceased's reputation and memory—the widow perhaps still living; it may be old and in ill-health—it would be better for them to be the plaintiffs on the record rather than the widow herself. It is simply for that reason that personal representatives are included: there is nothing sinister about it.
§ Whatever may be the technical objections—and there may be some; (I still await the day when the noble Baroness, Lady Gaitskell, will join me in the Division Lobby; and I still await the day when I am told that an Amendment I have drafted is perfect. Both things may happen simultaneously and they will be very enjoyable when they do)—I am not deterred by those criticisms. Because if we move an Amendment into the Bill it can if necessary be altered at a later stage, or even by a short amending Bill. But this Amendment raises a real principle.
§ I will conclude by saying just this. In my belief, this Amendment is necessary, in view of what is done is this Bill. It is not picking out the theatre for special treatment. It is saying that now we are abolishing censorship which protects the family of the deceased we should not remove, in relation to plays, all the protection which now eixsts, and that we should replace it by giving this right to the family which the deceased had up to the moment of his death to protect himself from gross defamation.
§ 1.10 p.m.
§ On Question, Whether the said Amendment (No. 2) shall be agreed to?
§ Their Lordships divided: Contents, 24; Not-Contents, 41.623
|Aberdare, L.||Fraser of Lonsdale, L.||St. Oswald, L.|
|Audley, Bs.||Horsbrugh, Bs.||Sempill, Ly.|
|Balerno, L.||Howard of Glossop, L.||Silkin, L.|
|Barrington, V.||Iddesleigh, E. [Teller.]||Somers, L.|
|Craigmyle, L.||Ilford, L.||Swinton, E.|
|Dilhorne, V. [Teller.]||Kennet, L.||Teviot, L.|
|Dundee, E.||Kinnoull, E.||Trefgarne, L.|
|Effingham, E.||McCorquodale of Newton, L.||Vivian, L.|
|Addison, V.||Faringdon, L.||Morrison, L.|
|Airedale, L.||Gaitskell, Bs.||Moyle, L.|
|Amherst, E.||Gardiner, L. (L. Chancellor.)||Norwich, V.|
|Annan, L.||Gladwyn, L.||Phillips, Bs.|
|Archibald, L.||Goodman, L.||Ritchie-Calder, L.|
|Balogh, L.||Greenway, L.||Rowley, L.|
|Beswick, L.||Hall, V.||Rusholme, L.|
|Buckinghamshire, E.||Hanworth, V.||St. Davids, V.|
|Burden, L.||Hill of Wivenhoe, L.||Shackleton, L.|
|Burton of Coventry, Bs.||Kinloss, Ly.||Sorensen, L.|
|Byers, L.||Leatherland, L.||Stonham, L.|
|Champion, L.||Lloyd of Hampstead, L.||Stow Hill, L. [Teller.]|
|Crook, L.||McLeavy, L.||Strabolgi, L.|
|Mitchison, L.||Summerskill, Bs. [Teller.]|
On Question, Amendment agreed to.
§ Clause 8 [Restriction on institution of proceedings]:
§ 1.15 p.m.
EARL AMHERST moved to add to the clause:
( ) On receipt of a complaint in respect of the publication of defamatory matter in the course of a performance of a play, the Attorney-General shall forthwith cause to be served on the persons presenting the performance of the play out of which the complaint arises a notice stating that he has received such a complaint and specifying the words or other part or parts of the play which are the subject of the complaint.
§ The noble Earl said: My Lords, as the Bill stands, it seems to me that the first time that a manager, an author or a director will know that a complaint has been registered against the play he is producing is when the Attorney General has decided to institute legal proceedings, which, I assume, means the issue of a writ. Before doing so, no doubt the Attorney General will have to make comprehensive inquiries, not least of which will be to determine whether the complaint is frivolous, malicious, or, indeed, worthy of proceedings. That must take a certain period of time. On most occasions during this period the people concerned with producing the play will doubtless enter into various commitments, financial, in terms of work and in terms of advertising. They will be doing this not knowing that possibly the Sword of Damocles may be hanging over their heads. For example, let us suppose that the play is being tried out in the Provinces. It is a public performance and anybody witnessing that performance can register a complaint against the play or part of it, or a scene in it. Meanwhile the management may well be 624 entering into any sort of commitment, changing the cast, repainting the scenery, building stage properties, renting a London theatre, and so on.
I put down this Amendment with the object of closing this gap, so as to give the Attorney General the chance, as soon as he has received a complaint, to inform immediately the people complained against of the nature of the complaint and the details of it. That will give them the opportunity of meeting the complaint by perhaps amending the offending passage, scene or script, of rewriting it or, if they do not choose to do that, of proceeding at their own risk and awaiting the outcome of the prosecution. I am sure that your Lordships all know that the production of a play is expensive and risky and that you would not wish to do anything to increase that risk unless there was a good reason for it. I think there is a kind of precedent for the sort of notice that I am asking, for in the Rivers (Prevention of Pollution) Act 1961. Section 11(1) of that Act reads as follows:
… proceedings … shall not be taken until the expiration of one month after the notice has been given to the offender that the taking of such proceedings is being considered.
I hope, therefore, that my Amendment will meet with the approval of the House. I beg to move.
Page 5, line 5, at end insert the said subsection.—(Earl Amherst.)
§ LORD STOW HILL
My Lords, the advice I would offer to the House is, I am sorry to say, not to accept this Amendment. I do not wish to speak in pejorative or disrespectful terms, but I think it fair to say that all that the Amendment requires the Attorney General to do is to serve as a post office. 625 It does not require him to decide whether to prosecute before he has to send on notice of the complaint. The Amendment says that when he gets a complaint he is "forthwith" to send that on to the person against whom the complaint is madespecifying the words — which are the subject of the complaint".I should have thought that this proposal has several objections in its way. May I first state what I think is a major objection? When one looks at the definition of "obscenity" contained in Clause 2 of the Bill one finds—and this is, after all, crucial to the whole structure of the definition—that a play is only obscene iftaken as a whole, its effect was such as to tend to deprave and corrupt …".It does not depend on the use of a particular word or passage or scene. It means that when you consider it as a whole it has the tendency "to deprave and corrupt" which is required for the offence to be committed. In those circumstances, I do not quite see what is meant by notice of the particular words complained of. The only notice that could have any meaning in the terms of the Bill is a notice that the play as a whole is regarded as an obscene play. Suppose an objectionable word is used in the course of it. It would be of no service to say that that objectionable word had been the subject of a complaint. The relevant test in that case is if you add all the words, all the passages, all the scenes together, and the effect produced by the play, has the play the tendency which is described? Therefore, I should have thought that, to begin with, the notice would be meaningless.
Secondly, I would ask the noble Earl: is it realistic? is it really the case that a playwright, or a person who produces and presents a play, could be in any real doubt as to what may form the basis of the complaint that the play is an obscene play? I do not wish to descend into details, but suppose, for example, there is a representation on the stage of particular behaviour which is obviously possibly likely to offend against notions of decency. Can a playwright really be in any doubt that that is the passage in the play which could conceivably cause the play as a whole to 626 have the tendency objected to? suppose he represents a love scene between two people in the first scene of the second act, and that all the rest of the play is not such as could give rise to objection. Is it really realistic to think that he could have the least doubt in his own mind that if the play as a whole is to be regarded as having the tendency in question, it must be because there is that love scene in the first scene of the second act?
I should have thought, therefore, that the second objection which could be urged against the proposal is that it assumes an unreality. It assumes that the person against whom the complaint is made could be in real doubt as to what it is that he has put into his play which gave rise to complaint. So in the event I think there is not much point in the proposal. As I said, it can only refer to the play as a whole because that is the relevant question; and, secondly, it would be a notice passed on by the Attorney General to a person who does not need it because he almost certainly knows already. I should have thought it wholly unrealistic to think of a playwright or producer, if he is told that his play is disliked on the ground that it infringes the provisions in Clause 2, wondering what it is that has claused that to be said. He will know better than anybody else. There may be the very rare case in which he will not know, because he is singularly insensitive or singularly unable to discriminate between what could and what could not give rise to complaint against him. But in 999 cases out of a 1,000 the playwright will not want particulars of the matter complained of; he will be fully cognisant of it without any such particulars.
My third objection is that it is wholly contrary to precedent, and wholly contrary to accepted notions of the Attorney General's Office, to expect him to act, as I said, as a post box. All that the Amendment requires him to do is, I suppose, to say to his Permanent Secretary: "Open the mail in the morning, and if you find a complaint against a particular play put it back in the envelope and re-address it to the person who directed or produced the play." That is all the Amendment requires. I cannot, with respect to the noble Earl who moved the Amendment, see any real advantage in asking for that purely 627 mechanical process, the forwarding on of letters, to be erected into a duty incumbent upon the Attorney General. For those reasons, I would ask the House to say that there is no adequate case made out for this Amendment.
I suppose one could go a little further. I could, perhaps, also raise the objection Which I raised on a not wholly dissimilar Amendment proposed by the noble Lord, Lord Goodman. In the case of Lord Goodman's Amendment, the proposal was that notice of the complaint should be given after the Attorney General had considered (I think I am roughly paraphrasing his proposal) and had made up his mind that this was a case in which he ought seriously to consider a prosecution. That was Lord Goodman's proposal. That element in Lord Goodman's proposal is lacking in the proposal at present before the House. Lord Goodman's proposal, after all, was one designed to give the playwright, may I call it a locus pœnitentiœ. I objected to it rightly or wrongly on the ground that it was not right if the playwright had committed the offence that he should have that locus pœnitentiœ. He was guilty or he was not guilty. That was the argument I used. The noble Lord did not accept it and it may be right or it may be wrong, but this Amendment has not even got that—may I use the word with all respect?—utility about it.
All the Amendment does it to make the Attorney General's office a post box. If this Amendment were accepted, the Attorney General would have to readdress the letters. He would not have to form a judgment on the nature of the complaint and would have to do nothing whatever about it. It might be a most ridiculous and scurrilous complaint which normally would be thrown straight into the waste paper basket. But I suppose it would have to be put into another envelope, marked "On Her Majesty's Service" and forwarded to the person against whom the complaint had been made.
In a word, I submit to your Lordships that no case has been made out for any Amendment in this form. As I say, it is cognate to the Amendment of the noble Lord, Lord Goodman, which this House has not accepted, and I submit it has very much less to sup- 628 port it than, if I may say so without arrogance, the Amendment proposed by the noble Lord, Lord Goodman. I therefore advise the House to reject it.
§ LORD AIREDALE
My Lords, I am disappointed that the noble and learned Lord, Lord Stow Hill, did not deal with the part of the argument of my noble friend that people going through the expensive business of putting on plays deserve to be given some sort of "red light" when there is the prospect that they are going to fall within the mischief of the Bill if they proceed. It is a very expensive business to put on plays, and the moment there is some likelihood of proceedings being taken under this Bill surely it is only fair that the person having all this financial expense before him should be given some sort of red light, because otherwise, as my noble friend said, it would be extremely unfair to people putting on plays.
§ LORD STOW HILL
My Lords, I believe in your Lordships' House it is customary for a speaker to ask permission to speak again during the Report stage. If I may, perhaps it would be for the convenience of the House if I answered what the noble Lord, Lord Airedale, has just said. The point I was seeking to make was that there is no requirement in the Amendment that there should be the least likelihood of a prosecution. There could be the most utterly frivolous and absurd complaint about a play, which anybody who read it would throw in the waste paper basket at once. There might be hundreds of complaints to which no one with the least common sense would pay the least attention. Nevertheless, the effect of the Amendment is that all the complaints would have to be solemnly re-addressed and forwarded on to the playwright. That is why I submitted to the House that there was little purpose to be served in accepting the Amendment.
§ 1.29 p.m.
§ LORD LLOYD OF HAMPSTEAD
My Lords, I am puzzled about the course this discussion is taking. It seems to be on the basis that this Amendment is dealing with obscenity, but if one reads the Amendment one finds that it concerns a complaint in respect of the publication of defamatory matter. I do not know whether that was intended by the 629 noble Earl who moved the Amendment, but in taking it on its face value this Amendment asks that the Attorney General should deal with complaints relating to allegations of defamation which I should have thought are clearly a private matter, and that it would be for private persons who feel that they are defamed by something in a play to take such action as they saw fit. It would be an extraordinary thing, I should have thought, if the Attorney General was asked to tell people whether they had been privately defamed and whether they ought to engage in litigation as a result. It may well be that this is a misconception and that it was really intended to say obscene matter, and it is on that basis, I believe, that my noble friend Lord Stow Hill has dealt with the matter. On that aspect I would only add this: that while the Amendment in the name of the noble Lord, Lord Goodman, and myself attempted to deal with the problem of giving notice in relation to a threatened prosecution, it does not seem to me, with the greatest respect to the noble Earl, Lord Amherst, that this Amendmentt, even if it used the word "obscene" instead of "defamatory", would meet that sort of situation.
§ LORD MITCHISON
I rise to defend the common postcard. No doubt it is going to be enlarged, but to suggest that all the parts of a play which are obscene can be put on the back of one postcard seems to me to be demanding a bit much from the usual handwriting. I could not get it on in my handwriting. The play is presumably like the curate's egg, bad in parts. The whole may be obscene and the complaint may be about the whole, and undoubtedly it has to be looked at as a whole. But supposing the complaint is about Act 2 and Acts 1, 3 and 4 are all right. How are we going to get Act 2 on a postcard?
§ LORD GOODMAN
My Lords, I think we may be doing a slight injustice to the Amendment, because I think that perhaps its intentions are superior to its expression. From what I gathered from the speeches of the mover and the noble Lord, Lord Airedale, it has a rather similar intention to the Amendment which the noble Lord, Lord Lloyd of Hampstead, and I sought to move on Committee stage. And with Lord Airedale's remark I have total sympathy, 630 which was whether it is not possible to find some means of enabling the management or producers of a play to put the matter right before they suffer an irreparable loss. That is the real point of the Amendment.
I would venture to say this to the noble Lord, Lord Stow Hill. There was never any suggestion in my Amendment that the fact that this locus pœnitentiae should be provided would in any way absolve the management from liability to prosecution. If they had in fact perpetrated an obscenity they would be prosecuted for that. All this would do would be to give them an opportunity to continue to produce the play concerned by removing the offensive elements. I should have thought that for a skilled Parliamentary draftsman—and I am sure the noble Lord will remember that we private Members do our drafting in our spare time, and with the exercise of rudimentary talents—it would be possible to evolve a scheme of that kind which world be wholeheartedly welcomed by the theatrical profession. It would be a great reassurance to management. It would not compromise the principle of the Bill, and it would make it possible for the theatrical investor to feel a goof deal safer.
§ EARL AMHERST
My Lords, I am most grateful for what the noble Lord, Lord Goodman, has said. He has put into far better words exactly what I intended. I listened carefully to the noble Lord, Lord Stow Hill, and I appreciate the trouble he has taken. In view of everything, I think I had better leave it to the discretion of the House whether to accept the Amendment or not.
§ On Question, Amendment negatived.
§ Clause 9 [Script as evidence of what was performed]:
§ 1.35 p.m.
moved, in subsection (2), to leave out "and the next following section" and insert "Act". The noble Lord said: My Lords, I should like to deal with all three of my Amendments on the Marshalled List, the first in Clause 9 and the last in Clause 17. The first and third Amendments are consequential, and the "meat" of my business is in my proposed new clause after 631 Clause 10. With your Lordships' permission, I will deal now with this Amendment. I can deal with it very briefly because it is now the third time that it has come up before your Lordships' House, and on the last occasion, your Lordships may remember, I expressed the hope, and almost expectation, that I should be able to produce, with the help of draftsmen of the Home Office, some formula which would do what both I and, I think, everybody else who is aware of the circumstances really wanted, but recognising that there were great difficulties which crop up in the way of drafting. I have received valuable assistance, and I think that most of the points of criticism have now been met. I therefore hope that my noble friend will find it possible to accept these Amendments.
I would point out the differences between these Amendments and the earlier Amendments which I moved at Committee stage. The first addition is that any new editions of the script, which must still be surrendered to the British Museum, should no longer be counted. The script to be delivered to the British Museum will consist of the script of the first and unique first-night performance of the play. Again in order to limit the scope, in the present Amendment I am moving that only public performances should be considered in this connection. It also excludes printed and published plays from scripts and a new play is defined here as a play new in this country and performed in England for the first time. The amount of the maximum penalty fine for failing to carry out the provisions of what will be the Act has been reduced to £5. This is intended to bring it into line with the Copyright Act, where the fine is of the same amount. As I have said, the other two Amendments are purely definitions of terms in this Amendment. I think I have missed nothing. I beg to move.
Page 5, line 20, leave out ("and the next following section") and insert ("Act").—(Lord Faringdon.)
§ LORD STONHAM
My Lords, my noble friend Lord Faringdon said this was the third time we had discussed this particular subject. I should like to take 632 the opportunity to correct a slip which I made when talking on this particular subject in Committee, when I said that I understood that the Society for Theatre Research would be willing to help operate a voluntary system. I knew of their interest in the preservation of this material but I want to make it clear that it has been their contention that there should be a statutory obligation in the matter. What I said arose from information that I had about the interests of the Theatres National Committee in keeping this material together and from a suggestion made to the Society of West End Theatre Managers that it should make itself responsible for asking its members to send scripts to the British Museum or any other chosen body. I would express the hope that, whether we are to have a statutory or a voluntary arrangement, all theatrical organisations will play a full part in whatever system may be introduced.
In this connection I am happy to be able to make reference to correspondence which I have had with Mr. Emile Littler, the Chairman of the Theatres National Committee. He was first kind enough to send me a copy of a letter which he had sent on June 7 to my noble friend Lord Goodman, and in his covering letter to me he said:The Theatres National Committee are anxious that a complete record of all scripts played in the British Isles will continue to be available for reference and for posterity. During my career I have on a number of occasions been able to refer to the Lord Chamberlain for missing pages of dialogue in scripts of the past. It will be invaluable if the suggested Amendment after Clause 16 can be moved in the House.That, of course, was my noble friend's Amendment which was moved in Committee.
In a later letter of July 5, Mr. Emile Littler said:The Society of West End Theatre Managers has deferred taking any steps about making itself responsible for its members to send scripts of new plays to the British Museum pending the outcome of Lord Faringdon's Amendment. But I am sure that in any event managers will be happy to co-operate in this respect so that this valuable record of the living theatre is retained for posterity.It is my understanding, much as I welcome Mr. Littler's views and feelings in this matter, that the Society of West End Theatre Managers would prefer, as it were, compulsion in well doing.
633 I think it has been clear from the start that we have all been anxious and willing to support any reasonable arrangement that could be made to ensure, so far as we can, that the scripts of plays should be sent to the British Museum, but there have been a great many technical and other difficulties which I sought to point out when my noble friend moved his previous Amendment in Committee. I am bound to say that this new version of the old Amendment meets most of the practical objections that were raised when we discussed my noble friend's last Amendment—for instance, as to the actual nature of the obligation that it imposes. As I emphasised in Committee, if statutory obligations are to be imposed, carrying criminal sanctions, it is essential that those who are liable should be in a position to know exactly what the obligation amounts to. Here it seems to me that in limiting the obligation to—in effect—the script of the first night performance, we have a workable requirement, and one moreover that I do not think could be said to impose an unreasonable burden on the presenter.
For my part, as your Lordships know, I have been inclined to think that one would have to do without a statutory obligation at all. There is a good deal to be said for the view that the preservation of the raw material of theatrical history should be left in the hands of the theatres' own research societies. Nevertheless, on studying this Amendment I have reached the conclusion that it is one I can recommend to the House, if your Lordships are in agreement with the principle behind it.
§ LORD GOODMAN
My Lords, I should just like to say a word or two to convey the gratitude of many people to the Government for what has been said, and particularly to convey gratitude to the noble Lord, Lord Faringdon, for the resolute moderation with which he has persisted in what I think is an absolutely admirable cause, with this happy result.
§ LORD ANNAN
My Lords, perhaps I can say on behalf of the Trustees of the British Museum how grateful we are to the noble Lord, Lord Faringdon, for having, in a sense, fought the battle of the British Museum on this particular Amendment, and to convey our gratitude to the Government for providing those 634 facilities without which one cannot get an Amendment on a matter of this kind into the proper shape. We are deeply gratified that such help has been given to the Museum.
§ LORD STOW HILL
My Lords, I do not want to strike a discordant note, because I have every sympathy with the motive behind the Amendment. However, I feel it my duty to point out that some practical difficulties may arise. The clause applies where there is a public performance of a new play. What I wish to put before the House for consideration is this. I suppose that this provision would include plays performed up and down the country in school halls and in halls of various sorts in villages and small towns. I should have thought that it would be extremedy difficult to see that in respect of those the law was obeyed. It may be asked, for example, of a performance in a school hall, "Is it a public performance?". Well, if parents are allowed to attend and bring their friends—possibly there may be a charitable motive and tickets may be sold to all corners for some useful purpose like rebuilding a school hall or providing funds for a church, or something of that sort—then I should have thought that in most cases that would be a public performance of the play. If that is the case, then I feel that this provision would be virtually unenforceable. And realty it does not mend matters to say that the penalty is only £5. I should have Thought it was not in the interests of good legislation to put criminal provisions on the Statute Book and to say: "True, they will not be enforced, but still the penalty is a very small one." That is not the way to draft criminal legislation.
However, my noble friend Lord Stonham seems to be content. It is largely the responsibility of the Government to decide whether this sort of legislation can be enforced. I certainly should not in those circumstances seek to stand in the way of any view which your Lordships may have formed in favour of the Amendment and the favourable view expressed by the Government.
§ LORD GOODMAN
My Lords, may I venture one further comment, to say that if this is legislated it will be the most beneficial piece of bad legislation which has been enacted for centuries, and we should all welcome it.
My Lords, may I, in spite of my blushes, express my gratitude for the encomiums which have been so lavishly bestowed upon me. I only regret that they are almost wholly undeserved. I wish that they were deserved. They are deserved by others, to whom I can only convey your Lordships' thanks. I believe my noble friend Lord Stow-Hill is unduly pessimistic. This system has worked under the Lord Chamberlain for a couple of hundred years and I think that, with any luck, we can make it work for another couple of hundred years without any gross lapse from good form or good practice.
After Clause 10, insert the following new Clause:
§ Delivery of scripts of new plays to British Museum
§ (".—(1) Where after the coming into force of this section there is given in Great Britain a public performance of a new play, being a performance based on a script, a copy of the actual script on which that performance was based shall be delivered to the Trustees of the British Museum free of charge within the period of one month beginning with the date of the performance; and the Trustees shall give a written receipt for every script delivered to them pursuant to this section.
§ (2) If the requirements of subsection (1) above are not complied with in the case of any performance to which that subsection applies, any person who presented that performance shall be liable on summary conviction to a fine not exceeding £5.
§ (3) In this section 'public performance of a new play' means a public performance of a play of which no previous public performance has ever been given in Great Britain, but does not include a public performance of a play which—
- (a) is based on a script substantially the same as that on which a previous public performance of a play given there was based; or
- (b) is based substantially on a text of the play which has been published in the United Kingdom.
§ (4) For the purposes of this section a performance of a play given solely or primarily for one or more of the purposes mentioned in section 7(2)(a) and (b) of this Act shall be disregarded.")—(Lord Faringdon.)636
VISCOUNT DILHORNE moved, after Clause 16, to insert the following new clause:
.Nothing in this Act shall in any way affect the law of sedition.
§ The noble and learned Viscount said: My Lords, in the Committee stage I moved an Amendment to bring into this Bill a reference to sedition because I thought it was important, if one could, to bring it to the attention of those responsible for producing plays that that law continued to exist. It is quite true that this Bill does not affect the law of sedition at all, but I thought there was a danger that with this new change a lot of people would think that they had only to look at this Bill when it had become an Act to find out what they could or could not do. Of course, that view, if they held it, would be quite mistaken. The ordinary law of blasphemy will continue to apply, and, I think I am right in saying, other branches of the law. But in particular I thought it was desirable to have some reference to the law of sedition.
§ We discussed this matter on Committee, when I withdrew the Amendment I then tabled, and I tabled this Amendment just to act as a signpost to indicate that the law of sedition is unaffected. But since I tabled this Amendment, the noble Lord, Lord Stonham, has very kindly written me a letter in which he has explained that he does not think, and the Government do not think, that it is desirable to put this kind of provision in this Bill when in fact there is nothing in the Bill that could possibly affect the law of sedition. But he has said that when this Bill becomes an Act, as it shortly will, it is proposed to send out some kind of circular in which attention will be drawn to the fact that the law of sedition remains unaffected by this Bill. If that circular goes, as I imagine it is intended to go, to those in the theatrical profession I am perfectly content and satisfied with that; and though I formally move this Amendment to enable the noble Lord, Lord Stonham, to say whether I have it right, if I have it right I shall immediately rise and ask leave to withdraw it.
After Clause 16, insert the said new clause.—(Viscount Dilhorne.)
§ LORD STONHAM
My Lords, the noble and learned Viscount, Lord Dilborne, in speaking on an earlier Amendment to my noble friend Lady Gaitskell, said that he hoped one day he would draft an Amendment absolutely right. I forbore from getting up to interrupt to tell him that he had done so some time ago on the Theft Bill. It was to remove the word "and"; and, as I then told him, it was completely and absolutely and technically right. So although this is not the first occasion, I assure the noble and learned Viscount that again this particular Amendment is technically perfect.
However, I am glad that he accepts the view that this Bill affects the law of sedition in no way whatsoever. I am sure he will also accept that it is not good practice to add words unnecessarily to a Bill; that sometimes causes trouble. But I very gladly assure him and confirm what I said in my letter. We do not in fact have it in mind to send out what he described as a circular, but rather more than that. We have it in mind to circulate a small publication dealing with the Bill as a whole, and hope even dealing with some of the points raised just now by my noble friend Lord Stow Hill, but saying in terms precisely in relation to the law of sedition what the noble and learned Viscount's Amendment says. And this I will do.
§ VISCOUNT DILHORNE
My Lords, I am very content with that and thank the noble Lord. I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 17 [Interpretation]:
§ 1.54 p.m.
LORD STOW HILL moved to add to subsection (1):
public performance' includes any performance in a public place within the meaning of the Public Order Act 1936 and any performance which the public or any section thereof are permitted to attend, whether on payment or otherwise.
The noble Lord said: My Lords, the noble and learned Viscount, Lord Dilborne, drew attention to the fact on an earlier occasion that there was no definition in the Bill of the words "public performance". If I may respectfully say so to him, he was perfectly right
and I am very much indebted to him for calling attention to the point. We have now tried to remedy this by embodying part of the definition in the Public Order Act 1936; that is to say, that part which relates to the place at which a performance may take place, and adding also:
any performance which the public or any section thereof are permitted to attend, whether on payment or otherwise.
As noble Lords will know, the only places in which the expression "public performance" appears are Clause 5, which relates to racial incitement, and Clause 6, which relates to an intention to create a breach of the peace, and also in some of the licensing provisions. I would put it to the House that it is a very great improvement to know exactly what we mean by a public performance". I beg to move.
Page 11, line 30, at end insert the said definition.—(Lord Stow Hill.)
§ VISCOUNT DILHORNE
My Lords, again I thank the noble Lord for meeting the point I raised. I agree with him that it leads to a more easy understanding of the scope of this Bill.
§ Amendment moved—
Page 11, line 30, at end insert—
'script' has the meaning assigned by section 9(2) of this Act."—(Lord Faringdon.)
§ LORD BESWICK
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Theatres Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
§ Then, Standing Order No. 41 having been suspended (pursuant to Resolution of July 15):
§ Moved, That the Bill be now read 3a.—(Lord Stow Hill.)639
§ LORD MITCHISON
My Lords, I desire to raise one small point, which I hope is now in Order. It arose out of Amendment No. 3 to Clause 8. I am not seeking to go back on the discussion about the Amendment in any way, but I think that what was intended by the Amendment was quite clear; whether or not it was quite met by its form I do not know. But the point surely is that if the Attorney General is asked—
§ LORD STONHAM
My Lords, I wonder whether my noble friend can give me some guidance on this point. We have no Amendment under consideration, and I am not quite clear how this point could be raised on Third Reading.
§ LORD MITCHISON
My Lords, I do not set myself up as an authority on the procedure of the House and if I cannot raise it, I cannot. I do not know who decides or what I should do. I am entirely in the hands of the House. I am not going to take long about it, but if my noble friend objects, and if that is the opinion of the House, I will sit down again. It is a very small matter.
§ LORD STONHAM
My Lords, as I understand it, my noble friend is perfectly free within the Rules of the House to say exactly what he likes on Third Reading. That was not my point. My noble friend referred to Amendment No. 3 to Clause 8, which of course we have passed long since. I am not clear as to the point he has in mind.
§ LORD MITCHISON
My Lords, with respect, what I said was that the point arose within the Amendment. I am not going back on the discussion about the Amendment itself. If I may have the leave of the House to raise the matter quite shortly, and if my noble friend does not object too strongly, I should like to continue. All I was saying was this. What is intended is that when a complaint is made to the Attorney General, and his fiat is practical, since he sometimes takes quite a long time to decide what he is going to do the person concerned should have notice or it so as not to go on incurring further expenditure.
All I rise to say is this. I do not know whether there is a relevant rule-making power or whether this point can be met by a notice or some such thing, 640 but it would seem reasonable that a copy of the complaint should be sent by someone, the complainant or somebody else, to the person affected so as to avoid further expenditure. I do not know what power there is to do it, and I do not ask for an answer now. But the mischief aimed at was quite a real one, and I hope the Government might consider, not in the terms of this Bill, but what is done under it, or in the practice of the Attorney General's Office, whether it would not be possible to meet it.
§ LORD STOW HILL
My Lords, on the occasion of the Third Reading may I, in one sentence, express my sincere gratitude to the House for the care and patience with which your Lordships have examined the provisions of this Bill and the indulgence you have shown to me when I have sought to deal with the difficulties which have arisen.
§ On Question, Bill read 3a, with the Amendments, and passed, and returned to the Commons.