§ 6.15 p.m.
§ LORD STOW HILL
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Stow Hill.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD GRENFELL in the Chair.]
§ Clause 1 [Abolition of censorship Of the theatre]:
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ VISCOUNT DILHORNE
There is a point I should like to raise on Clause 1 with the noble Lord, Lord Stow Hill. I would ask the noble Lord what is the position with regard to, for instance, some universities? Under, I think it was, Section 10 of the Theatres Act 1843 the Chancellors of Oxford and Cambridge Universities were given special powers in regard to theatres in their respective cities, but those powers, of course, will be abolished. Before we let this Bill be enacted I think we ought to be clear in our minds as to the position at the universities with regard to the performance of plays by the theatrical societies in different colleges. I do not know whether there is one at Balliol, but if there is the noble Lord, Lord Stow Hill, I am sure, will be anxious to see that the Fellows of Balliol are not liable to prosecution under this Bill for having connived at or consented to or permitted the performance of a play which does not conform to the requirements of this Bill.
I have made that observation and it may appear somewhat facetious, but there is, I understand, real concern about the position of the university authorities if this Bill is enacted in its present form. Presumably the police powers will be 909 exercised, or excercisable, in relation to theatrical productions of universities just as they are in relation to any other theatrical performance. I can see in these days some universities being liable to a considerable amount of difficulty. In that respect, perhaps the position has not changed so radically since the days when the noble Lord, Lord Stow Hill, and I were both at the university—the incursions of the police, legitimate though they may have been, were bitterly resented when they embarked upon university territory.
I do not want to press this matter now to any great degree, but I should be grateful if the noble Lord, Lord Stow Hill, would say that between now and the Report stage he will look into it with a view to seeing whether anything can be done to clarify the position, and in particular to clarify the position of the university authorities in relation, for instance, to the production of plays at places such as the Oxford Playhouse. Perhaps similar considerations apply to all amateur dramatic societies. I shall be grateful to hear what the noble Lord, Lord Stow Hill, has to say about that, but I have risen to my feet to draw attention particularly to the universities of Oxford and Cambridge, where I think a special situation arises by virtue of the repeal which is effected by this particular clause of the Theatres Act 1843.
§ LORD STOW HILL
The noble and learned Viscount first asked me the question as to what I thought would be the position supposing that the Bill in its present form passed into law. The advice that I would respectfully offer the Committee on that matter and the answer I should make to the noble and learned Viscount would be this. The Bill as now drafted, and in particular Clause 2 and the other relevant clauses, would apply to, say, repertory companies and amateur companies at Oxford and Cambridge, and the effect would be that the powers of enforcement contained in the Bill would be operative in relation to the universities. That is the advice that I would give "off the cuff"—I think that it is right. The matter to which the noble and learned Viscount has referred has come to my notice only in the last day or two, but I accept at once that it must be carefully considered. The noble and learned Viscount asked if between now 910 and Report I would give thought to it, and of course I will. I will go into the matter, although I do not give an undertaking that I shall be able to put forward any specific proposal. I will certainly study the matter, and I think that is all the noble and learned Viscount asked for.
§ VISCOUNT DILHORNE
I am grateful to the noble Lord. I should like him to deal, perhaps more precisely than is done in the Bill with the responsibilities of the university authorities in relation to the production of such plays. I have not all the words of the Bill in my mind, but as it stands at the moment I think that the extent to which university authorities would be responsible in relation to the production of a play produced at particular college is open to great doubt. They are bodies corporate which have particular responsibilities. I am not critical of the Bill in this respect., but it may be desirable to insert words to make clear to what degree they are to be regarded as principals when a play is produced in a theatre under university control or by a dramatic society in one of the colleges.
§ LORD STOW HILL
I suppose that the question would be one of fact, to be decided in each case, as to whether the particular Fellow of a college concerned could be said to have directed or presented a play within the meaning of Clause 2. The answer to that question would differ according to the actual circumstances of the case; but I accept that the matter should be clarified at least and that thought must be given to it.
§ LORD GOODMAN
Would the noble Lord, in clarifying the point, be good enough to consider the wider considerations in regard to the position of the amateur theatre? It would be unfortunate if it were suggested that one feudal institution was being put into difficulty by the removal of another feudal institution.
§ LORD STOW HILL
I agree, Obviously the matter has to be considered in a wider context. One cannot single out particular feudal institutions for investigation. I should have thought that amateur performances would be subject to the scope of Clause 2, but clearly the matter which the noble Lord has raised must be carefully considered.
§ VISCOUNT DILHORNE
I do not want to draw any invidious distinction between feudal and non-feudal institutions. I am concerned to see whether we can get some degree of precision because of the particular relationship of colleges and universities. There may be great doubt how the question of fact would fall to be resolved in particular instances.
§ LORD STONHAM
I am grateful for what my noble friend, Lord Stow Hill, has said; but I think I should say that the Government's understanding of the Bill as it at present stands is that universities would be in no different position from anybody else and that dramatic societies would be expected to comply with the Act. I entirely agree with my noble friend Lord Stow Hill that the question of who presents the play will depend entirely on the facts of a particular occasion or situation.
§ LORD STOW HILL
I hope I may leave the matter in a clear situation if I say that my undertaking is to study it, and I do not go any further than that. I say that to both noble Lords who have addressed the Committee on these two matters.
§ VISCOUNT DILHORNE
I am afraid that the noble Lord, Lord Stonham, has rather fogged the issue. I am not suggesting that dramatic societies themselves should not be responsible like any other body under the Bill. The point which is of difficulty is the degree to which the university itself or the college itself is responsible in relation to a play produced in a college or in a theatre. It is a question of fact and depends on the meaning given to the word "presentation". That is what I asked to be looked at, and I am glad that the noble Lord, Lord Stow Hill, will do so. I understand, of course, that it is without any commitment.
§ Clause 1 agreed to.
§ Clause 2 [Prohibition of presentation of obscene performances of plays]:
§ 6.27 p.m.
§ LORD LLOYD OF HAMPSTEAD moved, in subsection (4)(a), after "morality" to insert "or for a conspiracy to corrupt public morals". The noble Lord said: The purpose of this Amendment is to deal with what I ven- 912 ture to think is a rather unfortunate situation which has already arisen under Section 2 of the Obscene Publications Act 1959. Unless the words which I put forward in this Amendment are inserted in Clause 2 of the Bill, it seems quite clear that a similar, and I think, unfortunate, result will occur in this Bill.
§ The purpose of the 1959 Act was to substitute a new statutory offence of obscenity for the old Common Law offences and the Act of 1857 which was at the same time repealed. Unfortunately, in the celebrated case known as the "Ladies' Directory case"—the proper title is Shaw v. the Director of Public Prosecutions—which was decided by this House in its judicial capacity in 1962, it was held that there is an offence known to the law as a conspiracy to corrupt morals, and, moreover, that that offence was not excluded by the terms of Section 2(4) of the 1959 Act, on the ground, no doubt quite correctly, that the real offence in a case of conspiracy depends on the agreement and not on the publication.
§ That decision was widely criticised at the time on the basis that it involved a rather unwarranted form of judicial legislation, and there was a very strong dissent in the case by the noble and learned Lord, Lord Reid, who pointed out that the offence of criminal conspiracy was a creation of the Star Chamber and that this was not a very secure foundation for developing our modern law. He also pointed out that there is a wide difference of opinion as to how far the law ought to be invoked to punish immoral acts, and that, in any event, Parliament was the proper place to settle this question.
§ The point that I wish to draw to your Lordships' attention is that, if these words are not added to the Bill, the result will be that the offence of conspiracy to corrupt morals will equally be applicable under this Bill; and, in the result, the carefully worked-out safeguards to try to protect the theatre against unwarranted prosecutions will go by the board. Those safeguards are principally three in number: under Clause 2(1) by the new definition of "obscenity", which is in line with the 1959 Act and which, for instance, involves the notion that the work must be taken as a whole; under Clause 3, which introduces the definition of "public good", which is not applicable to the 913 Common Law offence of conspiracy to corrupt public morals; and under Clause 8, which provides for the prior consent of the Attorney General. So the position would be that if the authorities saw fit to rely upon the Common Law offence, all the carefully devised safeguards of this Bill would not be applicable in such a prosecution.
§ I therefore submit that it would be right and proper to exclude the offence of conspiracy to corrupt public morals, and that that is fully in accord with the intention of this Bill which, by the provisions of Clause 2(4), purports to exclude offences at Common Law but unfortunately, as I have said, in the same terms as were employed in the 1959 Act and, therefore, in terms which are inadequate to exclude this offence of conspiracy. I beg to move.
Page 2, line 24, after ("morality") insert ("or for a conspiracy to corrupt public morals")—(Lord Lloyd of Hampstead.)
§ LORD GOODMAN
I should briefly like to support this Amendment very strongly. The whole purpose of this legislation is to procure as much certainty as is possible after the replacement of the Lord Chamberlain. The great merit of the Lord Chamberlain, whatever arguments there may be against the exercise of his office, was that there was absolute certainty. If you had a licence you knew that you could produce a play and there was no argument about it. If you did not have a licence you knew that you could not produce the play and were exposed to a prosecution if you did. That was an absolutely clear-cut position. If that certainty is being removed, anyone concerned with the production of plays should at least know that the measure of his offence is contained within this Bill and that there is not lurking somewhere some weird Common Law offence that has, as it turned out, been devised in the House of Lords and not at all found as a matter of Statute or been deemed to have existed before the judgment of the House of Lords in the case to which the noble Lord has referred. I think that on any principle there might be strong objections to the creation of new criminal offences at this stage, unless created by both Houses of Parliament. But that is quite a different question.
914 My reason for supporting this Amendment is the simple one of certainty. People should know where they stand. They should know that on reading this Bill the position will be clear-cut and that their situation is defined by the Bill. They should not then have to look elsewhere to ascertain, with the assistance of very recondite research, what other offences they might happen to commit. I do not think there is any sufficient virtue in retaining this offence that can compensate for the loss of certainty that will remain by preserving it in this context.
§ LORD STOW HILL
My noble friend Lord Lloyd of Hampstead and the noble Lord, Lord Goodman, have raised a point of extreme importance and difficulty. I entirely agree with the noble Lord, Lord Goodman, when he says that one should do one's best to achieve certainty here. Your Lordships' house approved Clause 2 on Second Reading, and the whole basis of Clause 2 is that a new offence is created in it—the offence of producing a play which is obscene within the meaning of that clause—and the playwright, the producer and the person who directs it is to be at risk of that criminal liability. As a compensating factor, in subsection (4) the clause exonerates him from liability to prosecution for the rather analogous Common Law offences. Your Lordships would probably find no difficulty in agreeing in principle that, the clause being so worded and having been approved in that form, it would be extremely unfortunate if, owing to an omission, the playwright, the producer or the person who directs could find himself, notwithstanding the protection which he thought he was getting under subsection (4), faced with the risk of a prosecution for conspiracy for doing precisely the thing; for the doing of which subsection (4) purported to excuse him.
I think that the proposal that both noble Lords have put before the Committee is one which has a great deal to commend it. What I ask my noble friend and the noble Lord, Lord Goodman, to do, if they would be so good, is to accept my personal undertaking that I will give anxious thought to this point between now and the Report stage of this Bill. If they will allow me to do so, I shall 915 leave the matter in this state: that, personally, I feel that their arguments cannot be answered except by a change of some form introducing into the scope of the Bill that which they have in mind. It seems to me that, without that, the Bill is incomplete.
§ LORD LLOYD OF HAMPSTEAD
I am grateful to my noble friend Lord Stow Hill for his most helpful suggestion. Speaking for myself, and I hope your Lordships will take the same view, I find his proposal entirely acceptable and I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 6.37 p.m.
§ On Question, Whether Clause 2 shall stand part of the Bill?
§ VISCOUNT DILHORNE
I should not like to part with this clause without expressing my deep regret that, once again, one finds in a Bill a definition of "obscenity" which, to my mind, is most unsatisfactory and most unrealistic. I know it is based upon the observations of a learned judge in a case decided in, I think, the 1880s, but to say that the meaning of the word "obscene" is that it tends to deprave or corrupt is, with the greatest respect, not a very accurate definition. It was bad enough when that definition was put into a Statute in the Obscene Publications Act, but now we are extending it to apply to theatrical performances.
If you are dealing with obscenity generally, I think no one would say that a statue which everyone would regard as obscene ever had the slightest tendency to deprave or corrupt. I wonder whether you will ever be able to establish that a particular theatrical performance has that tendency. I have always doubted very much, certainly until the Moors case, whether the reading of pornographic books by depraved persons could have a tendency to deprave or corrupt, or whether they were depraved anyway. But here we are applying this test to theatrical performances. I doubt whether that burden of proof will ever be capable of being discharged, and I wanted to take this opportunity of expressing those doubts and my regret that what I regard as an unsatisfactory definition of the word "obscene" should once again be inserted in a Bill.
916 Again, I am disappointed at the contrast between subsection (1) of Clause 2 and subsection (1) of Clause 3. The noble Lord, Lord Stow Hill, said on Second Reading that this was taken, as it is, from the Obscene Publications Act 1959. He said that it had been on the Statute Book for nine years and had been used on a number of occasions, and by general consent had been found to be eminently workable. I am afraid that the general consent does not include me. Nothing can be more uncertain than the operation, linked together, of those two matters in determining whether or not there should be a conviction. If you start with the assumption that the play is obscene, as tending, taking its effect as a whole, to deprave and corrupt persons who are likely to attend it, can it really ever be said in fact that it is for the public good that that obscenity, that play with that tendency, should be produced? Yet by subsection (1) of Clause 3, despite the fact that the play is obscene within the definition in subsection (1) of Clause 2, it is to be a defence to prove that that obscene play was actedfor the public good on the ground that it was in the interests of drama, opera, ballet or any other art, or of literature or learning".I know that we have not the Bishops here to-day as we had them a few days ago, but one knows from past experience how it is possible to get some reverend gentlemen to give evidence in the most surprising circumstances that they think that certain pieces of literature, which have been regarded in the past as of a pornographic nature, are published for the public good. I have always found that very difficult to believe. But here again, in this Bill, which is modelled on the Obscene Publications Act, if you start with the assumption that it is established that the play is obscene, and so cannot be for the public good because it tends to deprave or corrupt, then the court has to say, "Yes, but it is a defence if, not-withstanding that, it wasfor the public good on the ground that it was in the interests of drama, opera, ballet or any other art or of literature or learning".Can it really be for the public good, on any of those grounds, to produce something which in fact has the tendency to deprave or corrupt?
But what I think is much more serious is this. It is impossible to balance the one against the other. They do not 917 really balance. In some cases a court will take the view that the defence prevails; in another part of the country, in, say, another magistrates' court, you will get the view, perhaps in relation to the same play, that it does not prevail. One of the real difficulties (and the noble Lord, Lord Goodman, referred to it just now) is that the correlation between these two tests involves, as I see it, a very great degree of uncertainty; and one advantage—and I support what the noble Lord said—of the Lord Chamberlain's having the onerous burden, which he has discharged so successfully for many years, is that once he had discharged it people knew where they were. I cannot help but feel that if this Bill is passed in its present form a great many people will regret that the Lord Chamberlain has ceased to perform his functions, and a great many people connected with the theatre will feel extremely uncertain as to their position should they venture to put on a play which might be regarded by some as obscene within the definition with the uncertainty that they can ever establish that something which was obscene was in the public good in the interests of drama.
It is too late for me to seek to amend this—indeed, I do not think I could at short notice—but I do not think it right to let this Bill pass without making these observations, and particularly was I tempted to do so by the observation of the noble Lord, Lord Stow Hill, that it was by general consent found to be a satisfactory test. If it is a general consent, I am again in a minority.
§ LORD STOW HILL
I am very sorry indeed to have tempted the noble and learned Viscount to such distaste for this definition. He made, as he always does, a speech which was backed by the great authority of his learning and experience. It was a speech which possibly your Lordships might think would have been, if I may say so with respect, rather more appropriate on Second Reading. Your Lordships' House has approved Clause 2. Clause 2 is foundational to the Bill. The whole point is that in place of the decision—the ipse dixit, as it has been rather irreverently described—of the Lord Chamberlain, Parliament has substituted —or is, I hope I may say, in process of substituting—a definition of what a play- 918 wright, a producer, may put upon the stage and what he may not.
I always hesitate very greatly before I express any difference in view from the noble and learned Viscount, but I must say that I am very sorry he has formed the view he has. I totally disagree with him. I think that this scheme, which is, as it were, adapted from the Obscene Publications Act 1959, has been Shown to work well. It is an endeavour by the community to answer an extremely difficult social problem. One must consider the desire of the artist to express himself and the effect upon society of the method of expression which he chooses. Simply to state the problem in that form indicates its difficulty. It seems to me—and I still am of the view, although I have listened most carefully to the arguments of the noble and learned Viscount—that Clause 2(2) does its task most admirably, and I think I should persist in that view Looking at subsection (1) it is true that you have to show a lot before you can establish that, within the meaning of subsection (1), a play is obscene. So you should, because, as has been said over and over again, both inside and outside Parliament, people differ so very much as to what is permissible in that regard and what is not. There has to be something which cannot be easily, as it were, overstepped by accident. When inhibition is put upon the exercise of free speech in this country it should go only as far as is absolutely necessary.
What Parliament is in process of doing here (I hope I may say "in process", because I very much hope that this Bill will become an Act of Parliament) is to say, "You, the playwright, you who produce plays, may put upon the stage what you think appropriate so long as it does not actually harm society". That is the effect, as I understand it, produced by the words of which the noble and learned Viscount was so critical—that a play is obscene if:taken as a whole, its effect was such as to tend to deprave and corrupt persons who were likely, having regard to all relevant circumstances, to attend it".You have to envisage the audience. You have to envisage the effect on them, and upon society as a whole, of what is produced on the stage.
As I understand the motives of those who have put this Bill before Parliament, 919 it is not enough simply to say that somebody does not like a play or that somebody's taste is offended. If people's taste is offended, there are other ways in which they can give expression to their dislike. There is the Press; there are the columns of the critics; there is the opportunity to stay away from the play if you do not like it. But what Parliament is in process of forbidding is the putting on the stage of something which will actually harm society; and surely that is where the line should be drawn. Short of that line it must be a matter of public controversy as to what the playwright may do and what he may not do.
Human genius would have been very much impoverished if, over the centuries, the clamps on the expression of human genius had been too great. We are a highly civilised society now, in 1968, despite some of our manifestations, or those of some of us, from time to time, and it seems to me that it is not putting too much upon the taste of society to say that so long as you put something on the stage which does not actually do harm to society as a whole—that is to say, impair its instincts to behave itself and to repress its anti-social inclinations, such as they may be—then you are not transgressing the law.
The noble and learned Viscount expressed doubt as to whether that definition could be married in, in effect, with what is said in Clause 3(1). Of course, it is a matter of balance. You may get something which, looked at by reference to the test whether it may have a depraving effect, may seem to have such an effect. But it may be a work of very great merit; and what the courts are required to do, and what the jury is required to do, is to weigh up the difference. It is a balance—so many of these things are. If you have a play or something which has very great artistic merit, for whatever reason it is thought to be of great value, one has to ask the question propounded in Clause 3(1) and say, "Looking at its depraving effect on the one side and considering, nevertheless, the inspiration and possibly the genius that inspired it on the other side, should we regard it as something the production of which has transgressed the criminal law?"
I respectfully put it to the Committee that those who framed both the 1959 Act 920 and this Bill have taken a notable step forward in trying to put to rest this difficult and perplexing problem which faces every society in every age. I think this is a most workable—and, if I may say so, I would add the word "admirable"—definition of what society can and cannot allow upon the stage. I greatly hope that the noble and learned Viscount as the years go by and this Act is put into operation will find that he is able to modify the adverse views to which he has just given expression.
§ LORD GOODMAN
I think this is a matter entirely appropriate to the Second Reading and that it is, in a sense, an indulgence that we should proceed with it; but in view of the turn of the debate there is one word which ought to be said for the record by some of us who are concerned with this matter in other fields. It is that in the extraordinarily effective and felicitous reply that the noble Lord has just made, he has left out an important consideration. It is not whether the 1959 Act was or was not the pluperfect means of devising this matter, but that it would not have been practicable to produce an Act for the theatre at this stage that did not follow the pattern of the 1959 Act. My view is that there are grave imperfections in the 1959 Act. I sympathise with many of the things that the noble and learned Viscount said. There are considerable illogicalities and inconsistencies in trying to establish that a work alleged to be depraved and corrupt can, at the same time, have social merit. I think that this is logically impossible, despite the persuasive words of the noble Lord. It is an impossibility.
The fact remains that this Bill is based on the previous Act. If it had not been so based, then what we should have needed to do was to review obscenity across the whole field of media of communications. That might well have taken many years. It is very sensible indeed that what we do for the moment is to follow the pattern of the 1959 Act, bearing in mind that it has shortcomings and that the time is perhaps not too far off when those shortcomings need to be repaired.
§ VISCOUNT DILHORNE
I did not speak on Second Reading: I do not think I was able to be present at the time. I make no apology for making my protest at the Committee stage on what are 921 Committee points. I listened with the greatest attention to the noble and learned Lord, Lord Stow Hill. I have not put down any Amendments to this clause. But I wanted to make a serious protest in relation to the drafting. I agree with what the noble Lord, Lord Goodman, said: my protest applies with equal force, if not greater force, in relation to the wording of the Obscene Publications Act. I think the time has come when over the whole medium of communication the whole question should be examined as to what ought to be the correct interpretation of obscenity.
The noble Lord, Lord Stow Hill, did not dissent from the interpretation that I put on these particular provisions. He sought to justify them. I am sure that he holds his view sincerely. I adhere equally sincerely to the criticisms of this particular form that I have made and which I have held ever since the passing of the Obscene Publications Act. It seemed to me wrong then, as it does now, that no matter how corrupting the play or the publication may be, still there will be an acquittal if the jury or the court can be convinced that, notwithstanding the great degree of corruptive influence, none the less the pornography was well written or the play well produced.
§ LORD STOW HILL
I rise only to say that I hope that the noble and learned Viscount did not think for a second that I was suggesting that he was not sincere in the views that he expressed. Nothing was further from my mind and I hope that no language I used gave that impression.
§ Clause 2 agreed to.
§ Clause 3 [Defence of public good]:
§ 6.56 p.m.
§ LORD LLOYD OF HAMPSTEAD moved to add to subsection (1), "or of other objects of general concern". The noble Lord said: In the context of this Amendment I am not called upon to say anything about the very interesting and important point that has been raised by the noble and learned Viscount. Speaking for myself, I feel considerable sympathy with the point he raised. I say this with the greatest respect to the noble and learned Lord, Lord Stow Hill, because there seems to be an inherent illogicality in the position under the Obscene Pub- 922 lications Act. And, of course, this same illogicality is repeated in the present Bill.
§ But, equally, it seems to me that, as the noble Lord, Lord Goodman pointed out, it is not for those who are seeking to amend the law relating to censorship in regard to the theatre on the point of obscenity to try to reconstruct the whole law of obscenity in the context of this Bill. If they attempted to do so, clearly they would, if I may use the term, "bog down" in this difficulty, and the result would be that one would not get a Bill at all. One would have to reconstruct the whole law of obscenity, including as the noble and learned Viscount so cogently pointed out, the very unsatisfactory definition of "obscenity" which perpetuates, with only slight modifications, the definition in the Hicklin case decided in 1867 which has, for some obscure reason, become almost like a provision in a Statute.
§ But the odd thing is that whenever a committee has been assembled to consider the law, after all the learned and elaborate consideration they have always come to the conclusion that they cannot think of any other formula. I have not the least doubt that if the noble and learned Viscount were to give the benefit of his profound knowledge, learning and experience in these matters to some future committee then some more satisfactory formula would be devised. I should be happy to see that formula introduced; for the whole conception of depraving and corrupting is fundamentally an unsatisfactory one. But my concern is purely in the context of this particular clause; and for this purpose my complaint, as the Bill now stands, is that the clause as drafted is not in line with the Obscene Publications Act; and there seems, as I would submit, no justification for this.
May I draw your Lordships' attention to the fact that in Section 4 of the Obscene Publications Act 1959 the defence of public good can be pleaded on the ground that a publication is justified if it is:
… in the interests of science, literature, art or learning or of other objects of general concern".
As your Lordships will see, the words in Clause 3(1) of this Bill in its present form are:
…in the interests of drama, opera, ballet or any other art, or of literature or learning.
In other words, the vital general words "or of other objects of general concern" are omitted. The situation is that, under the 1959 Act, these general words have performed a valuable service from the point of view of the operation of the defence, because they have enabled the defence to rely not merely on literary merit or scientific merit but on such matters as ethical and sociological merit. This kind of defence has been raised in a number of leading cases under the 1959 Act—for example, the cases of Lady Chatterley's Lover and Last Exit to Brooklyn.
§ If it is suggested, as it may be, that there is some difference between the theatre and general literature, I would submit to the Committee that this is not so. You may, for instance, have a play which might not be of outstanding literary merit, but it might have considerable value, for instance, as a social document. Or it might put forward a significant case for some ethical or social viewpoint. It might be, for instance, a play dealing with such problems as homosexuality or drug addiction and, if one may give historical instances, we know that plays, such as Ibsen's Ghosts and Bernard Shaw's, Mrs. Warren's Profession, which were regarded in their day as obscene, are now regarded not only as plays of literary merit but as plays making a significant contribution to particular social and moral problems.
§ Therefore I suggest that this defence of public good, framed as it is, is incomplete without the general words; and, so far as I can see, no explanation has so far been vouchsafed. There is no reason why one should depart from the form of words in the 1959 Act. After all, the object of the present Bill is to try to rationalise the law and assimilate the position to that in the 1959 measure. In these circumstances I submit that there is no reason why these words should be omitted, and I hope your Lordships will agree that they should be inserted. I beg to move.
Page 2, line 39, at end insert ("or of other objects of general concern").—(Lord Lloyd of Hampstead.)
§ LORD STOW HILL
My noble friend has raised another point of great interest on the drafting of this measure. I con- 924 fess that in this case the advice which I would respectfully tender to the Committee is not to accept his proposal. I will try to explain the reasons which actuate me. I hope that in propounding the argument which I propose to propound I may have the support both of the noble and learned Viscount, Lord Dilhorne, and of the noble Lord, Lord Goodman, because my anxiety about the proposal to introduce the words, "of other objects of general concern" is that it seems to me they begin to lead to some uncertainty.
One is, after all, dealing with similar, though not identical, matters, when one speaks of books, newspaper articles and so on, on the one hand, and plays, on the other. Both noble Lords objected to the definition in Clauses 2 and 3, one of their grounds being that the playwright did not know where he was. It is a matter of degree, and I am quite sure they will accept that from me. But at least if you say, as we do in Clause 3(1), that the grounds of public good which may be relied on by way of defence are that the performance wasin the interests of drama, opera, ballet or any other art, or of literature or learningyou are circumscribing the ground (and indeed this was the argument which my noble friend propounded) considerably, I think; and you would be enlarging it into a very uncertain terrain if you added words of such very doubtful and general import as the words which my noble friend seeks to introduce.
I can understand its being said that if you are asking on what ground a book, which may have a tendency to deprave, can, nevertheless, be justified because it is in the public interest, you may point to a propagandist aspect of the book; that it draws attention to squalor or misbehaviour, or that it has value for some reason of that sort and therefore, although it might at first sight be thought depraved, it should nevertheless be excused in the eyes of the criminal law because it serves, for example, some propagandist purpose of the sort I have indicated.
When one is speaking of a play which is put on the boards, it seems to me that the case for enlarging the scope of the justification is not so strong. It is reasonable for those who drafted this Bill to say that a play which may from 925 one point of view to be thought to have a depraving effect nevertheless is not to give rise to a criminal conviction if it can be said that it is for the public good, in the sense that it is really a very good play or a very good opera; that it has great artistic value; that it displays great inspiration. That seems to me a not illogical way of going about the framing of the definition. On the other hand, when you are talking about a play, it seems to me of doubtful wisdom to enlarge the scope to the extent it is enlarged in the Obscene Publications Act which, as the Committee know, deals with books, newspaper articles and that sort of thing. It seems to me that from that point of view it can be said that there is a difference.
I would add, and pray in aid, the argument used by both noble Lords to whom I have referred, that it introduces a measure of uncertainty where it ought not to be or, rather, ought to be in the least possible degree. A playwright should be made as certain as one can possibly make him. I do not think that he is made too uncertain with the clause as it is drafted, and I have so argued. I hope that the Committee will feel that there is force in the argument, but I think we should be nearing the danger line if we enlarged the justification contained in Clause 3(1) in the sense in which the noble Lord proposes it. Therefore, while I am impressed, as I always am, with the argument put forward by the noble Lord, Lord Lloyd, and the contrast he drew in the drafting between this Bill and the Act of 1959, my respectful advice would be that we should not be improving the present measure if we accepted his proposal, but rather, in point of fact, would be doing some damage to it, in that we should be introducing a measure of uncertainty which should be absent.
I have one other observation to make. I have always been puzzled by the phrase, "or of other objects of general concern". In ordinary reading I should have thought those words meant "or of other objects about which the public is worried, anxious or frightened". That seems to me to be the primary import of the words, "objects of general concern". I cannot think that that is what the phrase is meant to mean in the 926 Obscene Publications Act, because it would be wholly out of context if that is what the words were construed to mean. That, I would respectfully put before your Lordships, is a drafting objection in any event, but, as I say, for the reasons on the merits which I have ventured to put, I hope your Lordships will come to the conclusion that while my noble friend's arguments are always weighty, nevertheless they ought not to prevail in this case.
§ LORD LEATHERLAND
I also feel that the Committee should reject this Amendment. This debate seems to me the "freehold" of the legal profession, and rightly so. I have not the honour of belonging to that high strata of society. I was merely a newspaper man; but in my newspaper days I always tried to impress on my subordinates (shall we call them?) that they must be precise in their use of words. This is just the opposite. What precision is there in the phrase, "other objects of general concern"? There are millions of objects which generally concern every one of us as human beings.
My noble friend Lord Lloyd of Hampstead mentioned the possibility of a play being regarded as a social document. Before he used those words, one particular aspect of society had occurred to me, that of prostitution. Prostitution is an object of general concern, if not perhaps of universal concern. Are we therefore, in the interests of art, to justify a play which portrays a prostitute plying for hire, which portrays that prostitute taking somebody to her flat and rendering what I believe is known technically as her personal service? Are we to justify that on the fact that it was artistically portrayed on the stage?
I know that under Clause 2 it may be said that such a portrayal comes within the definition of obscene, but Clause 2, which would be a fairly commonsense clause in those circumstances, is now to be altered by Clause 3, which definitely exempts from the Clause 2 definition of obscenity something which might be of general concern. I think the phrase is far too loosely drawn and would allow far too many undesirable things to be shown on the stage for your Lordships' House to agree to it. We are now coming up against one of those difficulties which 927 some of us foresaw when the proposal was originally made to abolish the censorship function of the Lord Chamberlain. The Lord Chamberlain in a very commonsense way said Yes or No to plays of many kinds. We have thrown that aside and decided to depend upon the law; and if the law is to incorporate phrases like this, no playwright, no producer, would ever be safe.
If I may be allowed to add a codicil to what the noble Lord, Lord Leatherland, has just said, I have impertinently noted down on my copy of the Amendment five things which seem to me of general concern, of which prostitution was the third. They are: commerce, finance, prostitution, the establishment of the Anglican Church and the hereditary principle in your Lordships' House. If I am right, following the noble Lord, any play is justified, however obscene and indecent and loathsome, provided it made out a good case for the hereditary principle in your Lordships' House, for the Anglican Church, for prostitution, for the export trade or for finance. Is that the meaning which the words would give? I ask as a layman, because it would affect my vote very much.
§ LORD GOODMAN
There is much to be said for the persuasive reply from the noble Lord, Lord Stow Hill, and for the plea made by the noble Lord behind him, and by the noble Viscount who has just sat down. But the point is that here we are reopening the whole of the law of obscenity, which would be a very wide divergence from the Bill. The Joint Committee, of which there are three members in your Lordships' House now, reported that it did not intend that the defences available under the 1959 Act should be reduced in any way. The fact that some draughtsman has had the bright notion that a particular part should be kept out is not a valid reason for leaving it out.
In logic, we should either decide that we should follow the 1959 Act, because that is bound to fit in all matters of obscenity, or we should branch out on our own and radically alter the law of obscenity. I am very much in sympathy with everything that has been said about the uncertainties and possible disadvantages of introducing this defence, but if 928 it is a defence available under the 1959 Act, and if the Joint Committee intended it to be in the Bill, as I firmly believe they did—any member who thinks I am wrong will no doubt correct me—it should not be changed by the omission of these words. There are important areas in which the words would have effect.
We have the advantage of the presence of the noble Lord, Lord Cobbold. He may remember a play called The Connection, which may have given him great difficulty, concerned with drug addiction, which I think would have an extremely moral effect in persuading people from taking drugs. On the other hand, it was extremely audacious, and many people might have thought that certain details were obscene. But I think the overall effect was for the public good. This is a strong instance of a play that would legitimately have had a defence if these words were included, and would not have had a defence if they were omitted. I could multiply that instance by many. We ought to introduce legislation which follows closely on the 1959 Act; and because that was the intention of the Joint Committee, I think these words ought to remain. I wonder whether the noble Lord would reconsider this position.
§ VISCOUNT DILHORNE
I rise to support the noble Lord, Lord Stow Hill, on this point. I have listened with great interest to everything that has been said. One point on which I part company with the noble Lord, Lord Goodman, is this. If the play to which he referred had the effect he said it had, it certainly could not have come within the ambit of the Bill at all because it could not be said as a whole to tend to deprave and corrupt persons who saw it. Therefore, the considerations in Clause 3(1) are irrelevant in relation to that play.
I agree with the noble Lord, Lord Goodman, that the noble Lord, Lord Stow Hill, had no alternative but to model Clauses 2 and 3 upon the provisions of the Obscene Publications Act 1959. While criticising those provisions, I have not suggested any alternative, because if we are going to put in an alternative scheme it has to cover both. But that does not mean that we should not 929 seek to make minor improvements of the Obscene Publications Act so far as that Act relates to plays, and I think that the omission of these words is an improvement of considerable importance. I think the noble Lord, Lord Stow Hill, was understating the matter considerably when he said that the addition of the words proposed added a measure of uncertainty. I can hardly think of a more uncertain phrase. What content could be given to it in court, I simply do not know. How do we test "general concern"? How many people have to be "concerned" for it to be general? They are almost meaningless words, and it seems to me that if these words are added we are piling Pelion upon Ossa, uncertainty upon uncertainty.
I am tempted even now to ask the noble Lord, Lord Stow Hill, to explain to me and to define in the Bill what exactly is the meaning of the expressions, "interests of drama", "interests of opera", "interests of ballet", or of "literature or learning". We are supposed to be using precise language. We can test whether a play is good or bad literature, well written or badly written, but we are not using that test by talking about the "interests of drama and opera". That again is modelled on the Obscene Publications Act. I shall not complain at all if the noble Lord does not respond to my invitation. I do not want to hold up the passage of the Bill, but I want to draw attention to defects in the language, even though it is because this Bill has followed the other because I am sure that this is going to give trouble in the future.
§ LORD STOW HILL
I have listened anxiously to the arguments on both sides of this problem. I confess that, so far as my mind is concerned, the additional doubt which would be imported if these words were added weighs the balance. I should not feel disposed to depart from the advice which I tendered to your Lordships when I spoke before.
With regard to the question put to me by the noble and learned Viscount, Lord Dilhorne, as to the meaning of the words "in the interests" in that context, I would, as he draws attention to the point, accept that they are not ideal; but I think they are workable. "In the interests of art" and "in the interests of drama", 930 I should have thought would be construed by the learned Judge before whom the matter came, and who had to direct a jury upon the point, roughly in this sense. He would say: "Can you look at this performance and say that it has such merit"—if, for example, the word "drama" is in question—"that it is a dramatic piece? Is the author in the course of his production displaying such tact that if this were not allowed it would be a clamping down upon the full and desirable development of dramatic art?" That is how in a general sense I should have thought it might be interpreted by a Judge to a jury. And I should have thought, if I may say so with respect, that to ask a jury to decide, especially with the assistance and the advice of experts, whether the answer to that question should be "Yes" or "No", would not be putting an intolerable burden upon them, and that they could say one way or the other, with advantage of the advice of experts, whether this in their view established that in the sense I have indicated the dramatic piece was one that should be excused in the eyes of the criminal law. I hope that the noble and learned Viscount thinks that is some answer to the question he has put to me.
I know that my noble friend Lord Lloyd is not content with my answer—at least, I think I heard him say so. But it is a question of balance, and I hope he will accept that, on balance at any rate, there is a good deal to be said for the view that I propose. If I may say so to the noble Lord, Lord Goodman, there is a third possible limb to the dilemma which he posed. He said: "Either accept the 1959 Act working, or make a completely new departure". I should have thought, as the noble and learned Viscount said, that there is a middle course, that is, to adapt it, which is what has been done, and I should have thought that the omission of those words was a wise measure of adaptation to the new material with which the present Bill is dealing.
§ LORD LLOYD OF HAMPSTEAD
I have listened with great care to the arguments that have been adduced by noble Lords against this proposed Amendment. I am bound to say that this particular form of words is not one of my choosing; it is simply reproducing some words, 931 which I respectfully agree are rather unsatisfactory, from the 1959 Act. This goes back to what we were discussing before namely, criticisms of the general structure of the law in that Act. But one must not lose sight of the fact that this Bill is merely aiming at reproducing the structure of that Act in the context of the theatre. Therefore, I should have thought that the only argument that was of any relevance was the argument of whether, in the context of the theatre, there was any case for saying that one ought to have a different formula. On this, I venture to submit to your Lordships that no case has been made out. If one takes, for example, the instance of the play mentioned by the noble Lord, Lord Goodman, or the two plays that I mentioned, if it is assumed that those plays have not sufficient literary merit to qualify on that ground, nevertheless there seems to be no reason why such plays should not be entitled to the benefit of the public good defence just as much as in the case of the written text.
I do not propose to dilate at any further length on this matter. I do not wish to do more than ensure, as I think I have done, that this point be adequately ventilated before your Lordships. I propose not to press the Amendment to a Division, but ask leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
§ Clause 4 [Amendment of law of defamation]:
§ 7.24 p.m.
§ VISCOUNT DILHORNE
moved, in subsection (1), after "defamatory" to insert "or seditious". The noble and learned Viscount said: It might be for the convenience of the Committee—
§ VISCOUNT DILHORNE
I am glad to have the endorsement of the noble Lord, Lord Stonham, even before I have finished the sentence. It is a remarkable experience, and I hope that it may occur frequently. It might be convenient to consider this Amendment together with Amendment No. 5, because they really deal with the same point. The reason I put these Amendments down is this. As the noble Lord, Lord Cobbold, said in his excellent speech on Second Reading, one 932 of the matters that concerned him was the destruction of the protection that now exists for persons who, from their position, cannot have recourse to the ordinary law of the land. There is, of course, quite a category of these. Lord Chancellors sometimes have been defamed, but no Lord Chancellor can properly sue for libel or seek to obtain an injunction; at least, it is not at all easy. But I was not thinking of Lord Chancellors, because the law of sedition does not apply to them. If you are going to remove the existing protection from members of the Royal Family, however, it is important to remind people that this Bill does not affect in the least degree the law relating to sedition.
Therefore, I thought it would be an improvement to the Bill not only to make the Amendment to the law of defamation in Clause 4, but to make it an offence under Clause 6, subject to Clause 7,if there is given a public performance of a play involving the use of threatening, abusive or insulting words or behaviour, any person who (whether for gain or not) presented or directed that performance shall be guilty of an offence under this section if—(a) he did so with seditious intent or with intent to provoke a breach of the peace".If those words are included in those two places, then it will bring to people's notice quite clearly when they look at this Bill that sedition will continue to be unlawful. The noble Lord, Lord Stow Hill, cited the definition of "sedition" from the well-known work, Russell on Crime. It is, as he said, defined in these words:Generally speaking, any words, acts or writing in respect of the public acts or private conduct of the Queen which tend to vilify or disgrace the Queen, or to lessen her in the esteem of her subjects, may be punished as sedition.I feel that it would be a desirable improvement in this Bill to make these two Amendments which, if they are made, make it clear beyond doubt that the general law of sedition is not affected by this Bill, and, furthermore, that certain conduct may bring the person who is guilty of that conduct within the ambit of Clause 6. I beg to move.
Page 3, line 3, after ("defamatory") insert ("or seditious").—(Viscount Dilhorne.]
§ LORD STOW HILL
The noble and learned Viscount, although he proposes an Amendment, argued the case that he puts before the Committee on rather more general grounds. I should like in a moment to respond to him on those more general grounds, but may I just raise what seem to be purely technical difficulties in the proposal that he makes. He argued his case on Clause 4 and Clause 6 together, with the agreement of the Committee, and I should like to say one word with regard to his proposal on Clause 6. If he introduced the words into Clause 6 they would have the effect, I submit, of slightly limiting the ambit of the crime of sedition, because for the purpose of Clause 6 there would have to be not only seditious intent but also the use of threatening, abusive or insulting words or behaviour. I agree that often the utterance of words with seditious intent would be accompanied by words of that type; they would be abusive or insulting. They would not necessarily always be, however, words which fell within that description. Therefore, if the noble and learned Viscount put the words which he proposes in Clause 6 it might have the effect, I know quite unintentionally, of slightly limiting the ambit of the existing Common Law offence of seditious utterance.
May I make my technical answer on his proposal with regard to Clause 4? I have made some study of the matter, with the assistance of the noble Lord, Lord Stonham, and the conclusion I came to with regard to the proposal as to Clause 4 is this. The words in the brackets,(including the law of criminal libel so far as it relates to the publication of defamatory matter)",are essential because there is, as I understand it, no such thing as a criminal offence consisting in the utterance, a speaking of defamatory words. Therefore it is essential to convert the utterance of defamatory words on the stage, if you wish to make that a crime, into libel, as it done by the words in the bracket. But there are clearly two separate offences. One is the offence of uttering the seditious libel; that is to say, using written words with a seditious intent. That is one offence. The other offence is speaking words with a seditious intent.
934 They are two separate, recognised offences, and they are clearly specified, for example, in the well-known case of the Queen v. Burns (the late John Burns, the well-known statesman), which was decided towards the end of the last century and from which I should like to cite in a moment. Therefore there could not have been any drafting justification for inserting into the words in the brackets the word "or seditious", which could have no effect and would lead only to uncertainty as to what the existing law is. That is the technical answer that I would give.
Now may I give him what seems to me the more important answer, which is the answer I think he was asking for, on the substance? It is of course the case that the Sovereign herself, whatever her strict legal rights may be, in practice could not come down to her own courts and ask for damages or for other redress in relation to some contemptible defamatory reference to her. It would not be practicable and it would be indeed unthinkable. I see and very well understand the argument and feelings of the noble Lord, Lord Cobbold, that there should be adequate protection, in ample measure, to safeguard her. My respectful submission to the Committee is that that exists in the Common Law. I know that all noble Lords will start from the position that they do not wish to inhibit the expression of whatever people wish to express unless they must, and they would, I think, agree with me that if the Common Law adequately put a clamp upon unjustifiable references to the Sovereign in sufficient measure it should not be disturbed. My respectful submission to the Committee is that it most certainly does.
The noble and learned Viscount reminded the Committee of the quotation that I gave from Russell. I agree that Russell's work is not that of a judge sitting in the seat of judgment and it has not that degree of authority. On the other hand, noble Lords in this House who practise the law will agree with me that it is a book of the highest authority and that great attention would be paid to it. It seems to me that if one looks for actual judicial authority one finds it in the case of the Queen v. Burns, which was decided in 1886, and I should like to cite one passage which is another form of statement of the ingredients of the offence of seditious utterance.
935 The learned judge is quoting there from Mr. Justice Stevens, whom he cites as saying:A seditious intention is an intention to bring into hatred or contempt or to excite disaffection against the person of Her Majesty, Her heirs or successors."—The passage then goes into a matter which is not relevant to the immediate purpose—…Therefore it is part of the Common Law, and has been for centuries, that it is a criminal offence to give utterance to words with the intention of exciting either hatred or contempt—and I find upon the word 'contempt' —against the Sovereign; indeed the Sovereign, His or Her heirs and successors.That, I would respectfully submit, is very wide, comprehensive and far-reaching law, and the liege who embarks upon a scurrilous, unjustifiable attack upon the Sovereign places himself seriously at risk of criminal prosecution.
Happily it is the fact that the courts of this country rarely have cases of sedition brought before them. Sedition is, as is blasphemy, rarely an offence which is brought to public notice and thought worthy of prosecution in the courts. That, perhaps, is something upon which we should congratulate ourselves. But if the offence is committed it can be prosecuted, the law is there, and I feel the Committee will agree with me without difficulty when I recommend to them that we should cling to the old Common Law which has been accepted by the good sense and judgment of our public and our judges in the evolution of our law, and not tamper with it or change it unless we must. The respectful submission that I make to your Lordships is that it is in this particular context extremely effective; it is very strong and can be used with great effect in an appropriate case.
There will, I suppose, always be, unhappily, the people who from some jaundiced motive will permit themselves extravagancies of utterance. Very often our good sense has told us that it is best to ignore them and take no notice of them. But if they step beyond limits and indulge upon conduct which is wholly unacceptable, there is the criminal law which can be used to punish them. Therefore, I hope that the Committee will feel that the proposals made by the noble and learned Viscount are not really necessary, for the reasons I have given.
There are, in any case, technical difficulties in the way of the proposals he 936 has made; but the more substantial argument, which I hope your Lordships feel I have made and placed before your Lordships for consideration, is that because of the existing provisions of the Common Law, accepted in the courts and well established, it is not necessary to go further; and that if the Common Law is adequate it is in principle not desirable to tamper with it by Statute unless one must. I hope, therefore, that your Lordships will feel that it is best to leave the matter as it is and that in any event the proposals of the noble and learned Viscount would not in themselves be acceptable. But I put it before and impress upon your Lordships that the Common Law is adequate for this purpose. It is very strong and can in a proper case still be used without any inhibition at all.
§ 7.39 p.m.
§ LORD COBBOLD
As the noble and learned Viscount said, this is a point that has been worrying me considerably and I referred to it at some length—not only the matter of the Sovereign and the Royal Family, but living persons in general in those categories who could not easily in practice take advantage of the laws of libel and slander. I quite understand the point made by the noble Lord, Lord Stow Hill. He finished by saying that the existing Common Law was extremely strong. May I ask him to confirm what I think he said earlier: that the effect of putting in these two Amendments would be not only not to strengthen the existing Common Law but in certain respects perhaps to tend to weaken it?
§ LORD STOW HILL
The answer I can certainly give to that question is, "Yes". It would create doubt if it were put into Clause 4, and it would actually limit the ambit of the existing Common Law offence if it were put into Clause 6.
§ VISCOUNT DILHORNE
I am not going to reply to the comments made by the noble Lord, Lord Stow Hill, on the technical grounds of these Amendments. I am not sure that I entirely agree with his comments about the insertion of this into Clause 6, but that is really beside the point. As to his general observations with regard to the law of sedition, I of course agree with him, and I am glad that he has put them on the record. I 937 believe our purpose is the same—to see that the law is enforced.
I should like something to be inserted into the Bill to draw the attention (and that is what I sought to do) of the people reading this Bill to the law of sedition. I think there is a real possibility that a number of people, when this Bill is enacted, will think that if they comply with the requirements of the Bill that will be all that is required of them, and they will run no risk. They are perhaps even more likely to do that because in the past, when they have had the Lord Chamberlain's licence that has been the end of the matter. Now they will not get that licence; they will look at this Bill, and I fear that many may think that if only they comply with the requirements of this Bill they will run no risk. But the noble Lord, Lord Stow Hill, has made it clear that this will not be the case; that if they are seditious they will run the risk of prosecution for that very serious offence. I should like inserted somewhere in this Bill a sentence, which might be only declaratory, to draw attention to the fact that the law of sedition remains unaltered by the Bill. If, between now and Report stage, the noble Lord could consider the insertion of some declaratory provision of that kind, it would serve a useful purpose.
I see that I have got up too soon in an endeavour to say something, because the noble Lord, Lord Stonham, wants to speak, and then my noble friend Lord Dundee. I apologise for rising too soon.
§ THE EARL OF DUNDEE
Your Lordships need not be afraid that I am going to say very much. Indeed, I want only to say one word in support of the noble and learned Viscount, Lord Dilhorne. I entirely accept the legal arguments of the noble Lord, Lord Stow Hill, and others who know far more about the law than I do, that it is not legally necessary to put this into the Bill at all. But it seems to me that a great many people who write plays will not know that, and it might be to their assistance if it were declared in some way in this Bill, although not necessarily in the form of this Amendment.
§ LORD STONHAM
I am quite sure my noble friend will take account of what has been said. I intervene briefly only 938 because of the question put by the noble Lord, Lord Cobbold, to my noble friend Lord Stow Hill. I entirely agree with, and support, the answer given by my noble friend Lord Stow Hill.
In his first speech the noble and learned Viscount made it clear that his Amendments were designed to bring to public notice the fact that sedition is still a crime—I took down his words as near as I could. In his subsequent speech he asked my noble friend to consider whether it might be possible to introduce some words for the removal of doubt.
§ VISCOUNT DILHORNE
No; not for the removal of doubt, but just so that people who read the Act shall be alerted to the fact by a perfectly innocuous provision to the effect that "Nothing in this Act shall in any way affect the law relating to sedition". It is merely a signpost to them; nothing more.
§ LORD STONHAM
With that further clarification from the noble and learned Viscount all I wish to say—and this is addressed particularly to the noble Lord, Lord Cobbold—is that, so far as the Government are concerned, there is no dispute whatever, and we are agreed in our anxiety to protect the Sovereign. But so far as the law is concerned, the view of the Government is, first, that these Amendments add nothing to the law, and secondly that the present law is quite adequate and sufficient.
§ LORD COBBOLD
I thank the noble Lord, Lord Stonham, for what he has said. I am sure we are all trying to arrive at exactly the same thing. Nevertheless, I welcome the last intervention by the noble and learned Viscount. I would not enter into any legal dispute in this company, but having some knowledge of the way that the minds of theatrical producers work, I feel certain that it would be a tremendous advantage if some allusion could be introduced into the Bill on the lines suggested by the noble and learned Viscount, Lord Dilhorne. If that could be considered between now and Report stage I would support the suggestion.
§ VISCOUNT DILHORNE
We have had a useful discussion which I hope will lead to something being done that will meet 939 the desires of everyone. There is no disagreement at all about the objective, and in the hope that this will happen I ask leave to withdraw this Amendment, and at the same time I give notice that I shall not move Amendment No. 5.
§ Amendment, by leave, withdrawn.
§ 7.47 p.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 proceedings for an injunction to restrain the publication of any words concerning the said person spoken in the course of a performance 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.
§ The noble Viscount said: This Amendment raises an important point, and I shall probably receive the answer that it ought to be an Amendment made in relation to the general law of libel, and not an Amendment in regard to the production of plays and matters of that sort. I do not personally attach a great deal of weight to that argument—if it is advanced—because I think perhaps there is special need for a provision of the sort that this Amendment seeks to make in relation to the production of plays, and so on. At the present time, of course, although one has one's rights—most people have—of getting an injunction, and maybe damages, if one is defamed in a play, those rights cease to exist immediately upon death. Yet the production of a play defaming a dead person may cause the greatest degree of unhappiness to members of his family. It seems to me to be wrong, and a defect in our law as it stands at present, that there should be no power in the family to put a stop to that happening.
§ I have drawn this Amendment rather carefully. If the Amendment were accepted, a widow, children and personal representatives of the deceased person would not be able to obtain damages from the producer of the play, or from the people responsible for it, for the defamation, but they would be able to obtain an injunction to stop the performance going on—the performance which could cause (and sometimes I fear does 940 cause) a great deal of suffering to the relatives.
§ In my view, it would be a good thing if a provision of this sort could be extended to the whole field of libel. I remember years ago, when I was a Bar student (and the noble Lord, Lord Stow Hill, may remember the case), an action was brought by the descendants of Mr. Gladstone in respect of the publication of a book which made some very offensive and defamatory observations in relation to him. That action took several days. It was a test case and it failed. I have thought from then until now that that was a defect of our law which ought to be remedied.
§ When the noble Lord, the Lord Chamberlain, exercised his functions, I have no doubt that he had very much in mind the need to protect the living relatives from defamation of the dead. That protection has now gone. Ought we to leave the family exposed to the possibilities of such suffering being inflicted upon them, and without their having any redress? I do not think we should. And I do not myself think that it is any answer to say, if it be said: "Do not give the family this right to obtain an injunction in respect of a play; do not give them the right in this Bill; wait and make an Amendment to the general law of libel".
§ In some cases, of course, it is far best to ignore the scurrilous attack upon a dead man and not to draw attention to it in any way by embarking upon legal proceedings. But in other cases the defamation may be so malicious and so serious, and so wounding, that the close relatives may feel a great desire and a great need to secure redress. As I say, I am not suggesting here that they should have an opportunity of obtaining damages for the defamation. What I do suggest is that they should have the right, if they can satisfy the fudge that the dead man, if living, would have had the right, to say that that particular piece of defamation must be stopped and the right to obtain an injunction from the courts to stop it. That is the simple point of this Amendment.
§ The noble Lord, Lord Cobbold, spoke very movingly, I thought, on Second Reading on this subject. I think it would be a great improvement to this Bill if the noble Lord, Lord Stow Hill, 941 would accept this Amendment. I can appreciate, the Bill having gone through another place, that there may be a certain reluctance to accept any Amendments of this measure in your Lordships' House because that would perhaps mean delay and the Bill having to go back to be reconsidered. Nevertheless, I urge that this would be a desirable improvement of this Bill, and if it is desirable as an amendment to the general law of libel then that amendment of the general law of libel could be made later. I beg to move.
Page 3, line 11, at end insert the said subsection.—(Viscount Dilhorne.)
§ THE EARL OF DUNDEE
I wonder whether I may add one word to the appeal of my noble and learned friend to the noble Lord, Lord Stow Hill, to give particularly favourable consideration to this Amendment. I think that probably all your Lordships will agree that it is in principle right, and in the interests of society, that the widow and children of a deceased person should be given this protection against defamation. My noble friend has anticipated the objection that this Bill might not be the right place to do anything of the kind, because if it is to be done in regard to the stage it ought equally to be done in regard to literature, which this Bill cannot do. But in many years of listening to Parliamentary debates I have known many cases in which it has been generally agreed that although a change in the law in relation to one kind of activity is desirable, it ought not to be done until an omnibus Act can be brought in applying it to all kinds of activity, and then, when the Amendment is withdrawn in the hope that a more general Act will be introduced the matter is forgotten and nothing is done. It seems to me that if this Amendment could be incorporated in the Bill now it would perhaps be a spur or inducement to those who initiate the changes in our law to deal with the general law of libel in relation to other kinds of expression, not on the stage, a little more quickly.
My noble friend has mentioned the case of the defamation of Mr. Gladstone by Captain Wright—a very long time ago, I think nearly 40 years ago—which I also remember. No satisfaction could 942 be obtained. But I think the sequel was that Mr. Gladstone's son had to write a flagrantly libellous letter to The Times about Captain Wright, who had defamed his father, of such a very derogatory nature that Captain Wright simply could not help bringing an action for libel against Mr. Gladstone's son. I am not sure whether it was Lord Gladstone or one of the other sons.
§ SEVERAL NOBLE LORDS: It was a nephew.
§ THE EARL OF DUNDEE
I am obliged to my noble friend. When either the action against the nephew was lost or contemptuous damages were awarded (I forget which), honour was held to have been satisfied.
I think there is also a difference between the spoken and written word: because, after all, the written word is written only once and is not repeated every day, whereas the purpose of this Amendment is to stop something which can be repeated, and will be repeated when a play has a long run, night after night for three months, six months or a year. It therefore seems to me that there is a difference which makes it reasonable that we should deal with this particular matter in this Bill, and not wait for a general Act which will deal with defamatory words in other forms of expression than the stage.
§ LORD GOODMAN
May I say that no one could fail to sympathise with the spirit behind this proposed Amendment. Nothing is more hideous than to vilify the dead, and those of us who professionally have had instances of it, and felt total impotence in the state of the English law, have had the same sort of feeling as the noble and learned Viscount has. But my own feeling is that the practical difficulties in this matter are insurmountable. I think one has to analyse the state of the law and see what practical results would ensue. As the noble Earl, Lord Dundee, said, the point of this remedy would be to arrest the production at an early stage, and that would involve interlocutory proceedings. It would not be possible to wait for the action to come to trial, which might be a year or two years, or even three years.
It has been an absolute principle of the English law of defamation that you cannot obtain an interlocutory injunction 943 in matters of defamation where the defendant says that he is going to plead justification. The reason for that is supported by another very high principle of our Constitution; that is, the right to prevent a man from stopping free speech. If by threatening an injunction you can prevent a man from saying something he thinks he has a right to say, then indeed a very injurious and dangerous state of affairs is brought into being. And it is for that reason that the courts have always applied the principle that if the defendant says he is going to justify publication they will not grant interlocutory relief, except in the rarest case when the judge takes upon himself the mantle of the jury and says, "In my view it is impossible that he could succeed in this case". In all other cases no such relief would be given in the case of a living man.
How then is it possible, with the best will in the world, to introduce a principle of this kind in respect of a dead man? How can we, if a living man could not get such relief, introduce the principle in respect of a dead man, since the acid test is, "Are the words to be justified?". In almost every case, the defendant so abandoned that he would indulge in scurrility about a dead man would have no hesitation in saying "I am going to justify the words". If he says that, how do you deal with the plea of justification in the absence of the only person who can answer the allegation—the dead man? In my view, it is an impossibility. I do not think you can bring a libel action, or an action for defamation, on behalf of a person who is dead. As I have said, I think the practical difficulties in the way are insurmountable. I believe that these are matters which must depend on canons of good taste and good public behaviour.
We recently had an instance out of which perhaps this Amendment arises. There was a play which many of us will recall, which created a good deal of controversy. It related to the late Sir Winston Churchill. Many of us thought that it was perhaps inappropriate that a play of that kind should be considered for production in the National Theatre; the persons in control of the National Theatre also thought so, and it was not produced. It was a play that made certain allegations, and apparently suggested that you 944 could make the allegation now and vindicate it some 50 years hence, on the basis that there might perhaps be some evidence deposited in a Swiss Bank. This is an odd proposition. The point of the matter was that there were people of sound sense and judgment who did not accept these rather outrageous proposals, who thought that a suggestion of this kind was, on the whole, a disreputable suggestion, and that whomsoever may want to put on such a play in the commercial theatre—whether the production itself in the commercial theatre should be stopped seems to me an arguable proposition—it certainly should not appear on the boards of a National Theatre.
I do not believe that you can legislate for these matters. I think they are matters that must be left to the criteria of good taste and decency. On the whole, I do not believe that audiences will go to see plays that vilify the dead. If it is brought to their notice that the play is a social outrage people will stay away. If people will not stay away, I do not think any amount of legislation or any other remedy that one seeks to bestow on them will be of the slightest use. If people are so removed from standards of decency and so abandoned that they want to go and see a play, I do not think legislation will stop them. I do not think they do. I do not think that this is a matter that can be legislated for and that decent standards will prevail. I think it is a matter that should be left to that sort of standard and cannot be left to the courts.
§ 8.3 p.m.
§ LORD LLOYD OF HAMPSTEAD
My Lords, may I add a word to what the noble Lord, Lord Goodman, has just said with so much force and cogency. I would remind your Lordships that this whole question has been fully investigated as recently as 1949 by the Porter Committee on Defamation. They reached the conclusion that the law on this matter should not be altered, first of all, for the sort of reason that Lord Goodman adduced, and also on the ground that it would create a serious restriction on the publication of historical material.
I would point out to your Lordships that as it stands at the moment the Amendment is not limited in any way in 945 point of time. You might have cases where an action is brought thirty or forty years after an individual has died when, assuming at any rate the general law had not been changed, you would have biographies being published about a public man, giving full details of these defamatory allegations. You could have plays on the television, you could have the matter fully discussed in the Press, and there would be no restriction. You would simply have this curious anomaly that you could not make it the subject of a play on the stage.
I venture to suggest to your Lordships that this Amendment, though one naturally feels great sympathy with its objectives, really would lead to so many anomalies that it ought not to be admitted. One exception, perhaps, is the sort of development that has occurred in the United States in the law of privacy. It may be, in regard to non-public men or matters which concern the private lives of public men, that some protection ought to be afforded by the development of the law of privacy, a branch of law which, unhappily, has received no, or but little development in this country so far.
One would have thought that the law of defamation seems an inappropriate instrument in regard to deceased persons. The law in its wisdom over the centuries has steadfastly refused to extend that law to protect the relatives of a deceased person and, on the whole, on sound practical grounds, although in some marginal cases one may naturally feel tremendous sympathy for the widow or children of a recently deceased person who is being traduced in this way and with no legal remedy available. But as the noble Lord, Lord Goodman, said, these are matters basically to be left to good taste, and cannot adequately be dealt with by the cumbersome machinery of the law.
§ 8.6 p.m.
§ LORD CONESFORD
In spite of the cogent arguments brought forward by the noble Lord, Lord Goodman, and the noble Lord, Lord Lloyd of Hampstead, I think that this question is by no means simple. I was greatly troubled, as I think many others were, by the particular case to which the noble Lord, Lord Goodman, referred. The difficulty seems to me to be that, if we do not do some- 946 thing in this matter, it may be most attractive for some of the less talented playwrights, who may not otherwise get great attention for their plays or great popularity, to publish some rather foul libel on some great man recently dead, thinking that they can thus produce a great commercial success. In the particular case mentioned by the noble Lord, Lord Goodman, as he rightly said, those responsible for the National Theatre came to the right conclusion and refused permission for its production. What was the result? A number of eminent actors and producers and others said that this was an outrageous attack on artistic freedom and all the rest of it.
I quite agree that it is extremely difficult to deal with this matter by the law of libel. Hitherto, so far as the theatre is concerned, we have got along without having such an extension of the law. But then, of course, we had a censorship. If we are abolishing the censorship, it seems to me that we may have a quite considerable evil, since this form of disreputable production of libellous plays may become quite attractive.
In regard to what the noble Lord, Lord Goodman, said, of course you could not get an interim injunction if justification was going to be pleaded. I entirely agree with that. But, if there were such an amendment of the law as my noble and learned friend has suggested in his Amendment, those concerned would not risk such a production unless there were some basis for their contention. In this particular case, had the proposed Amendment of my noble friend been the law of the land I think it is inconceivable that they would have risked defaming Sir Winston Churchill in the way proposed in the play, because I do not think that a court of law would have had much difficulty in finding that this was defamation, without the necessity of the evidence of Sir Winston. I think it might have been possible to prove aliunde the falsity of the allegations that were made.
I am not saying that this Amendment is the right remedy. But I think we may be driven to the view that some remedy is necessary, if the result of our not fashion without a shadow of evidence. There was another recent play that did having any remedy is that we have plays defaming the dead in quite monstrous the same, I believe, about Queen Victoria 947 and Florence Nightingale. This sort of defamation is becoming quite attractive to some playwrights, and I think it may do much more injury than a similar libel in a book.
There is a further reason—and I agree that the point I am now making may tell both ways, both in favour of my argument and against it. If censorship is to be abolished (and in view of the unanimous report of the Committee I think few people would dispute the case for that; indeed, it has been admitted by the unopposed Second Reading that this Bill has had) and that abolition is to be followed by a number of these outrageous libels of the dead, then I think people will say that censorship was much more necessary than had hitherto been supposed. In that event the abolition of censorship may be by no means the permanent thing that no doubt we all hope for if this Bill is passed.
For these reasons, in spite of what the noble Lord, Lord Goodman, has said, which I found very persuasive and with which in many ways I agree, I think there may be something to be said for such an Amendment as my noble and learned friend is putting forward, because, unless there is some remedy, the evil may become intolerable.
§ LORD COBBOLD
I do not wish to interfere with the discussion on this Amendment. I said what I had to say on the subject in the course of the Second Reading debate. But to put the Record straight, I should like just to say there has been a good deal of reference to one particular play, but the words I used in the Second Reading debate arose from a number of plays over a number of years and not over one particular play.
§ LORD ILFORD
This is certainly not a very straightforward matter, but I think we are all agreed on this: that if it is possible to devise legal procedures which would restrain defamation of this nature, we should all welcome such an arrangement. I think that such an arrangement might be possible if the Amendment were redrafted in a way that would get over the difficulty to which the noble Lord, Lord Goodman, referred. The noble Lord, Lord Goodman, pointed out, as is perfectly true, that if a defendant proposes to plead justification, pleads that the words were true in substance and 948 in fact—which is the plea of justification—the court will not grant an injunction. It is perfectly true that they will not grant an injunction before the trial, acting, rightly I think, on the view that if the words are true a person ought not to be prevented from speaking. But the court always grants an injunction, if an injunction is asked for, after judgment and the plaintiff is successful.
It is perfectly true that if an action were brought for an injunction alone under this Amendment the action might have to take its course before the injunction was obtained. But I see no reason why the injunction should not be granted after the action had successfully shown that the deceased person would have been entitled to damages for defamation had he still been alive. I would not accept altogether the noble Lord's view based on the conduct of a normal action for defamation in the courts. I think I can see some ways in which this Amendment might be redrafted. In view, I think, of the universal desire of us all that it should be given the effect of law, I hope that my noble and learned friend will be willing to consider another Amendment on the Report stage.
§ 8.15 p.m.
§ VISCOUNT NORWICH
I am no lawyer. When I hear the noble Lord, Lord Goodman, tell us that no action of the kind foreseen in this Amendment could possibly have any success, I naturally, though reluctantly, accept his word for it. But I wonder whether that is the question, or the only question that we need to ask ourselves. I am entirely in agreement with the noble Lord, Lord Conesford, when he says: should we not also ask ourselves whether the presence of an Amendment of this kind, even if it did not really enable any action to be taken in the courts, would at least deter possible producers, presenters, actors, playwrights from putting forward a play of the type we are talking about. If there is any hope at all that such an Amendment would have this deterrent effect, then I should think this Amendment is well worth having.
I think that possibly there may be a case for putting in some sort of time limit —possibly 20 years, or something like that, after the death of the person concerned. I am also a little worried about the phrase "personal representative", 949 which I do not quite understand. But these are minor points, and basically I should have thought there was a very good case for keeping this Amendment.
§ LORD STOW HILL
The noble Lord who has just sat down suggested a possible 20-year time limit. My noble friend Lord Lloyd of Hampstead pointed out that in the Amendment there is no time limit. The noble Lord, Lord Goodman, pointed out that there were difficulties about interlocutory injunctions. The noble Lord, Lord Ilford, said that if you cannot get an interlocutory injunction you can get an injunction, when the action comes to trial on its merits, at the hearing. I refer back to those points, if I may respectfully do so, to indicate that this is not a simple matter—it is extremely complex. I think we are all extremely sympathetic to the motive which has prompted the noble and learned Viscount to put this Amendment on the Order Paper. It is contemptible, when a person is dead, that his relatives have to stand by and watch his reputation shattered by irresponsible attacks upon him. On that we are all agreed.
Nevertheless, the answer, or the advice, I would respectfully offer to the Committee is that which the noble and learned Viscount foreshadowed that I might give. It may well be that the existing law of defamation is incomplete. It may well be that we ought to alter it so as to protect the reputation of deceased persons; and the arguments, I should have thought, as we have listened to them round the House, seemed to preponderate in favour of so doing. But what I would respectfully press upon the Committee is that it surely cannot be right, as it were by a side wind, and without mature consideration, to include such a matter—which is bristling with difficulties, some of which have been indicated by noble Lords in the course of our quite short but extremely interesting discussion—in this Bill.
The name of the present Lord Chancellor will be remembered for his admirable wisdom in setting up the Law Commission. I should have thought that this was just the sort of problem which might well be submitted to them. I had forgotten, until my noble friend Lord Lloyd reminded us, that the Royal Commission over which the late Lord Porter presided had actually pronounced on this particu- 950 lar point. I forget the reasoning, except in so far as he reminded us of it, which led to their conclusion, but I would respectfully ask the Committee not to seek that this Amendment should be made. In itself it is, as I have tried to point out, not wholly adequate, if for no other reason than that it does not say what limit in time, if there is to be any limit, is to apply. If somebody has been dead 70 years and his daughter is still alive, is there to be an action to protect his reputation? There is a lot to be said for it, but it is not a change in the law that one would make lightly. One can make it only after prolonged and mature consideration.
May I advert to one point which was made by the noble Earl, Lord Dundee? He said that it is useful to prompt the Legislature to make a more radical change by making a beginning with plays. He went on to say that a play is produced night after night and that a book is printed once and for ever. Therefore he submitted that it was reasonable to make this change in the case of plays, whereas it would be reasonable at the same time to reserve for further consideration the question of books. Is that a right way of looking at it? Let us take the case of a best-seller. One can think of a dozen best-seller whose books are on sale in every town of England and are to be found on bookstalls in this country, in the United States, in Australia where I was last summer—in fact, one sees these works all over the world. Suppose such a Person selects as his theme somebody w ho is known to the public and who has recently died, or who died some years ago and, faintly disguising his name, attributes to that deceased person the most detestable qualities. Surely the harm and the wickedness done by a publication of that sort infinitely transcends the very worst that could be done even by a prolonged and successful play.
It seems quite illogical and quite unreasonable to make a change of this sort only in the case of plays—even if one could take the chance of getting it right without mature consideration. And if, by chance, we did get it right and managed to skate round the difficulties which have bristled during the course of our discussion this evening it would be quite unreasonable to leave the law applying to books, newspaper articles 951 and other written publications wholly unchanged. It may be that the law should be changed, but if it is changed I submit that it should be done after careful consideration by Parliament as part of a major and radical change of the law of libel in this particular respect. I say sincerely that I have the greatest sympathy with the noble Viscount's motives, and not a single noble Lord has spoken on this matter in any contrary sense, but I submit that it would be unwise to accept his proposal. I hope that it may be a matter which the Law Commission will take into consideration, to see whether the views arrived at by the Royal Commission over which Lord Porter presided require revision and whether Parliament should now come to a different conclusion than that which was recommended by the Royal Commission. What I am asking your Lordships to say is that, whatever the right way of going about it, the way which is proposed by the noble and learned Viscount in his Amendment is not one which ought to be regarded as acceptable by this Committee. I hope that in the circumstances he will not press the Amendment.
§ VISCOUNT DILHORNE
The noble Lord, Lord Stow Hill, sought to draw attention to the serious consequences that might follow from the publication of a best seller which was defamatory of a dead person. I do not wish to try to assess whether publication of a book could be more harmful to the feelings of the family of a dead man than the production of a play. It may well be that there is a strong case for altering the law of libel in relation to all forms of publication. But that is not the question that we have to consider to-day. The question we are now considering is whether, when censorship is removed, there should be full liberty, perhaps restrained only by public opinion, to injure the feelings of the family of a dead man by making money out of the production of a play, or the production of what at present is commonly called "satire". In relation to that question, when one takes away the protection which now exists it does not seem any answer to say, "Leave it to the Law Commission to report upon. Leave it until we alter the whole law of libel or until that law has 952 been examined". There is a case for taking a step forward, albeit a limited step, on this particular matter, and the need for it arises because of Clause 1.
I was grateful for the intervention of the noble Viscount, Lord Norwich, but I think he was wrong in one respect. The noble Lord, Lord Goodman, did not say that if this Amendment was carried an action brought could not be successful. What he said was that one cannot get an injunction if the defendant puts forward a plea of justification, and he was quite right. But the plea of justification must surely have some reality. In relation to some of the satire which is portrayed nowadays (it is called "satire" but it is really defamation) in considering what is published nobody would for one moment think that it was capable of justification at all. I agree that if this Amendment were carried it would give a limited remedy. It may be that one should go further, but I should be content with this as a start.
The noble Lord, Lord Lloyd, made a most interesting speech and referred to the time limit. If this Amendment were carried, I should be willing to make a further Amendment on Report to insert a time limit. I had in mind a much shorter period than 20 years. Is not the publication of various documents now withheld for 30 years lest publication may injure the reputation of some living statesman? Yet directly upon his death that reputation can be injured by any playright who seeks to make capital out of publishing stuff which is not only defamatory but which is almost certainly false. Therefore I feel that I could meet one of the main points put forward by Lord Lloyd. He drew attention to the historical features, and I am grateful to him for reminding me of the Commission presided over by Lord Porter. Like the noble Lord, Lord Stow Hill, I had forgotten the reason for that Commission.
I believe that the case between biographies and books and the case we are considering can be carefully distinguished. We have had a most useful discussion. I should like to consider what has been said. I am in the difficulty that if I divide the House the consequences might be that proceedings on this Bill at this late hour would be suspended. I do not want to risk that, but if it could be recognised that I could put 953 down this Amendment or a similar Amendment on Report—I hope that would not be regarded as contrary to the practice of the House—I will withdraw this Amendment so as to give everybody a further opportunity to consider this most important principle. If that is understood, on that basis I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 agreed to.
§ Clauses 5 and 6 agreed to.
§ Clause 7 [Exceptions for performances given in certain circumstances]:
§ On Question, Whether Clause 7 shall stand part of the Bill?
§ 8.30 p.m.
§ LORD LLOYD OF HAMPSTEAD
I think I can take this point very shortly. This is what is sometimes referred to as a probing Amendment, and the reason why I have asked that your Lordships should omit this clause is that I am puzzled as to what purpose it serves. Perhaps I may indicate very briefly what seem to me to be the difficulties about it. Subsection (1) says that Clauses 2 to 4 are not to apply to a performance of a play given on a domestic occasion; while subsection (2) says that Clauses 2 to 6 shall not apply to a performance given solely or primarily for a rehearsal or a recorded performance.
The position seems to be that, if this clause stands, a number of the apparently desirable reforms which are introduced by this Bill in regard to theatrical performances are excluded in those cases, such as the new definition of "obscenity". Again, instead of having offences under this Bill, there would simply be the old Common Law offences still applying—the Vagrancy Act and matters of that kind. Again, the defence of "public good" would not be applicable in the case of such performances, and one would have to treat a case as slander and not as libel. One finds difficulty in seeing what disadvantage there is in treating all such utterances in the course of the performance of a play as libel rather than slander, which in any case is generally recognised to be a rather unsatisfactory distinction. So it seems to me that there is no great 954 advantage, if any advantage, in this rather complicated clause, and I submit that the law would be simpler and better if it were omitted so that the general reforming law introduced by this Bill would apply to all theatrical performances, including domestic performances, rehearsals and recorded performances.
§ LORD STOW HILL
I quite follow that the desire of my noble friend is really to see why a further step was not taken, as it were, to simplify and codify the law. May I indicate to him the reasons which, as I understand them, precluded that course? May I take the different types of performance in sequence?
First, it is provided that nothing in Clauses 2 to 4 relating to obscenity and so on should apply to a play given on a domestic occasion in a private dwelling. It was thought preferable to leave that as it is, subject to the existing law. It may be said, "Yes, but that means that you leave the persons who before in those circumstances were liable to be prosecuted for a criminal conspiracy to corrupt public morals still so liable". I suppose that anything is possible in this weird world, but if one considers what might happen in a drawing room at a Christmas party when the children and grandchildren arrive, and one thinks of some real likelihood of a prosecution for conspiracy to corrupt public morals in a case of that sort, the likelihood diminishes into the invisible so rapidly that I hope my noble friend will agree that it is best to leave that as it is at the moment.
After all, if you wish to make Clauses 2 to 4 apply to private social functions of that sort, then I suppose, logically, you must also make the enforcement provisions applicable to parties of that sort. You have to make the provisions of Clause 10, which enables a police officer to require scripts to be furnished to him, applicable to private parties of that sort. That would be quite unthinkable. Equally, I suppose you have to make Clause 12 an enforcement clause applicable to parties of that sort, which again is unthinkable. I am quite sure that my noble friend will agree that to change the law so as to involve the possibility of invasion of private social 955 functions, family gatherings, almost charades, liable to a visitation by the police to see the script used by the children participating in the party, would be quite unthinkable.
Now may I come to the other points? The reason for the exclusion of a rehearsal was this, as I understand it. A rehearsal consists of the practising of the constituent parts of what later on becomes a play as a whole. You rehearse Scene 1, Scene 2 and so on, perhaps on different days. The play is then being worked up in different sections, but ultimately it is conglomerated into a complete whole. The whole point of Clause 2 is that the performance is obscene if taken as a whole its effect is such as is likely to corrupt.
What was thought by those responsible for the framing of this measure was this. It is illogical and contrary to the purpose and scheme of the Bill as a whole to seek to apply the provisions of Clause 2, which ex hypothesi are applicable only to the completed final product as a whole, to performances of what are really integral and separate portions of it. That is why it was thought hardly fair to those conducting a rehearsal. After all, rehearsals are conducted in private, and the whole purpose of this clause is to apply to productions which are public, or public in the sense that they are performed in a club or something of that sort. I hope my noble friend will think that a satisfactory reason for excluding rehearsals.
With regard to those types of performance listed in subsection (2)(b), the reason why they were excluded was this. There are already existing provisions, not all of the same sort, which provide, as it were, partly a voluntary censorship and partly a statutory one—a statutory one in so far as the Television Act 1964 is applicable. That imposes a standard of conduct in the formulating of television displays. Apart from that, in regard to the broadcast and the cinematograph film, there is a voluntary system of censorship in operation at this moment. Therefore, this clause was framed in this way—I do not want to repeat myself—because of the general considerations which I have sought to outline. While I shall be delighted to try to answer any additional questions which my noble 956 friend may like to put, I hope he will think that that is, at any rate, a rational framework upon which to construct this clause.
§ LORD GOODMAN
So far as the majority of the matters in this clause are concerned, they are not really of great importance because I do not think that a recording or the production of a film could be considered a performance of a play. But I am a little disturbed about the question of rehearsals, for reasons which I invite the noble Lord to consider sympathetically.
It is true that ordinarily the beginning of the rehearsal is rather disjointed. A small portion is acted in various places and as the play goes on larger portions become assembled and the jig-saw is put together. Finally, there is the dress rehearsal of the whole play with a great number of people present. I am sure there is nothing sinister behind the drafting of this clause, but it would be possible—and I think it is undesirable that the possibility should exist—for an adroit prosecutor to decide, having heard of the existence of a prospective performance that he did not like, to invade that performance and to prosecute in relation to that performance, in circumstances which would not leave available to the defendants a defence which they would have had if he had waited another day for the first public performance. This seems to me, if I may say so, to be wrong. It does not seem to be right that if a prosecution arises out of a rehearsal there should not then be available to the defendants precisely the same defences as would be available if the play had been produced in public.
On the point made by the noble Lord, that you have of course to consider the work as a whole, it seems to me no hardship to anyone that what you have to consider is that work which was in fact performed. You consider as a whole that portion of the play upon which the prosecution was based. I do not think there is any logical reason why, on that account, a rehearsal should not be afforded precisely the same protection and come within the same section as an ordinary public production.
§ 8.41 p.m.
§ LORD STOW HILL
May I seek to give such answer as I can to the points 957 which the noble Lord has made? His real anxieties, I think I am right in interpreting him, are about the dress rehearsal stage, or the stages immediately before that. I should like to put these considerations to him. The Bill is really designed for public performances in the sense I have described—performances in public before an audience, or performances in a club, or something of the sort. At the dress rehearsal stage, one is still in private.
If you are going to apply the provisions of, say, Clause 2 to the rehearsal, as I ventured to submit when I was answering my noble friend Lord Lloyd, logically you have also, I suppose, to provide the enforcement provisions. It would be unreasonable, I should have thought, that when the actors were still in the stage of preparation—and they still are even when the dress rehearsal has arrived, though admittedly at an advanced stage of preparation—a police officer should be entitled, if a warrant were issued for him to do so, to insist on going in to watch a dress rehearsal. It is not ready for public presentation then, although it may be nearly ready. I would therefore respectfully submit to the noble Lord that it is not a desirable change to make, and I hope he will agree that, on balance, it is best to leave it.
Quite apart from that, what is the risk? If one considers what is the Common Law, it is largely, I suppose, that which is stated in the case of Shaw v. The Director of Public Prosecutions, to which reference has been made. Is there any real likelihood, in practice, except in the most rare circumstances, of a rehearsal constituting anything which could remotely come within the scope of the Shaw case? Therefore, I will answer the noble Lord by submitting to your Lordships' Committee, in the first place, that the likelihood of the Common Law applying is very small in the case of a rehearsal; and, secondly, that if one did assimilate the rehearsal to the public performance one would have to annex to the rehearsal a liability for enforcement procedures which are really quite inappropriate to it. I hope the noble Lord will feel satisfied by that answer.
§ LORD SOMERS
I have listened very carefully to the noble Lord, and I quite 958 agree with what he says about the question of rehearsals. For one thing, if a play is considered to be harmful in any of the ways which are listed under this Bill the rehearsal presumably will not in any case take place, since nobody is going to try to produce a play without making quite certain that it is going to get a public performance.
But what I want to emphasise is another part of Clause 7, the part which relates to making the play into cinematograph films, broadcasts or records. I do not know what the law is as regards plays produced either on television or on sound radio, but I have many times wished that it could be a little tighter, and I think that to exclude from this Bill the broadcasting of plays would be a very great mistake. One must remember that only a comparatively minor proportion of the population go to the theatre and see a play, whereas practically every house in this country has either a television set or a sound radio, or both. What is more, of course, young children are there looking at television the whole time; and one has to remember that the potential of the B.B.C. to do harm of the kind implied in this Bill is very much greater than that of the theatre. That is why I feel that it should not be excepted, as it is under Clause 7, from all the liabilities to which theatres are subject.
The noble Lord, Lord Stow Hill, and I had a talk, after the Second Reading of this Bill, about various subjects concerning the education of children, and I agree with a great deal that he said. I do not think one should keep children in a sort of cloister, where they hear nothing at all about the outside world. But what I think is harmful is when things like terrorism, immoral actions and so on are glamorised; in other words, made to seem desirable and adventurous. Those are the occasions when they are going to do children some harm, and I am afraid there is too much of that ort of thing on television to-day. I should be very grateful indeed if I could see that part of Clause 7, at any rate, taken out of the Bill.
§ LORD STOW HILL
The noble Lord's anxiety—and I know very well how strongly he feels about this sort of question—is really directed to what I may call the finished product, the television performance or the broadcast performance, 959 whereas the clause to which he is speaking really deals only with the preliminary steps to the creation of that finished product. To take an example, it deals with a performance givento enable … the performance to be broadcast;…",as the noble Lord will see if he looks at subsection (2), paragraph (b) (ii). But if and in so far as effect should be given to the anxieties which the noble Lord expresses, surely this particular clause is not the place for it. It may be—and I say nothing either way with regard to it—that there should be some more comprehensive control. I do not express a view about that; but, if so, it could not be in this particular clause. What this clause does is simply to single out certain types of performance—namely, those which are listed in paragraph (b) of subsection (2)—and say that the new provisions contained in, for example, Clause 2, creating the new criminal offence, shall not be applicable to them. But it does not exonerate them from the existing law. The existing law is left intact in its application to performances of that type.
So, if I may sum up, I would say to the noble Lord: first, Clause 7 does not exonerate those performances from the existing law. If they are criminal under the existing law they remain criminal, despite the provisions of Clause 7. Secondly, in any event, those performances are only the preliminary steps taken to the finished product which causes anxiety to the noble Lord as to its possible effect upon children who view the performance of either the broadcast or the television display. So I hope he will think that, so far as his anxieties are concerned, no change is necessary in Clause 7.
§ LORD SOMERS
May I say a word in reply to the noble Lord? I quite understand what he says; but I have seldom known of a preliminary step being taken in broadcasting which did not become a finished product.
§ LORD LLOYD OF HAMPSTEAD
I am grateful to my noble friend Lord Stow Hill for his careful explanation of this clause. I can quite well see that it appears to meet certain points that I had not fully appreciated, but I am bound to say, equally, that I fear it does create certain difficulties. As I indicated at the 960 outset, however, I have no desire to press this Amendment, which was really intended as a probing Amendment in order that we could understand, or that I could understand, what was the precise objective of this Clause.
§ Clause 7 agreed to.
§ Clause 8 [Restriction on institution of proceedings]:
§ 8.52 p.m.
LORD GOODMAN moved to add to the clause:
(2) In exercising his functions under this section the Attorney General shall be advised by a Committee consisting of not less than three members selected by him from a panel of six persons appointed by the Secretary of State for Home Affairs as being persons having a wide knowledge of the arts and representing informed public opinion.
(3) The Attorney General shall not institute a prosecution under sections 2, 5 or 6 of this Act in relation to a play without first obtaining the advice of the said Committee.
§ The noble Lord said: One is treading on delicate ground with this Amendment. I was not present at the Second Reading debate but I read the report in Hansard and I observed that even the most gentle and mildest of men, such as the noble Lord who is conducting the proceedings in relation to the Bill, seem to grow incensed at the suggestion that the Attorney General ought not to have complete, unfettered and absolute discretion in these matters. May I hasten to say, for fear that he may become incensed with me, that I do not intend the slightest reflection on any Attorney General or upon that lofty and important office; but I unapologetically say that I do not think that this is a job for lawyers without advice. That is in no way a disparagement of lawyers. It would be rather absurd for me to say that I have no great respect for lawyers. Indeed I have, but I think that this is a specialised function. It is not without significance that, so far as I can remember, no Lord Chamberlain has ever been a practising lawyer.
§ Lawyers are people who have a particular job to do and who approach it with a particular state of mind. I think it can do nothing but good if we adopt the very moderate proposal that I have incorporated in this Amendment, which is simply that there should be an advisory committee and that the Attorney 961 General should ask their advice—not that he should act upon it or that he should be inhibited from instituting any prosecution without that advice, or that there should be any disqualifying consequences of his failure to take the advice, but simply that an advisory committee should be established and that he should resort to that Committee before instituting proceedings.
§ This is a matter about which one could talk at great length. I do not intend to do that; but there is one observation I should like to make regarding this matter. There have been two prosecutions which have been the most significant prosecutions in this matter in relation to books in recent years. The first was what is now the historical Lady Chatterley prosecution. In that prosecution, which ended in the acquittal of Lady Chatterley, the vindication of that lady and her return to a vacant place in the collected works of D. H. Lawrence which had long been empty, not a single expert witness was found available for the prosecution to say that the book was obscene. The only people who launched the prosecution and who maintained the prosecution, with enormous vigour and positive ferocity, were lawyers. No witness could be found in rebuttal of the expert evidence launched in avalanches by the defence to say that the hook ought not to be considered obscene. That is very significant. It justifies at least the tenor of the Amendment that I am proposing this evening.
§ The other matter I would advance in support of this Amendment is in relation to Last Exit to Brooklyn. This was a much more difficult book to deal with, but, in my view, it was not obscene in any sense of being designed to titillate or bring about promiscuity. It was, I think, a hook of a singularly unattractive and ugly character, but, nevertheless, in ray view not obscene. In that case, when the Home Secretary consulted his experts, when it was a question initially of a prosecution by the Director of Prosecutions his experts told him not to prosecute. That prosecution would not have taken place had the experts been consulted in the matter. That seems to me to vindicate the suggestion that this is not a matter for lawyers. I know that in the Last Exit case there was no reason to suppose that the Attorney General would 962 have prosecuted unprompted or that he wanted to prosecute. He was compelled to do so by the private prosecution instituted in the court below through the activities of a particular Member of Parliament who, I have no doubt, acted in accordance with the dictates of his conscience——and no-one can be critical of that. But it is significant in those two cases there would have been no prosecution if persons who are literate in the sense in which literacy is important in these matters had been consulted. I think it would be complacent for lawyers to say, "We know best. We can deal with these matters. It is unnecessary for us to take expert advice when we are dealing with these matters". It is important that lawyers should be not only willing but ready and willing to accept such advice and to show that they are prepared to be immensely co-operative in fields where they cannot claim expert knowledge.
§ I have been going to the theatre for many years. It was a regular pastime and it almost became a matter of routine for me. No occupation gives me greater delight. I hope it will not be regarded as invidious if I say that I cannot remember ever having met an Attorney General at any of those theatrical productions. That, too, is a matter of some significance. It is not in the least a reflection on Attorney Generals. It is simply the fact, I think, that they need some assistance in dealing with these matters. I venture to invite the noble Lord to consider this proposal as a moderate proposal and one which he should be very forthcoming in meeting. I beg to move.
Page 5, line 5, at end insert the sail subsections.—(Lord Goodman.)
§ LORD LLOYD OF HAMPSTEAD
May I add one brief word in support of this Amendment? As the noble Lord, Lord Goodman indicated, and as we all know, the Attorney General, all Attorney Generals, can be relied upon to be admirable lawyers, men of complete integrity and men who will bring a completely dispassionate mind to bear on the issues with which they deal, but the fact is that Attorney Generals may (and sometimes do) know little of literature. They may have little knowledge of the theatre and may be out of touch with contemporary trends in it. All that this 963 Amendment seeks to do is to impose upon them the duty of consulting an expert Committee. They are not bound in any way to accept that advice but, at least, it provides that useful safeguard that they will seek proper advice.
Even under existing conditions, as one knows, the Director of Prosecutions or Attorney General does, in fact, take advice, and no doubt takes advice from proper and suitable quarters. The main advantage of the Bill, if amended in this way, would be that it would provide adequate and proper machinery for the purpose and one in which the theatrical world as a whole and the public could have some confidence. And it would go far not only to fortify the judgment of the Attorney General but also to give him considerable aid and comfort in reaching what must often be a most difficult and invidious decision. Therefore I would urge upon the Committee that it would be of value to introduce this Amendment into the Bill.
§ LORD STOW HILL
I must say at once that I am sorry I cannot go with my noble friend or with the noble Lord, Lord Goodman, in his proposal. I feel that it is a proposal which is not really helpful. May I give some reasons? I take it—I do not know but I assume—that the noble Lord intended his Amendment to apply to the functions of the Attorney General in regard both to instituting proceedings himself and to giving consent to other people to institute them. I say that I am doubtful about it, because it is contrary to what he said.
I listened to his speech and he said that in the case of the prosecution of Last Exit to Brooklyn the Attorney General decided not to institute proceedings without having the advice of any extra committee of this sort. Then he gave consent to somebody else to institute proceedings, that being something which is not covered by the noble Lord's Amendment. If the noble Lord will look at subsection (3) he will see that it states:The Attorney General shall not institute a prosecution under section 2 of this Act in relation to a play without obtaining the advice of the said Committee.That is perhaps just a defect in the drafting which the noble Lord did not intend, and would wish to change—I see that he is nodding his head. At any rate, the 964 Amendment would not have prevented any prosecution of Last Exit to Brooklyn. Not having read the book, I say nothing about whether that was or was not a well-justified prosecution.
The noble Lord said he had a poor opinion from some points of view of Attorney Generals. I once had the distinction of holding that office, and I can only say that I am very surprised that I have never had the privilege of meeting the noble Lord at the theatre. I adore going to the theatre, whenever I get the chance. Perhaps one of these days I shall have the privilege of meeting him there; and the same could be said of all the other Attorney Generals that I have known. After all, what has the Attorney General to do? He has to look at the book, or the play, or whatever it is that is in question; he has to read it and consider it, and use his judgment, and then ask himself the question, "Is it in the public interest that there should be a prosecution here?" If he cannot read a book or see a play and answer that question to himself, he ought not to be Attorney General.
I very respectfully protest against the view that Attorney Generals are as ignorant, in a literary sense, as the noble Lord seems to think. I have known them all intimately since the war, and I honestly do not think that his judgment on them is well-founded. So far as I know, they have been cultured, intelligent persons, and when they have time—which may not be as often as they would like—they enjoy reading literature. I certainly did. I have much more time now, more than I want, and I read a great deal of literature—I have always done so.
I should always be delighted to consult this expert committee of three persons out of six,appointed by the Secretary of State for Home Affairs as being persons having a wide knowledge of the arts and representing informed public opinion.If there is any real doubt as to the decision I should come to about a particular work, there is nothing to stop me from asking people. There are plenty of people of that sort around. I have always found them extremely accommodating and kind if I have asked their opinion, and I should hope that any Attorney General would find no difficulty, if he felt uncertainty, in ringing up a friend and saying, "Have you read this book? What 965 do you think of it?" It might be a friend who was a professor of English literature at Oxford, or something of the sort.
How is this committee to be appointed? Who are the people to be appointed as representing informed public opinion? I take it that ex-Attorney Generals would be ineligible for such an appointment—and I see that the noble Lord nods his head. I am sorry, but I cannot quite agree with him on that. Regarding "wide knowledge of the arts" I think that a good many of them would qualify for that as well. But what does the Amendment do? It puts an obligation on the Attorney General, before he institutes a prosecution, only to ask such people what they think, not to act in accordance with their views. He may cordially disagree with them.
What is the effect of asking them? Is he then, in the exercise of his discretion, to say to himself, "I am probably wrong, they are probably right, and therefore I will not do what I am convinced that I ought to do"? How on earth is this going to work? How is the Home Secretary to go about selecting six people who have these qualifications which, I should have thought, are happily, possessed by a very large section of intelligent and educated persons in this country?
I really think that the noble Lord and my noble friend, if they consider this Amendment, ought not to press it. It cannot do any good. Any Attorney General who has any common sense, if he wants to know what people think about a book, can ask them. It is not worth while taking statutory space and printing these words into a Statute to require a sensible person to do what he would probably do anyhow if he wanted the information. In any event, he would be. I should hope, a person who (and may I say it, I hope, not too immodestly), if he had reached the position of Attorney General, would have some education and would be able to form a judgment about a hook or a play, and answer himself the question, "Should a prosecution in the public interest be launched here?"
§ 9.5 p.m.
§ LORD WILLIS
I should like to thrust, if I may, in support of this Amendment, not necessarily in its present form entirely, because I believe there are some weaknesses in it. But I urge the noble 966 and learned Lord, Lord Stow Hill, not to throw it away quite so easily as he appears to be doing and to listen now, not to an expert panel, but to some people who have some very deep feelings about this matter. I think the reason why the noble Lord, Lord Goodman, never met an Attorney General at the theatre is because it is true, is it not? that Attorney Generals cannot nowadays afford to sit in the stalls and lawyers can. I think that might be one reason.
If I may say so, the noble and learned Lord, Lord Stow Hill, has painted a rather rosy picture of the ideal Attorney General. One would like to think that such Attorney Generals would always exist and one would always find them. But is it not true, and cannot we find, taking the period of the last twenty years, many instances of eminent men in public office, in the judiciary and in other places, who have a blind spot so far as literature is concerned'? And, so far as some aspects of literature are concerned, cannot we find people who do not act in the informed and intelligent way in which we would hope that all Attorney Generals might act?
All this Amendment does is to make a very mild suggestion, and lay upon the Attorney General the obligation of consultation. It has been suggested that he would consult anyway, if he were an intelligent man, and that is quite true; but it seems to me to be inadequate that we should rely on his ringing up a professorial friend who he knows is interested in literature and saying, "What do you think of this book, old boy?" Or, "What do you think of this play, old boy?" Or, "Will you pop clown to Leatherhead and see this new production for me? I should like your view". That, if I may say so, seems to me a tremendously cack-handed way of taking what appears to be a rather important decision. Suppose there is an occasion when the Attorney General feels that he would like advice, and he rings up a friend at midnight. If the Attorney General is in that state of doubt and wishes to consult someone, would it not be better if he had a panel of people upon whom he could call officially? What is wrong with that? I would ask the noble Lord not to be quite so reluctant about this but to see that it does have strong advantages 967 and would help the Attorney General to provide a small safeguard in another direction. It does not upset the balance of the Bill and it seems worth while, though, as I said at the beginning, not necessarily in its present form.
I think it might be invidious if these people were named—I do not know. It may be that six are not enough. And it may be difficult to find people who, having a wide knowledge of the arts, are also in touch with informed public opinion. In my experience, people with a knowledge of the arts are sometimes not in touch with public opinion, and vice versa. But I think that this proposal would help and not hinder. Why not accept the principle?
§ THE EARL OF IDDESLEIGH
I married into a literary family, and no one has greater respect than I have for the literary man, but I have always had the greatest objection to making the literary man official, to putting his literary talents to the service of a panel appointed by the Secretary of State for Home Affairs. To my mind, that is a real prostitution of the literary profession.
May I, while I am about it, point out one grievous disadvantage that will flow if this Amendment is accepted? Some of the distinguished literary men who would be on this panel would be in a most awkward position if they were called upon as witnesses for the defence against a prosecution by the Attorney General, who was supposed to have consulted them.
§ VISCOUNT HANWORTH
I would oppose this Amendment for two reasons. In the first place, I think that anybody in the position of Attorney General is well used to consulting whenever this is necessary, and I am sure that if he were not well experienced in the arts himself he would realise that this was one area where he should and could obtain expert opinion. My second objection is that when a panel is appointed, presumably its members are expected to give a unanimous decision. Experts frequently disagree, and if the Attorney General really wants the best advice he can get, the best thing he can do is to consult two or three people, hear their opinion and then form his own decision. I think 968 it would be the greatest mistake to have a panel who are expected to reach settled decisions to advise the Attorney General. No, my Lords, it will not work.
§ LORD STONHAM
I would hesitate to intervene between the conflicting opinions of "literary gents" in this matter, but I believe that it would help to put the point of view of one who would be on the receiving end of this sort of proposal. I am not suggesting that I would appoint this distinguished committee, but sometimes I am asked my opinion about certain people. On behalf of the Home Secretary I submit that this Amendment would put on him an obligation and responsibility which it would be unjust to place upon a Minister of the Crown.
My noble friend Lord Willis said that he supported this Amendment, though not entirely in its present form. I am glad that he did not support it entirely, because this Amendment contains three defects. I have been brought up to believe that no Amendment which was defective could be pressed, though it would perhaps be put right in another place; certainly it could not be supported entirely. My noble friend said that people have deep feelings on this matter. Quite true; and I hope that from the people who have deep feelings on this matter my noble friend Lord Stow Hill and I are not excluded. There seems to be a curious belief that when one becomes a Minister one ceases to have ordinary feelings about matters of this kind. But we do have radical feelings. My own feelings in this matter have not changed.
In regard to this proposition, one has to ask: is it practical? Is it possible? Is it right? On all three questions with regard to this Amendment the answer is, No. It has been said that there is some difficulty in suggesting who will decide what is "informed public opinion". I should like to know what "informed public opinion" is. What do we mean by "informed public opinion" about literary works, plays, works of art?
§ LORD GOODMAN
May I tell the noble Lord what I regard as "informed public opinion"? In theatrical matters, I should regard "informed public opinion" as the people who would not have banned Ghosts and other Ibsen plays 969 at the time when they were banned here, and the people who would not have banned Bernard Shaw's plays at the time when they were banned here. I am absolutely satisfied that the Attorney General of the time would have banned both.
§ LORD STONHAM
In other words, the noble Lord, Lord Goodman, would suggest that those who can decide what is "informed public opinion" would only be selected for negative reasons. All the reasons that he gave were negative ones. We have to be positive about this, and even now the question is not answered. What is "informed public opinion"? Does it mean informed about plays, informed about public reaction, informed about public opinion? The noble Lord, Lord Goodman, indicated that he would not accept an ex-Attorney General. Presumably he would not accept the Lord Chamberlain. Would he accept an ex-Lord Chancellor in the shape of the noble and learned Viscount, Lord Dilhorne?
§ LORD STONHAM
He, I submit, has as much experience in these matters as almost any man. These are real difficulties. It is all very well to say: "This is what I should not like, and this is what I should." But I am considering appointing these people. What would be the position of the Attorney General with, as it were, a jury on both sides? It would be an impossible position.
The object of this Amendment, as I understand it, is wholly right; namely, to ensure that the existence and importance of literary or dramatic merit in a play is fully appreciated before the charges are made. We are all in agreement about that. If this committee was appointed, if we could come to agreement about it (and I do not think for one moment that we could), we should virtually be asking the committee to advise on the extent to which a defence 970 of public good could be raised. In my submission, it would be quite incompatible with the normal processes of justice to ask the very questions which might negative the issue before the court.
§ LORD WILLIS
How does my noble friend square what he has just said about its being incompatible to consult a duly appointed panel with the statement that the Attorney General anyway would consult quite unofficially with other colleagues in this field, and presumably would ask their same opinion on this matter? Where is the difference?
§ LORD STONHAM
I think there is a considerable difference because, presumably, the committee would have to have a hearing in public.
§ LORD STONHAM
All right, then. If they did not have a hearing in public, there would be the belief that it was not fair and right, and it was something secret.
§ LORD WILLIS
I am sorry to interrupt the noble Lord again, but I think he is making this a little too big. I do not conceive that this Amendment demands that all members of the panel who are consulted should be unanimous. They could all be consulted individually, and their reports submitted individually to the Attorney General merely in the way of advice. All this does is to compel them to do something in this respect.
§ LORD STONHAM
In other words, the Attorney General, at the end of the day, if he consulted three people in the form of a panel, and got three different opinions, would be no better off. I heard what my noble friend Lord Stow Hill said when he was Attorney General. But as the Bill now stands, it is a law officer who would make a decision, and he has, or should have, the qualities which enable him to make a decision not only on a matter of law but on what is "informed public opinion ". Whether or not your Lordships agree with me on this, the fact is that the inherent difficulties, the virtual impossibility, of setting up the kind of panel that is asked for so that it would not only serve a useful purpose but carry "informed public opinion" with it, are so great that I think 971 this is an Amendment which should not be sustained.
§ LORD STOW HILL
I intervene for only one minute, primarily because I committed the chief sin of advocacy in over-pitching my case and letting my feelings carry me a bit further than they should carry me. May I just try again. Many noble Lords have come to my rescue, including my noble friend Lord Stonham, but may I put just shortly what I think is in a way rather a difficulty. What has the Attorney General to do? He has first to look at Clause 2. He has to make up his mind whether the effect of the play is as described in Clause 2(1). That is largely—I do not say entirely—a lawyer's province. He has to consider that definition, apply it to the situation as he sees it, and answer the question: Is the play likely to currupt as a whole or is it not? Then he has to consider Clause 3 and balance the two together.
What in fact would the Committee be likely to help him about? I suppose that the noble Lord, Lord Goodman, and my noble friend Lord Willis, who I am afraid I greatly provoked—I apologise—
§ LORD STOW HILL
They would say, and I think they would agree with me about this, "You, the Attorney General, no doubt can bring your mind to bear on these legal problems, but what you might miss" (I do not know whether I report correctly the views of the noble Lords) "is this. You, with your approach, which might be a little over-legalistic, may fail to detect what might be described as a hidden virtue, a hidden merit, in the particular piece under consideration, to which your attention could be drawn if you consult the Committee". I do not know whether that would really be, roughly speaking, an accurate summary of the views of both noble Lords who spoke.
Now, is the likelihood of that really sufficiently strong to make this proposal justifiable, bearing in mind the difficulties which were so cogently and clearly put, I thought, by my noble friend Lord Stonham? I can only say that I hope that an Attorney General who tries to do his duty would be particularly keen to 972 try to see whether there were merits in it. He would study it and analyse it in order to make certain that he had not missed hidden merits of the particular performance that he is looking at. I hope that he would bring a commonsense point of view to bear on it, and that he would not allow himself to fail to take into account the sort of thing that he ought to think about when trying to assess the value of a performance.
On some occasions, I suppose, it might be the case, unless his attention were drawn to it, that he might not sufficiently appreciate a particular merit in a particular work. I can only again say that I think any Attorney General, if he were in doubt, would take the trouble to inform himself, and he would have resort voluntarily, without the compulsion of any Statute, to such advice as he could, get and he would see to it that he had really prepared himself for the decision. Therefore, if I may, on what I would describe as a calmer and less provocative note, put my answer, I would say simply this. There really is not sufficient ground in the circumstances of the case for the setting up of the machinery which Lord Goodman and my noble friend Lord Lloyd of Hampstead propose. That really is the view which I am putting to the Committee and I hope that, on reflection, the noble Lords whose names appear on this Amendment will feel that that really is the case.
§ 9.24 p.m.
§ LORD GOODMAN
This question presents a difficulty. I regard this as a matter of very high importance. I thought that the Chatterley prosecution was a disgrace to a civilised country. I regard it as of exceptional importance to try to devise a means of preventing such prosecutions in future. This Amendment was what I thought was one means of avoiding them. If I may say so, this matter is not to be dealt with by the sort of argument that has been very elegantly and eloquently deployed by the noble Lord, which was rather what I expected.
First, we have of course the presentation of the Attorney General's viewpoint, but happily I have not provoked him into the anger and rage that emerged in the Second Reading debate, because I have made it clear that no reflection at all is intended at all on Attorney 973 Generals. But they have a remarkable power of self-deception. If I may say so, I noticed it when I was a member of the Royal Commission on Tribunals of Inquiry. We had a stream of witnesses, and one of the questions to which we addressed ourselves was whether the Attorney General ought to present the evidence on behalf of the Government in a matter of public importance under investigation. Without exception every legal witness of any distinction—Lord Chancellors, Judges, and so on—said "No, they should not"; without exception every Attorney General and ex-Attorney General said, "Yes, they should". Plainly, of course, they should not, and the Royal Commission arrived at that conclusion.
The second point is the unhappy one that where matters of the mind in the Humanities are concerned there is the odd attitude that learning and experience count for nothing. If we were discussing some scientific subject and I had proposed that the Attorney General should not institute a prosecution on whether water was polluted or whether gas was polluted, or whether rockets should be sent into the air without taking the advice of a scientific committee, no one would think it at all odd. But when you come to at least as important a question, a knowledge of the Drama going back over the centuries, the Attorney General (who knows nothing at all about the subject and makes no pretension to knowing anything) and some of his colleagues, who may have been to a theatre occasionally, suggest that he is quite qualified to undertake this task. If I may say so, that is a complacent attitude which does very little credit to lawyers.
What to do? I cannot press this Amendment to a Division, because if I did we might do some damage to the Bill. I withdraw it reluctantly, and with an invitation to the Government to consider whether there is not a formidable case for taking these matters out of the hands of non-specialists and giving them to writers and dramatists who feel keenly about the subject. The noble Lord, Lord Stonham, said he felt keenly, but if I may say so he has nothing to lose. He is not a writer of plays, and his play is not going to be prosecuted. There is no reason why he should feel keenly, but a writer will feel keenly since he may 974 find that he is prosecuted with little or no reason, simply because somebody does not understand the trend of current drama.
§ LORD STONHAM
Is the noble Lord therefore suggesting that his panel of informed public opinion should be a panel of writers?
§ LORD GOODMAN
I am not suggesting that; nor is there the slightest difficulty in assembling a panel of people who would have the necessary qualifications to fulfil the functions. I am sure if the noble Lord, Lord Stonham, had the job to do he would do it perfectly satisfactorily in a morning. However, I ask leave to withdraw this Amendment, though reluctantly and with an invitation that it be regarded as a serious matter for reconsideration.
§ Amendment, by leave, withdrawn.
§ Clause 8 agreed to.
§ 9.28 p.m.
§ LORD GOODMAN moved, after Clause 8, to insert the following new clause:
§ "Defence, to prosecution under section 2 of omission from play of words specified in notice served by Attorney General.
§ Before instituting any prosecution under section 2 of this Act in relation to a play the Attorney General shall serve or cause to be served a notice on the persons presenting the performance of a play out of which the proposed prosecution arises specifying the words or other part or parts of the play which are alleged to be obscene and it shall be a defence to any prosecution under section 2 of this Act in relation to any performance of the play that that performance omitted all such words or part or parts as aforesaid specified in the said notice and contained no new matter rendering the play obscene.
§ Provided that no such notice need be served by the Attorney General if in the opinion of the Attorney General the nature or extent of the alleged obscene matter is such that it is not practicable to specify the same by way of notice."
§ The noble Lord said: I will try to move this Amendment with considerable speed. I can do so briefly, although I think it is an important Amendment and, if I may say so, I have to change my tack completely. My previous Amendment and the arguments I deployed in favour of it were addressed to rather loftier considerations. This is directed almost entirely to commercial considerations.975
§ What I want to do is to try to mitigate the risks in the minds of producers, managements and other people who will now be putting on plays, of the disappearance of the insurance factor that they enjoyed with the Lord Chamberlain. Until the Lord Chamberlain disappears a management putting on a play, or an author having his play produced, had the certain knowledge that the play was safe from prosecution. It had the effect that the play could be invested in, and this is the factor with which I am very much concerned. Investment in a stage play to-day in London is a very serious matter; the ordinary stage play—not a musical—might quite easily involve an investment of between £25,000 and £50,000 if there are not too many people in the cast—certainly £25,000, up to £50,000. A musical play may involve an investment of up to £150,000. It has to be borne in mind that until this Bill becomes law anyone who makes that investment will know that it is subject to the ordinary commercial risk that the public may not come, but will equally know that he is not subjected to the special risk that the only people who are concerned to pass through the doors are members of the police force; and that the play may be closed on the first night of the production.
§ I think this will inevitably have a discouraging effect on commercial managements. It will therefore have an effect going beyond concern about plays which are actually marginal. I think a number of the plays which have been licensed by the present Lord Chamberlain (who has I think in many instances shown a very progressive attitude towards the theatre, although there have been causes for complaint in certain instances but very few) would not be put on by commercial managements after this Bill comes into effect until they become sure of the climate of opinion prevailing. My Amendment is designed to ensure that before a summons is actually issued there should also he served a notice which specifies obscenities of which the prosecution will complain, if it is possible to specify. If it is not possible, if the play is shot through and through with obscenity or they are not of a character to be put into a notice, there is no obligation to do so. If he serves a notice and if a version of the play is then put 976 on which omits the matters of which complaint is made that should not thereafter constitute an offence.
§ This is a naked commercial purpose. The management will recognise if there are passages in the play about which there might be doubt; he will know he can save his investment and allow the play to continue if he is prepared to make the changes required by the notice. The objection may be raised by noble Lords—it may be raised by the noble Lord, Lord Willis—that he does not want management to make changes in his play. I think the answer is that he will control the situation contractually. Ordinarily management cannot make changes without the author's consent. The author can retain his contractual right, and if the notice is to be complied with it would require the author's consent. If the author says, "This complaint is preposterous; let us fight it", that would be done. If both parties agreed that it was reasonable to make the changes until it was established whether or not the prosecution was validly launched, the changes could be made and the investment would be secured for that period of time. This is the sole and solitary purpose of this Amendment. It is not in the least designed to detract from the whole principle of the Bill. It is not designed to change the decision that we are doing away with the Lord Chamberlain in these matters—and I think rightly. It is designed as a simple measure to try to instil a higher sense of security in managements and to avoid the refusal of plays of a progressive kind during the transition period until we know what things are about. I beg to move.
After Clause 8, insert the said new clause. —(Lord Goodman.)
§ LORD LLOYD OF HAMPSTEAD
At this late hour I am not going to make another speech. I should simply like to say, in support of this Amendment, that it is designed to relieve the management in certain cases of the appalling dilemma of either having to close down the play or possibly face financial ruin. I would submit it would introduce a very useful safeguard and one which is deserving of very careful consideration.
§ LORD STOW HILL
I would respectfully advise the Committee not to accept 977 this Amendment, and I know that my noble friend Lord Lloyd of Hampstead and the noble Lord, Lord Goodman, will be disappointed in my answer, as they were disappointed in my last answer. But I really feel this is the right answer. I would ask the noble Lord exactly how this Amendment is proposed to work. May I read a portion of the Amendment? Halfway down the first paragraph it says:… it shall be a defence to any prosecution under section 2 of this Act in relation to any performance of the play that that performance omitted all such words … as specified in the said notice …Either the performance contained the words or it did not contain the words. If it contained the words why on earth should there not be a prosecution? If it did not contain the words, how on earth could there be a prosecution? It seems to me that there is some slight confusion of thought in this.
§ LORD GOODMAN
I hesitate to interrupt, but it is important at this time that we understand what we are talking about. I think that legitimately there is some confusion of thought, but I do not think it is on my part. I think the Amendment is perfectly clear. The point is that the management will not know what to take out unless they are told by the prosecutor what it is that he complains about. The notice therefore specifies the matter of which the prosecutor complains—not matter which is necessarily obscene—and upon which the prosecution is based. If that material is expunged from the play it is a defence thereafter to any suggestion of obscenity that subsequent performances did not contain that material.
§ LORD STOW HILL
It seems to me that if that is the effect it is supposed to have, then it is a thoroughly undesirable Amendment. I do not think there is the least confusion of thought on my part about this. I think it is a bad Amendment, and I will explain why. If the proposal is that somebody may put on a play with as much filth in it as he likes, in the secure knowledge that he may in due course before any proceedings are taken against him, receive a notice saying, "Take out the following passages to which we object", and that he knows that if he then takes out those passages 978 he will not be prosecuted for having put them in I can only say that that is a form of brinkmanship which does not—
§ LORD GOODMAN
I am sorry to interrupt my noble friend again, but it says no such thing. There is no suggestion that he will not be prosecuted for the original performances which contained the material. That would be quite wrong. All it says is that, notwithstanding that he may be prosecuted for the performances which contained the obscenities, he can continue to perform the play if he removes the obscenities after the summons has been issued.
§ LORD STOW HILL
Then what on earth is the point of the notice? It does not seem that the notice has the slightest point. If he puts on an indecent clay, an obscene play, and he then gets a notice saying, "Will you leave out the following passages", and there is then a prosecution in respect of that play, what on earth is the point of saying that if thereafter, he leaves out those passages he will not again be prosecuted for continuing to produce the play? It seems to me completely pointless. I cannot understand what the guarantee which is supposed to accrue to the playwright, is supposed to consist in.
In point of fact, as the Bill is worded at the moment, he has the security that the Attorney General will not prosecute in a frivolous case. All this Amendment proposes is that when a play is put on and it contains objectionable passages, if the Attorney General serves notice and starts his prosecution the prosecution shall go on and the playwright or the producer shall run the risk of conviction or imprisonment, of whatever may happen to him; but thereafter, if having had a prosecution launched against him, he takes out the indecent parts of the play so that it is no longer indecent he will not be prosecuted again. That is a statement of the obvious, and a result which must necessarily ensue even if this Amendment were never thought of. I do not see what the Amendment does to improve the situation. I should not have thought it gave the least security of mind to the person who is thinking of putting on a play. If a person puts on a play which is indecent, 979 then so far as this Amendment is concerned he is prosecuted. All that happens is that he has the additional advantage of getting a notice saying the words which are objected to. But he is prosecuted just the same, and if he takes them out he is not prosecuted again. He would not be prosecuted again anyhow because the play would not contain anything indecent.
§ LORD WILLIS
If my noble friend will allow me, may I say that I think that his answer so far only reinforces the argument made in regard to the previous Amendment that has been withdrawn. The point really is not this. The point is that a considerable investment in time, labour and money has been put into a play. It may be judged, in part and in single passages, to be obscene and to offend.
All we are saying is that if it is so classed as obscene and a prosecution is going to be taken against it, at that point it will be closed, all the money will be lost, all the actors will be out of work, all the work will be wasted. But if the author and the management and the directors knew at the point of the serving of the prosecution what was considered offensive about the play and were prepared in the interim, while the prosecution about the original production was going on, to remove the matter the Attorney General thought was offensive, then the play could continue to run, the actors continue to work, the investors continue to earn their money, and the theatre continue to be occupied. As the Bill stands at present, the moment the prosecution starts the actors are out of work and the play is finished. The Amendment may not be perfectly worded—I am sure the movers of the Amendment would agree with that—but there is an important principle here which I think should be considered and, late as it is, I do not think we should hurry it on and have something which is inadequate.
§ VISCOUNT HANWORTH
It seems to me there is a perfectly simple answer to this one. If the play has been put on and is considered by the Attorney General to be obscene, I think that whoever has put it on must play safe and must take out anything that they think could be reasonably objected to so that they do not get prosecuted again. I do not see why one should go out of one's 980 way to see them so that they can keep the play as dirty as possible. That is really what this Amendment is asking us to do.
§ LORD STOW HILL
I am sympathetic with any proposal which will bring a feeling of justified security to a person who wishes to put on a play, and if I could co-operate with the noble Lord I would gladly do so, but I honestly do not think that he has produced any machinery which might have that result. Somebody produces a play, it is put on the boards, it is then seen and it is thought to be obscene within the meaning of the Act. The Attorney General then decides to prosecute. If this Amendment is accepted, he serves a notice setting out, if he can do so, the parts of the play to which he thinks objection should be taken. I am quite sure that the noble Lord agrees with me so far. Then the prosecution starts. The prosecution is not stopped; it starts, and the summons is served and the ordinary proceedings take their course. In due course it gets to the Central Criminal Court, or wherever it is to be tried.
Once that has happened, once the summons is served or at any time, even without notice from the Attorney General, it is perfectly open to those who produce the play to remove from the play those parts which may offend against the law, and they can then carry on with their play, just as if it had never been objectionable at all. Their investment is saved. I am saying perfectly seriously to my noble friends Lord Willis and Lord Goodman, that I do not think they have, by the Amendment they have devised, produced any machinery which will produce any useful result. This can be done, notice or no notice.
There is, I think, a subsidiary difficulty. I know the Amendment does not require that there shall be notice if it is not practicable to specify the particular parts, but, after all, we all knew from the very beginning of our consideration of this Bill that it is the effect of the play as a whole that is relevant, not specific parts. So even if the Attorney General did his best to comply by giving a notice of that sort, it might be to take out Act 1, 2, 3, 4, or 5, I do not suppose it would be very informative, as the issue which would come before the court would be not whether some 981 particular passage was objectionable but whether the play as a whole was objectionable.
That is not my main objection to this proposal. My main objection, if I may respectfully repeat it once and for all, is that it just will not improve the situation. It will give nobody the least security. It will simply mean that the Attorney General serves a piece of paper on those concerned which has not the slightest effect. It does not stop a prosecution, nor does it enable them to remove what they could have removed, notice or no notice.
§ LORD GOODMAN
I have never been so conscious of the inadequacies of my exposition as I am this evening. It is quite clear that I have totally failed to explain the purpose of the Amendment, which is very simple. The man prosecuted will not know what it is that the prosecution are complaining of unless they tell him. It displays no tremendous knowledge of the theatre to believe that, with a contemporary play, the management, having been informed that he is about to be prosecuted, would run through the material and of his own decision excise those parts which he thinks will make him safe. This would be a great nonsense. He can only be safe if he is told what it is the prosecution is complaining of, not what he thinks the prosecution is complaining of. If a notice of this kind is served, that notice gives the management a chance to continue with the play. If it is not served, he can make a brave effort as regards some plays, but as regards other plays he will not do so.
There can be no harm, so far as I can see, in accepting this Amendment. In fact it would do a good deal of good and might save money for the theatre in the transitional period. I should like on this Amendment to adopt the course followed by the noble and learned Viscount, Lord Dilhorne, in withdrawing his own Amendment, and withdraw my Amendment on the basis that I might like to consider whether it would be permissible to put it down on Report. It might benefit from a little polishing, but I think that it is an Amendment which requires to be pressed a little more in the interests of the theatre. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.982
§ Clauses 9 to 13 agreed to.
§ LORD STOW HILL
We have made fair progress on the Bill. I know your Lordships have a great deal more business to transact this evening. I do not know whether it would be for the convenience of the Committee to adjourn further consideration of this particular Bill. In the hope that your Lordships will think that is a convenient course, I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.